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Case: 16-60508 Document: 00514295605 Page: 1 Date Filed: 01/05/2018

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-60508 FILED


January 5, 2018
Lyle W. Cayce
VAUGHN PERRET; CHARLES LEARY, Clerk

Plaintiffs – Appellants

v.

DOUG K. HANDSHOE,

Defendant – Appellee.

Appeal from the United States District Court


for the Southern District of Mississippi
USDC No. 1:12-CV-90

Before DAVIS, HAYNES, and COSTA, Circuit Judges.


PER CURIAM:*
Appellants challenge the district court’s order denying Appellants’
Federal Rule of Civil Procedure 60(b)(4) motion to vacate for lack of subject-
matter jurisdiction. Because the district court did not err in finding diversity
jurisdiction under § 4103 of the Securing the Protection of our Enduring and
Established Constitutional Heritage (“SPEECH”) Act, 1 we AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 28 U.S.C. §4101 et seq.
Case: 16-60508 Document: 00514295605 Page: 2 Date Filed: 01/05/2018

No. 16-60508
I. FACTUAL AND PROCEDURAL BACKGROUND
Vaughn Perret and Charles Leary are Nova Scotian residents and the
sole principals of Trout Point Lodge, Ltd., a Nova Scotian company that owns
the Trout Point Lodge Resort & Hotel. In 2011, Perret, Leary, and Trout Point
(collectively “Appellants”) filed suit in the Supreme Court of Nova Scotia
alleging that Doug Handshoe (“Handshoe”), a Mississippi resident and owner-
operator of the blog “Slabbed,” defamed Appellants in a series of blog
publications. Handshoe did not appear, and the Nova Scotian court
consequently entered a default judgment against him.
In 2012, Appellants filed a “motion to enroll” the Nova Scotian judgment
in Mississippi state court. The motion, which consisted of a single paragraph,
did not include any jurisdictional allegations. Handshoe subsequently filed a
timely notice of removal, alleging that the district court for the Southern
District of Mississippi had federal question jurisdiction over the case pursuant
to the SPEECH Act. Appellants did not contest the removal at the time, nor
did they file a motion to remand. The district court eventually granted
summary judgment in favor of Handshoe, declining to recognize the Nova
Scotian judgment under the substantive standard set forth in the SPEECH
Act. 2 Appellants appealed to this Court, and we affirmed. 3
Three years after our mandate issued affirming the district court’s
summary judgment, Appellants filed a Rule 60(b)(4) motion to vacate the
judgment, contending that it was void for want of subject-matter jurisdiction
because the parties were not diverse as contemplated by § 4103 of the SPEECH
Act. The district court, however, found that the parties were diverse and denied
Appellants’ motion. Appellants timely appealed.

2 28 U.S.C. § 4102.
3 Trout Point Lodge, Ltd. v. Handshoe (Trout Point I), 729 F.3d 481, 496 (5th Cir.
2013).
2
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No. 16-60508
II. STANDARD OF REVIEW
We review de novo the district court’s denial of a Rule 60(b)(4) motion. 4
Federal courts may set aside judgments under Rule 60(b)(4) in two
circumstances: (1) if the district court lacked personal or subject-matter
jurisdiction; or (2) if the district court acted in a manner inconsistent with due
process of law. 5 When an appellant alleges the former, we sustain a Rule
60(b)(4) challenge “only where there is a ‘clear usurpation of power’ or ‘total
want of jurisdiction.’” 6 In other words, the district court must have “lacked
even an ‘arguable basis’” for exercising jurisdiction over the case. 7
III. DISCUSSION
The district court found that it had removal jurisdiction under § 4103 of
the SPEECH Act, which permits removal of state court actions to enforce
foreign defamation judgments where “any plaintiff is a foreign state or a citizen
or subject of a foreign state and any defendant is a citizen of a State.” 8
Appellants argue that the district court’s finding is not supported by the record.
We disagree for the reasons set forth below. 9

4 Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998).


5 Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d 204, 208 (5th Cir. 2003).
6 Id. (citing Nemaizer v. Baker, 793 F.2d 58, 64–65 (2d Cir. 1986)).
7 United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (citing

Nemaizer, 793 F.2d at 65). Assuming that the district court committed jurisdictional error, it
must have been “egregious.” Callon, 351 F.3d at 208 (citing United States v. Tittjung, 235
F.3d 330, 335 (7th Cir. 2000)).
8 28 U.S.C. § 4103(2). This type of diversity jurisdiction is commonly referred to as

“minimal diversity.” See Nolan v. Boeing Co., 919 F.2d 1058, 1063 (5th Cir. 1990).
9 Appellants contend that, because Handshoe did not affirmatively plead diversity of

the parties in his notice of removal, we cannot affirm the district court’s finding that diversity
existed. We disagree. Although Handshoe did not initially allege diversity of citizenship,
because there is evidence of diversity in the record, and because Appellants did not allege a
lack of diversity in Trout Point I, we “allow [Handshoe] to amend [his notice of removal] to
correct for [its] technical deficiency” under 28 U.S.C. § 1653. Howery v. Allstate Inc. Co., 243
F.3d 912, 920 (5th Cir. 2001); see also Stafford v. Mobil Oil Corp., 945 F.2d 803, 806 (5th Cir.
1991) (“Thus, [s]ection 1653 provides a method for curing defective allegations of jurisdiction’
where the defect is merely one of the pleading and not one of an absence of proof of facts
3
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No. 16-60508
Appellants themselves filed affidavits into the record stating that Trout
Point Lodge, Ltd. was a Canadian corporation operating only in Canada. The
record likewise contained several documents, including an affidavit from
Appellants’ former counsel, a transcript of the default judgment hearing in
Nova Scotia, and various e-mails indicating that Handshoe was a Mississippi
domiciliary operating his business in Mississippi. 10 Because diversity under §
4103 exists where, as here, a plaintiff is a Canadian citizen and a defendant is
a Mississippi citizen, 11 we reject Appellants’ argument that the district court’s
finding was not supported by the record.
Moreover, Appellants received a full and fair opportunity to challenge
jurisdiction. Appellants could have objected to the initial notice of removal,
filed a motion to remand the case to state court, objected to jurisdiction at the
summary-judgment hearing, or raised jurisdictional arguments on direct
appeal. Nevertheless, they declined to do so. While we recognize that the
Appellants retained the ability to challenge lack of subject-matter jurisdiction
through a Rule 60(b)(4) motion, that challenge cannot disturb a final judgment
where the district court had more than an “arguable basis” for exercising
jurisdiction over the case. 12

necessary to establish diversity of citizenship.”) (internal citations and quotation marks


omitted).
10 Indeed, in Trout Point I, this Court referred to Handshoe as “a Mississippi citizen.”

729 F.3d at 483.


11 See 28 U.S.C. § 4103(2); see also Langfitt v. Fed. Marine Terminals, Inc., 647 F.3d

1116, 1119 n.7 (11th Cir. 2011) (“Diversity existed because Langfitt is a Florida citizen and
FMT is a Canadian corporation.”); Ottawa Office Intergration Inc. v. FTF Bus. Sys., Inc., 132
F. Supp. 2d 215, 219 (S.D.N.Y. 2001) (“In this case, federal jurisdiction is based on diversity
of citizenship of the parties—Ottawa is a Canadian corporation with its principal place of
business in Canada and defendants are citizens of New York State.”).
12 Also, the district court arguably had federal question jurisdiction over this case.

Under the SPEECH Act, when a plaintiff seeks to enforce a foreign defamation judgment, a
court necessarily must construe provisions of federal law that are central to the plaintiff’s
claim. Cf. Naoko Ohno v. Yuko Tasuma, 723 F.3d 984, 1004 n.22 (9th Cir. 2013) (“Federal
law now controls domestic actions seeking recognition of foreign defamation judgments.”).
4
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No. 16-60508
IV. CONCLUSION
For these reasons, the district court properly denied Appellants’ Rule
60(b)(4) motion to vacate. We therefore AFFIRM.

While we think the centrality of federal law in cases arising under the SPEECH Act provides
strong justification for exercising federal question jurisdiction, we need not reach that issue
in this case.
5
Case: 16-60508 Document: 00514295616 Page: 1 Date Filed: 01/05/2018 Print Form
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BILL OF COSTS

NOTE: The Bill of Costs is due in this office within 14 days from the date of the
opinion, See FED . R. APP. P. & 5T H CIR . R. 39. Untimely bills of costs must be
accompanied by a separate motion to file out of time, which the court may deny.

_______________________________________________ v. __________________________________________ No. _____________________

The Clerk is requested to tax the following costs against: _________________________________________________________________________________________

COSTS TAXABLE UNDER REQUESTED ALLOW ED


Fed. R. App. P. & 5 th Cir. R. 39 (If different from amount requested)

No. of Copies Pages Per Copy Cost per Page* Total Cost No. of Pages per Cost per Page* Total Cost
Documents Document

Docket Fee ($500.00)

Appendix or Record Excerpts

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

Other:

Total $ ________________ Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.

LYLE W.CA Y C E , C LERK


State of
County of _________________________________________________ By ____________________________________________
Deputy Clerk

I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were
incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to
opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.

_____________________________________________________________________
(Signature)
*SEE REVERSE SIDE FOR RULES
GOVERNING TAXATION OF COSTS Attorney for __________________________________________
Case: 16-60508 Document: 00514295616 Page: 2 Date Filed: 01/05/2018
FIFTH CIRCUIT RULE 39

39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover,
index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5 T H C IR . R. 32.2.3that mandates that briefs must lie reasonably flat when open shall
be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally
available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies
of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.

39.2 Nonrecovery of Mailing and Com m ercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.

39.3 Tim e for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in F ED . R. A PP . P. 39(D ). See 5 T H C IR . R. 26.1.

F ED . R. A P P . P. 39. COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.

©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records
authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of
copying.

(d) Bill of costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate
issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate.

(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.


Case: 16-60508 Document: 00514295617 Page: 1 Date Filed: 01/05/2018

United States Court of Appeals


FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

January 05, 2018


MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 16-60508 Trout Point Lodge, Limited, et al v. Doug
Handshoe
USDC No. 1:12-CV-90
---------------------------------------------------
Enclosed is a copy of the court's decision. The court has entered
judgment under FED R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED R. APP. P. 39 through 41, and 5TH CIR. R.s 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH CIR. R.s 35 and 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order. Please
read carefully the Internal Operating Procedures (IOP's) following
FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for
a stay of mandate under FED R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay
or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under FED R. APP. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order. If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari. Additionally, you MUST confirm that
this information was given to your client, within the body of your
motion to withdraw as counsel.
Case: 16-60508 Document: 00514295617 Page: 2 Date Filed: 01/05/2018

The judgment entered provides that plaintiffs-appellants pay to


defendant-appellee the costs on appeal.

Sincerely,
LYLE W. CAYCE, Clerk

By: _______________________
Allen C. McIlwain, Deputy Clerk
Enclosure(s)
Mr. Charles Leary
Mr. Vaughn Perret
Mr. Jack Etherton Truitt