Mathew Bender & Co.
Inc
26-5
Moore's Forms
RELIEF FROM JUDGMENT OR ORDER: RULE 60
Comment on Rule 60
Rule 60 governs the various methods of obtaining relief from
a judgment. The two subsections of the rule provide quite different remedies.
Rule 60(a) deals with correction of "clerical" errors and thus ensures that
orders, judgment, and other parts of the court's record are an accurate
reflection of the true actions and intent of the court. In contrast, Rule 60(b)
provides relief from judgments and orders even when the "errors" in them are
substantive, that is, even when the judgment or order accurately reflects what
the court intended to decide. Rule 60(b) allows for the setting aside of
intended judgments and orders when the moving party shows one or more of the
grounds for relief specified in the rule, and the court determines to exescise
its discretion to grant the requested relief.
For a detailed analysis of all of the issues raised by the
rule and the procedures prescribed by it, see 12 Moore's Federal Practice, Ch.
60, Relief From Judgment or Order (Matthew Bender, 3d ed.).
Summary of Rule Provisions
Rule 60(a)-Clerical Mistakes
Rule allows court to make changes in judgments, orders, and
"record," to assure that they reflect true intern of court. Rule 60(a) enables
a court to ensure that its judgments, orders, and "other parts of the record"
are an accurate reflection of the true actions and intent of the court and the
parties.I For example, when a consent decree directed an award of interest
"according to law, but inadvertently listed the contract rate of 18%, the
decree could be corrected to reflect actual agreement to use legal rate of
interest of 8.72%.' However, Rule 60(a) does not mean that a court's judgments,
orders, and record are open to constant "correction" of all types. The rule
allows only correction of "clerical" mistakes--mistakes that cause a judgment,
order, or some other part of the record to reflect something other than what
was actually decided or what actually transpired. Rule 60(a) may not be used to
open up a judgment for the purpose of correcting a decision or order that the
court actually intended but that it subsequently determines is erroneous.'
While the language of Rule 60(a) leaves
1 See Fed. IL Civ. P.
60(a).
2 United States v. Griffin, 782 P.2d 1393. 1396 (7th Cir. 1986).
3
See, e.g.. Tnzakoski v. ESPN, Inc., 60 F.3d IL Civ. P. 60(a)). 74, 77-78 (2d
Cir. 1995) (issue in question 54 could have been decided, and probably should
have been decided, but if its omission was error it was substantive error
beyond reach of Fed. R. P.6-0(a).
26-6 [scanner errors not corrected in non-relevant
sections]
no doubt as to a court's power to correct clerical mistakes
in judgments or orders, the rule does not define what constitutes a "record"
for purposes of correction of clerical mistakes in the record. Nonetheless, a
broad interpretation of of the term should be applied by the courts. For
example, when a judgment in favor of the United States on an SHA loan was
challenged, Rule 60(a) was used as the mechanism for supplementing the court's
record to supply all of the loan documents and assignment papers inadvertently
omitted from the court's record'
"Clerical errors" may be committed by court or parties. Rule
60(a) authorize.s relief from a "clerical" mistake,5 but the term "clerical" is
not interpreted too literally. The error in question need not be committed by
the clerk or even by the court. The rule may also be used to correct mistakes
made by the jury or by a party, so long as the result is that the judgment,
order, or record of the court does not accurately reflect what actually
transpired or what actually was decided.'
Transcription, transposition, or computational mistakes are
the type of errors that qualify as "clerical." The typical clerical mistake is
one that occurs in transcribing the judgment. For example, one court intended,
in its original judgment, to simply recite the stipulation of the parties
concerning attorney's fees but, in doing so, misstated the amounts agreed to
for fees. That type of error in expression was remediable under Rule 60(a).?
Similarly, a computational error is a classic example of a mechanical or
clerical mistake.' Simple transposition errors resemble computational mistakes,
and are almost always correctable as clerical mistakes under Rule 60(a). Thus,
for example, in a case in which all of the documentary evidence and testimony
referred unambiguously to damages in the amount of $296,686.89, a special
interrogatory submitted by the court to the jury asked about damages in the sum
of $269,689.89. This was a simple, unintended transposition of the second and
third digits. The court was within the scope of Rule 60(a) when it corrected
the verdict in its judgment to reflect the correct amount of damages.' Other
examples of these types of "clerical" mistakes include:
4 See,
e.g.. United States v. Stuart, 392 R2d 60, 62-63 (3d Cir. 1968).
5 Fed. R.
Civ. P. 60(a).
6 See, e.g., Matter of West Texas Mktg. Corp., 12 F.M 497,
503-504 (5th Cir. 1994). Dora-Wood Treating Co. v. Century Forest Indus., 694
F.2d 112, 114 (5th Cir. 1982) (amount of fees agreed on were $4,680 for teal
and $2,100 for appeal, but court erroneously stated that agreed fees were
$2,100 for entire action).
7 See, e.g., Matter of West Texas Mktg. Crap.,
12 F.3d 497,504(5th Cir. 1994) (in tax dispute, if government shows that refund
overpayment sent to bankruptcy trustee did not reflect the parties' intentions
and resulted from computadons! error, then district court may correct error
under Fed. R. Civ. P. 60(a)). 8 Baquire Radio & Bier. V. Montgomeiy Ward,
804 F.2d 787, 795-796 (2d Cir~ 1986) ("It is a court's responsibility to
correct a judgment that is based upon a clerical errot").
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· An inaccurate description in the court's
order of the metes and bout of property to which an easement applied; 10
· The judgment should have reflected that the
defendants were join liable for the entire amount of the judgment, but the
verdict failed reflect this because the court's jury instructions were
ambiguous;1
· A summary judgment order in a class action
inadvertently referred the wrong subpart of Rule 23 applicable to plaintiff
class; 1*
"Clerical" errors also include unintended ambiguity. Rule
60(a) is not limii to situations in which a judgment unequivocally
misrepresents what the co meant to state. A district court "may also invoke
Rule 60(a) to resolve ambiguity in its original order to more clearly reflect
contemporaneous int~ and ensure that the court's purpose is fully
implemented."13 Examples ambiguous judgments that could be clarified pursuant
to Rule 60(a) includi
· A judgment including an award of
prejudgment interest but leaving calculation of interest for laterl4
· An agreed judgment dismissing a case on forum non
convenic grounds that was ambiguous as to the extent to which the movi
defendant was required to waive the statute of limitations defense
· A judgment too vague to permit enforcement, e.g.,
a case in wh~ plaintiff brought a successful action to cancel the defendan
10 In re Village By The Sea, Inc., 98 B.R.
93, 95 (Bkrtcy. S.D. Pta. 1989) (terms of order were different from relief that
bankruptcy court intended to award when it entered order). 11 United States v.
Sullivan, I F.3d 1191,1197 (11th Cir. 1993) (if defendants were liable at all,
they were, as matter of law, jointly liable, and verdicts assigning separate
damage amounts to each defendant clearly were result of misleading jury
instructions). l2 anghter v. Eastern Airlines, Inc., 817 F.2d 685, 691 (11th
Cir. 1987) (amendment of summaly judgment order claril~'ing subpart of Fed. R.
Civ. P. 23(b) applicable to plaintiff class was proper under Fed. R. Civ. P.
60(a) because citation in judgment defined plaintiff class in manner
inconsistent with prior proceedings in case and intent of court and parties).
13 See. e.g., Burton v. Johnson, 975 F.2d 690, 694(10th Cir. 1992) (court's
order that prisoner was to be "discharged" if new trial not o menced within 90
days was unclear as whether prisoner was to be released pend new trial or
whether charges against him i' to be dismissed). 14 Pogor v. Makita U.S A,
Inc., 135 F.3d 386-388 (6th Cir. 1998) (judgment exprec included award of
statutosy interest as "alIc able" under applicable state law; therefc
subsequent motion to set amount of interest not seek to alter or amend
judgment, but sin asked court to perform ministerial task of ins in8 Omitted
particulars of interest). 15 Panama Processes, S.A. v. Cities Sen Co., 789 F.2d
991, 994-995 (2d Cir. 19 (record was clear that court's original intent~ that
waiver applied only in courts of Brazil;' District Court had the authority to
amend Consent Judgment under Rule 60(a) and. the amended judgment reflected the
cow original intent").
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trademarks, but the judgment did not specify the
trademarks by registration number.'
Of course, a court may never use Rule 60(a) to correct
"ambiguities" in a dgment or order to reflect anything other than the court's
intent, as evidenced y the record, at the time the original judgment or order
was entered. A ibstantive change in the judgment may not be disguised as a
"clarification."'7
"Clerical errors" include mistakes of omission. Clerical
mistakes correctable icier Rule 60(a) are not limited to errors of commission,
in which the court's tention on a matter is misstated or stated ambiguously.
The Rule expressly 'ovides the court with power to deal with clerical mistakes
"arising from versight or omission." IS What this means is that a court may
correct a clerical istake involving afailure to state as well as clerical
misstatements." Examples errors of omission include:
· A failure to name a party in a notice of appealS
· The court fails to include liquidated damages in
a judgment, despite its clear intent to do so, as expressed in its findings of
fact;'1 "Clerical" error of omission does not include
error in failing to determine sue. The distinction between a correctable error
of omission that simply )nceal5 a court's true intentions, and a noncorrectable
omission that reflects e court's true intent, but is legally erroneous, is not
an easy one to draw. Thus, r example, if there is no indication in the record
that the issue of prejudgement iterest was discussed or that the court intended
to award it to a successful
l6 Robi v. Five Platters, Inc., 918
F.2d 1439, 145 (9th dr. 1990) (Fed. R. Civ. P. 60(a) rmits district court to
amend judgment cancelg all of defendant's trademarks that referred "The
Platters").
17 See Burton v. Johnson. 975 F.2d 690,694 0th Cir. 1992) ("A
district court is not permitd. . . to clarify a judgment pursuant to Rule 1(a)
to reflect a new and subsequent intent muse it perceives the Original judgment
to be correct"). "
18 Fed. R. Civ. P. 60(a); see also Dura-Wood resting Co.
v. Century Forest Indus., 694 F.2d 2. 114(5th Cir. 1982) (on remand, trial
court ~perly revised upward amount of attorney's es awarded top~~, despite no
complaint mut that errur in first appeal, because revision flected stipulation
entered into record by sties). 18
19 See, e.g.' Frederick v. Mobil Oil Co.,
765 F.2d 442, 450 (5th Cu. 1985) (additions to judgment to reflect court's true
intent are per. missible under Rule 60(a);"We think it is clear that the
changes made. . ..... . judgment were of a clerical nature and that the
district court had the jurisdiction to make them under Rule 60(a)").
20
Chican Educ. & Manpower Services v. U.S. Dep't of Labor, 909 F.2d
1320,1329(9th Cu. 1990) ("F.R.C.P. 60(a) specifically contemplates that an
appellate court may remand to a lower court to correct clerical errors").
21 Cha v. Balesh, 704 F.2d 774,776(5th Cu. 1983) (not abuse of discretion
to correct judgment to award liquidated damages topl~. tiff because court's
findings of fact indicated court's intention to award liquidated damages. and
original judgment stated that it was being made according to those findings of
fact).
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plaintiff, the omission of prejudgment interest
in the judgment may not be "corrected" under Rule 60(a). 22 Resolution of a
dispute over correctability of an error of omission usually turns on what
evidence there is in the record as to the court's actual intent at the time of
the original judgment or order. 23 There are, however, times when the law
itself establishes that an omission is indisputably a clerical mistake. if, for
example, a statute requires the clerk to add prejudgment interest from the time
of the verdict to the time that the judgment is entered, there is a mandatory,
clerical duty to add that interest, if the clerk omits this interest in the
judgment, the intent of the court is irrelevant, and the omission may be
remedied under Rule 60(a). 24 However, if a statute merely provides that a
prevailing party is entitled to an award of prejudgment interest, and does not
provide for the clerk to automatically enter the amount, an omission of
prejudgment interest in the judgment may be either inadvertent clerical error
or a substantive legal error that may not be remedied under Rule 60(a). The
record will have to be examined to determine the court's intent at the time of
the judgment. 25
There is no time limit on correction of clerical errors. A
district court may correct 'clerical mistakes" "at any time. 26 This provision
has been interpreted quite literally by the courts. 27 A district court may
correct "clerical errors" even after an appellate court has decided the case.
Although Rule 60(a) is silent on this issue, most courts have held that
appellate review of a judgment does not preclude later district court action
pursuant to Rule 60(a) as long as (1) the correction is of the type envisioned
by Rule 60(a), and (2) the appellate court has not ruled explicitly or
implicitly on the issue that is the subject of the correction.
If appeal is pending and has been docketed, district court
requires permission from appellate court to correct clerical error. The
situation is different if an appeal is actually pending when the district court
attempts to correct a clerical
22 Paddinglon Partners v.
Bouchard, 34 F.3d 1132. 1140 (2d Cir. 1994).
23 See In re Frigitemp Corp.,
781 F. 2d 324,
(2d Cir. 1986) ("There is no clear indication in the record
that when the district court ruled on the Trustee's preference claims, it
decided to grant prejudgment interest").
24 Lee v. Joseph B. Seagram &
Sons, Inc., 592 F.2d 39, 43 (2d Cir. 1979).
25 Lee v. Joseph E. Seagram
& Sons, Inc., 592 F.2d 39, 43 (26 Cir. 1979) ("where the failure to include
prejudgment interest to which a plaintiff is entitled is not due to clerical
inadver tence, Rule 60(a). . . is not the appropriate vehicle for relief" ").
26 Fed. R. Civ. P. 60(a).
27 See. e.g., Chavez v. Balesh, 704 F.2d 774,
776-777(5th Cir. 1983) (no abuse of discretion in correcting judgment 86 days
after entry to award liquidated damages when court's original intent to make
award abundantly clear from record).
28 See. e.g., In re Marc Rich &
Co. A.G., 739 P.26 834, 837-838 (26 Cir. 1984) (true "clerical" errors not
ruled on by appellate court may be corrected after appeal under Fed. R. Civ. P.
60(a)).
26-10
error. As noted, there is no obstacle to
correction of clerical errors after the appeal has been concluded, there is a
different rule when an appeal is actually pending. A district court may
continue to correct clerical mistakes as if no appeal were pending until the
appeal is "docketed."'S However, an appeal is docketed~ that is to say entered
onto the docket of the court of appeals, when the clerk of the court of appeal
receives the notice of appeal and the district court docket entries from the
district court clerk.' After the appeal is docketed, and for the remainder of
the time the appeal is pending, the district court may correct clerical errors
under Rule 60(a) only with the permission of the appellate court'1
No formal requirements are needed to invoke Rule
60(a). A district court may exercise the power conferred by Rule 60(a) sua
sponte.' At least when the mistake is apparent from the face of the record, no
notice is required to be given any party. The court may simply issue its order
correcting an obvious clerical mistake." Of course, a district court may also
correct clerical mistakes in response to a party's motion. ~6 If a motion is
filed with the court, notice will have to be given to all parties to the
action.
Rule 60(b)-Mistakes; Inadvertence; Excusable Neglect;
Newly Discovered Evidence; Fraud, Etc.
Relief from judgment, apart from appeal, is available only
in limited circumstances. Rule 60(b) enables a court to grant a party relief
from a judgment under circumstances in which the need for truth outweighs the
value of finality in litigation. Rule 60(b) is not a substitute for a proper
and timely appeal, however. The scope of relief that may be obtained under Rule
60(b) is strictly limited. The circumstances under which Rule 60(b) permits a
court to relieve a party from an otherwise final judgment or order are:
29Fed. R. Civ. P. 60(a); see, e.g., Burger King Corp. v. Horn
& Hardart Co., 893 F.2d 525,527 (2d Cir. 1990) ("final" judgment had so
many clerical mistakes it failed to dispose of all claims and all parties;
notice of appeal filed from this imperfect order was deemed premature and the
pendency of the appeal did not divest the district court of jurisdiction to
correct the judgment under Fed. R. Civ. P. 60(a)).
30See Fed. R. App. P.
12(a).
31 Fed. R. Civ. P. 60(a); see In re Craddock, 149 F.3d 1249,
1253-1254(10th Cir. 1998) (if record below is unclear, court of appeals may
remand Fed. K Civ. P. 60(a) motion to district court for determination of
whether judgment contains clerical error, which is correctable at any time
under Fed. R. Civ. P. 60(a), or mistake, which is correctable under Fed. R.
Civ. P. 60(b)(l) only within one year of entry of judgment).
32 Fed. R.
Civ. P. 60(a) ("Clerical mistakes ... may he corrected by the court at any time
of its own initiative").
33 Chavez v. Balesh, 704 F.2d 774, 776(5th Cir.
1983) ("we reject Balesh's argument that he was entitled to notice before the
court entered the correction").
34 Fed. R. Civ. P. 60(a). 35 Sec Fed. K
Civ. P. 5(a), (b); see also Fed. R. Civ. P. 6(d) (although often supplanted by
local rules and orders, Fed. R. Civ. P. 6(d) sets minimum amount of notice that
must be given on any motion).
26-11 Rule 60(b) start
here. Scanning corrections made
· Mistake, inadvertence, surprise, or
excusable neglect; 36
· Newly discovered evidence that, even
exercising due diligence, the moving party could not have discovered in time to
move for a new trial; 37
· Fraud (regardless of whether, under earlier
procedures, the fraud would be classified as "intrinsic" or "extrinsic"),
misrepresentation, or other misconduct of an adverse party; 38
· Voidness of the judgment; 39
· Satisfaction, release, or discharge of the
judgment, when a prior judgment that is the basis for the current judgment is
reversed or otherwise vacated, or when it is no longer equitable that the
judgment should continue to have prospective application; 40
· Any other reason that justifies relief from the
judgment; 41 Relief under Rule 60(b) coexists with
some pre-Rule procedures; other preRule procedures have been explicitly
abolished. Rule 60(b) permits litigants to obtain relief from a judgment or
order on the pounds listed above by means of a duly noticed motion 42. The
express purpose of the rule was to take all of the various pounds and
procedures available before the rules were adopted and to substitute either a
simple motions procedure or an independent action. 43 However, the rule also
permits the parties to obtain relief by some of the procedural means that
predate the existence of the rule:
· Independent actions in equity. Rule
60(b) expressly preserves the rights that existed before the enactment of the
rules to bring an independent action in equity to set a judgment aside. 44
However, the historical remedy of an independent action is extremely limited,
and a federal court will agree to set aside the judgment of another court only
with great reluctance.45 Independent actions in equity are most important in
those situations in which relief under Rule 60(b) is barred by the one-year
limit applicable to motions brought on grounds of excusable neglect, newly
discoveiy evidence, and fraud or misconduct.
36 Fed.
R. Civ. P. 60(b)(l).
37 Fed. R. Civ. P. 60(b)(2).
38 Fed. ft. Civ. P.
60(b)(3).
39 Fed. R. Civ. P. 60(b)(4).
40 Fed. R. Civ. P. 60(b)(5).
41 Fed. R. Civ. P. 60(b)(6).
42 Fed. ft. Civ. P. 60(b).
43 Fed. R.
Civ. P. 60(b), advisory committee note of 1946.
44 Fed. ft. Civ. P. 60(b).
45 Treadaway v. Academy of Motion Picture Arts & Sciences, 783 F.2d
1418, 1420-1422 (9th Cir. 1986). 46 See Fed. ft. Civ. P. 60(b)(1)-(3).
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· Statutoriy procedures for relief from certain
types of judgments. Rule 60(b) expressly preserves whatever statutory
procedures exist for relief from certain types of judgments.4' · Fraud
on the court. Rule 60(b) states that it has no effect on a court's inherent
power to set aside judgments on the grounds of "fraud on the court," but most
claims of fraud do not fit into this categoryAm
· Fraud on the court must involve more than injury
to a single litigant; it is limited to frauds that "seriously" affect the
integrity of the normal process of adjudication,63 or attempt to "defile the
court itself," US such as frauds of the scope of bribery of a judge S' or jury
tampering.53 Perjury by a party or witness is not fraud on the court.63 Perjury
is a fraud on the court only when it involves, or is suborned by, an officer of
the court.63 On the other hand, Rule 60(b) explicitly
eliminates other pre-Rule remedies, such s writs of comm nobis, comm vobis,
audita querela, and bills of review and 'ills in the nature of bills of review.
Only Rule 60(b) - approved procedures may be used to seek
relief from judgment or order. The most important consequence of the
provisions of Rules 60(b) that reserve some and eliminate other pre-Rule
remedies 56 is that courts have consistently ruled that any procedures other
than those specifically approved by Rule 60(b) are not acceptable means for
seeking relief from a judgment or order. For example, filing of a new or
amended complaint has been ruled an improper aethod of seeking relief from a
judgments? Of course, Rule 60(b) overlaps with
47 Fed. R. Civ.
p. 60(b); see, e.g., 28 U.S.C. 1655 (special procedure to set aside judgment
isetion to enforce lien or clear title to property which defendant not
personally served); 50 i.S.C. App. § 502(4) (default judgments against
lose in military may be set aside by special rocedure when military service
prevented de~nse to action).
48 See Broyhill Fumiture v. Craftmaster
Furiture, 12 F.3d 1080, 1085 (Fed. Cu. 1993).
49 See, e.g., Hazel-Atlas
Glass Co. v. Hart-mi-Empire Co., 322 U.S. 238, 246,64 S. CL 97, 88 L. Ed. 1250
(1944) (fraud on court "is wrong against the institutions set up to protect ud
safeguard the public, institutions in which mad cannot complacently be
tolerated consismtly with the good order of society").
50 See, e.g., Great
Coastal Express, Inc. Interational Brotherhood of Teamsters, 675 F.2d 349, 1356
(4th Cir. 1982).
51 Root Refining Co. v. Universal Oil Products Co., 169
F.2d 514,517,541 (3d Cir. 1948).
52 Platt v.Threadgill, 80F.
192,193-195(4th Cir. 1897) (in case involving quality and value of destroyed
cigars, one party inadvertently extended invitation for free cigars to three
members of jury).
53 Lockwood v. Bowles, 46 F.R.D. 625,632- 634 (D.D.C.
1969) ("we believe the beuer view is that where the court or its officers are
not involved, there is no fraud on the court within the meaning of Rule
60(b)").
54 See Porcelli v. Joseph Schlitz Brewing Co. 78 F.R.D. 499,501
(RD. Wise. 1978).
55 Fed. R. Civ. P. 60(b).
56 See Fed. R. Civ. P.
60(b).
57 Engleson v. Burlington Northern RR, 972 P.2d 1038,1043-1044(9th
Cir. 1992) ("district court abused its discretion in treating the second
complaint as a Rule 60(b) motion").
26-13
other federal rules to a
certain extent. For example, both Rule 59 and Rule 60( permit relief if there
is newly discovered evidence. Rule 59(a) permits a n trial motion if filed
within 10 days after the entry of the judgment. 58 Rule 60(b2) permits a motion
to have the judgment set aside on the basis of new discovered evidence if the
motion is made within a reasonable time, not more that one year after the entry
of the judgment US So there may be some question as to which rule is the more
appropriate in a particular situation, and one motion may be appropriate within
the 10-day period and another motion appropriate af the 10-day period expires.
However, the Advisory Committee has noted that this sort of procedural choice
corresponds to the same pre-Rule choice that exist between common-law motions
for new trials and proceedings on a bill review. 60
Decision on whether to set aside judgment is
discretionary. Rule 60(b) provides only that a court may relieve a party
from a final judgment. 61 The cases interpreting the rule have consistently
held that, except when it is a motion urder Rule 60(b)(4) for relief from a
judgment that is totally void, a party has no right to relief. The
decision as to whether relief should be granted is committed the sound
discretion of the court. 62 The court's discretion extends to all aspects of
the decision, including whether the motion was brought within a "reasonal time"
as is required by Rule 60(b). Whether the moving party acted promp or was
dilatory in bringing the motion is a factor that the court is free to weigh in
exercising its discretion. 63 The fact that the court has broad discretion
determining a Rule 60(b) motion does not mean that there are no limits on the
court's actions when confronted with a Rule 60(b) motion. "The discretion not
an arbitrary one to be capriciously exercised, but a sound legal discreti
guided by accepted legal principles." 63 The "accepted legal principles" that
govern the exercise of discretion include:
· The principle that finality of judgments
is of great importance and the final judgments should not be disturbed lightly.
65
58 See Fed. R. Civ. P. 39(a), (b).
59
See Fed. ft. Civ. P. 60(b).
60 See Fed. ft. Civ. P. 60(b), advisory
cornmittee note of 1946.
61 R. Civ. P. 60(b).
62 See, e.g., Teamsters
Local No. 59 v. Superline Transportation Co., 953 F.2d 17, 19(1st Cir. 1992)
('Motions brought under Civil ftule 60(b) are committed to the district court's
discretion and denials thereof are reviewed only for abuse of discretion").
63 Amencan Metals Service Export Co. Abrens Aircraft, Inc., 666 F.2d 718,
720-' (1st Cir. 1981) ("we see no abuse of discretion in the court's weighing
heavily against defendant its five-month delay in seeking relief particularly
since the judgment had been satisfied in the interim").
64 See. e.g.,
Assinan v. Fleming, 159 F.2d I 336 (8th Cir. 1947).
65 See. e.g..
Paddington Partners v. Bouchi 34 F.3d 1132, 1144 (2d Cir. 1994)
26-14
· Rule 60(b) is not a substitute for a timely
appeal. Courts should not grant relief when the moving party has not been
diligent in protecting its own rights by filing an appeal from an adverse
judgment." 66
· The law favors giving parties a hearing on the
merits of claims, so that a court may be more favorably inclined to grant a
motion in a case in which the moving party has inadvertently defaulted than in
cases already determined on their merits. 67 Provided that a party seeks relief
from a default judgment in a timely manner and has a meritorious claim or
defense, a court should resolve all doubts in favor of granting relief so that
the matter may be determined on its merits. A trial court's abuse of discretion
in refusing relief does not have to be glaring in order to justify a reversal
by an appellate court in the case of a default judgment. 68 Nevertheless,
deliberate misconduct will be a ground for denying relief from a default
judgment." Similarly, a conscious decision to default, even if made in good
faith, precludes relief from a default judgment under Rule 60(b)(l). 70
· The law disfavors meritless litigation, so that,
even in the case of a default judgment, a court may properly insist that the
moving party establish a meritorious claim or defense in order to secure
relief." 71
· Relief from a judgment may be inappropriate if
parties have relied on it or if circumstances are such that setting it aside
would cause prejudice to a party, e.g., evidence will be lost, destroyed, or
will be more difficult to obtain, or costs will increase to an unfair degree,
or something similar." Many claims of prejudice may be eliminated by imposing
66 See, e.g., Allstate v. Michigan
Carpenters' Icaith and Welfare Fund, 760 F. Supp. 665,669 W.D. Mich. 1991)
(when precedent on which sdgment was based is subsequemly overumed another
case, this does not justify relief, ecause moving party could have appealed and
ought reversal of precedent on its own).
67 See. e.g., Feliciano v. Reliant Tool Co., td., 691 F.2d
653, 656 (3d Cir. 1982)
68 Davis v. Musler 713 R2d 907, 912-913, 16 (2d Cir. 1983)
("This court has never esitated to reverse the denial of a motion to acate a
default judgment where further factoding was necessary to ensure that
substantial atice was served").
69 See, e.g.. Wells v. Rockefeller, 728 F.2d 39, 213-214 (3d
dr. 1984)) (court noted that defendant's plight resulted from "considered
decision to allow the entry of the default judgment").
70 Gucci Am., Inc. v. Gold Ctr. Jewelry, 158 F.3d 631,
634-635 (2d Cir. 1998) ("willful" does not mean in bad faith, and it is
sufficient that defendant defaulted deliberately, although determination that
defendant acted in bad faith would certainly support finding of "willfulness").
71 See, e.g., Pease v. Pakhoed Corp., 980 F.2d 995, 998 (5th
Cir. 1993)
72 See Amernational Industries v. ActionTungatram, 925 F.2d
970, 977 (6th Cir. 1991) ("our first inquiry ... concerns whether the plaintiff
will he prejudiced if the judgment is vacated").
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appropriate conditions (i.e., special scheduling,
posting of bonds for extra costs incurred, etc.) on granting relief. 73
· The relief provided by Rule 60(b) is equitable in nature and,
in exercising its discretion under Rule 60(b), a court may always consider
whether the moving party has acted equitably. 74
There is no absolute bar to granting relief from
consensual judgments. Consensual judgments may be set aside under Rule
60(b), and the United States Supreme Court has expressly stated that courts
should review consent decrees, even consent decrees in institutional reform
litigation, under the standards prescribed by Rule 60(b). Courts should apply
those standards on a "flexible," practical basis, and should never apply some
special standard requiring a showing greater than that required by the rule
itseltf. 75
Rule 60(b) applies to final judgments or orders only.
Rule 60(b) permits relief "from a final judgment, order, or proceeding"
(emphasis added)." Although all courts readily agree that a "final" judgment is
needed to support a Rule 60(b) motion, 77 courts have struggled with what type
of judgments are and are not "final" in this context. For example, a judgment
that stated that interest was to be awarded, but did not specify how much, or
whether it was prejudgment as well as post-judgment interest, was too ambiguous
to be a final judgment. 78 The standard test for whether a judgment is "final"
for Rule 60(b) purposes is usually stated to be whether the judgment is
sufficiently "final" to be appealed. 79 There are, however, some situations
under which "appealability" and "finality" for Rule 60(b) purposes are not
exactly identical. For example, consent judgments and judgments resulting from
a Rule 68 "offer of judgment" may finally resolve all issues in a litigation
bat may not be appealable judgments. Nonetheless, despite their lack of
appealability, a consent judgment is sufficiently final to support a
73 See, e.g., Ten v. Svenska Orient Unen, 573 F.2d 772, 774-775
(2d dr. 1978) (it was abuse of discretion to deny relief when plaintiff offered
to be available for deposition as soon as he was out of hospital, offered to
pay defendant expenses for defendant bringing witness from Saudi Arabia, and
conditions could be imposed requiring plaintiff to pay defendant's expenses in
deposing plaintiff in Puerto Rico).
74See, e.g., Whitaker v. Associated
Credit Services, Inc., 946 F.2d 1222, 1224 (6th Cir. 1991) ("under Rule 60(b)'
this court may consider applicable principles of equity").
75 See Rufo
v. Inmates of Suffolk Jail, 502 U.s. 367, 378-383, 112 S. Ct. 748, 116 L. Ed.
2d 867 (1992) (courts may grant modification of consent decree concerning jail
conditions under Fed. R. Civ. P. 60(b)(5) without requiring moving party to
meet abstract, inflexible atandard of showing that continued application of
unmodified decree would result in "grievous wrong").
76 Fed. R. Civ. P.
60(b).
77 See, e.g.. United States v. Bans, 834 F.2d 1114,1118(1st Cir.
1987);McMillanv.MBank Fort Worth, N.A., 4 F.3d 362, 366 (5th Cir. 1993)
78
Student Loan Marketing Association v. Lip. man, 45 F.3d 173, 175-177 (7th Cit.
1995).
79 See, e.g.. United States v. Baus, 834 F.2d 1114, 1119 (1st
Cit. 1987).
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Rule 60(b) motion 80 as
is a judgment resulting from a Rule 68 offer of judgment.81 Rule 60(b) does not
govern relief from interlocutory orders, that is to say any orders with regard
to which there is something left for the court to decide after issuing the
order. For example, Rule 60(b) may not be used to have a court grant relief
from a conditional order dismissing the litigation. Rule 60 may only be used to
obtain relief from a final order, such as an order refusing to reinstate
because the parties did not satisfy the conditions of the earlier order. 82
Showing of meritorious claim or defense is prerequisite
to relief. A precondition of relief from a judgment is that the movant show
that he or she has a meritorious claim or defense. The moving party must
convince the court "that vacating the judgment will not be an empty exercise."
83 The requirement that a party moving for relief from a judgment under Rule
60(b) must show a "meritorious" claim or defense does not mean that the moving
party must show that he or she is likely to prevail. 84 has also been stated
that allegations attempting to state a claim or defense in this context are
"meritorious if they contain 'even a hint of a suggestion' which, if proven at
trial, would constitute a (valid claim or a] complete defense." 85 On the other
hand, mere conclusionary statements that a claim or a defense is meritorious
will not suffice. The moving party must state enough facts to give a court an
opportunity to measure whether the claim or defense has any potential, whether
the claim or defense is one that is recognized by law. 86 The only exception to
meritorious defense prerequisite to relief is the exception that applies to
almost every requirement governing relief under Rule 60-void judgments. A
meritorious defense does not have to be shown to set aside a completely void
judgment. 87
Relief from judgment or order may be predicated on showing
of mistake, inadvenence, surprise, or excusable neglect. Although "mistake,
inadvertence, surprise, or excusable neglect" are recognized as grounds for
relief from a final judgment by Rule 60(b)(l), the rule is completely silent on
what these terms
80 See, e.g., United States v. Baus, 834 F.2d 1114, 1118-1119
(1st Cir. 1987).
81 See Mallory v. Eyrich, 922 F.2d 1273, 1276-1279 (6th Cit.
1991).
82 See, e.g., Adams v. Lever Bros. Co., 874 F.2d 393, 394(7th
Cir. 1989) (order dismissing case but giving parties 90 days to reinstate was
not final order, although subsequent order denying plaintiffs motion to
reinstate action was final order).
83 See, e.g., Local 59 v. Superline Tramp. Co., 953 F.2d 17,
20 (1st Cit. 1992). 953 F.2d 17,21(1st Cit. 1992) ("while a movant need not
establish that it possesses an ironclad claim or defense which will guarantee
success at trial, it must establish a potentially meritorious claim or defense
which, if proven, will bring success").
84 THERE IS NO 84. Moore and Bender screwed up.
We all
make mistakes. It's better to correct a mistake, the move on. Settle.
85 Keegel v. Key West & Caribbean Trading Co., Inc., 627
F.2d 372, 374 (D.C. Cit. 1980).
86 See, e.g., United States v.
$55,518.05 in U.S. Currency, 728 F.2d 192, 195-197 (3d Cit. 1984).
87 See e.g. Kalb v/ Fuererstein 308 US 433
26-17
mean. 88 However, the Supreme Court has provided guidance as
to the meaning of the term "excusable neglect." As used in Rule 60(b)(l), the
word "neglect" encompasses negligence and carelessness. 89 Whether a particular
instance of neglect is "excusable" is an equitable determination. In making the
determination a court must take account of all relevant circumstances,
including (1) the danger of prejudice to the adverse party; (2) the length of
any delay caused by the neglect and its effect on the proceedings; (3) the
reason for the neglect, including whether it was within the reasonable control
of the moving party; and (4) whether moving party acted in good faith. 90 The
negligence or carelessness of an attorney is attributable to a party' but the
attorney's conduct is not per se inexcusable it may constitute excusable
neglect. 91 The determination is fact based, an made on a case-by-case basis.
For example, although ignorance of proced rules is not per se inexcusable, in
most cases such ignorance will be found factually inexcusable under the
three-part test just described. 92 On the other hand, examples of cases in
which the courts held that the facts warranted granting relief from judgment
based on "mistake, inadvertence, surprise, or excusable neglect" include the
following:
· The record showed that one of the parties
proceeded to trial under understandable but mistaken assumption concerning the
issues to tried"
· Settlement was made by an attorney who lacked
authority." 94 Note, however, that most courts that have considered relief from
a consent judgment on the ground that counsel lacked anthority to settle a case
have considered that the motion was governed by the "catch-all" clause of Rule
60(b)(6), rather than the clause permitting relief for mistake or excusable
neglect.
88 See Fed. R. Civ. P. 60(b)(1).
89 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507
U.S. 380, 388. 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993) (word carries its
ordinary, contemporary, common meaning).
90 Pioneer mv. Servs. Co., 507
U.S. at 395.
91 Pioneer Inv. Servs. Co., 507 US. at 396-398 (1993).
92 Canfleld v. Van Alta Buick/GMC Truck, Inc., 127 P.3d 248, 251 (2d
Cir. 1997) (if procedural nule "is entirely clear, we continue to expect that a
party claiming excusable neglect will, in the ordinary course, lose under the
Pioneer test").
93 In re Salem Mortgage Co., 791 F.2d 459-460 (6th Cir.
1986) ("we do not end a liberal application of Rule 60(b) where o set has
failed to carefully review pleading motions or other documents filed with the
court. The distinguishing factor in this instant ca, that the court had before
it. . . [claims, brief. . . which obviously contradicted issues set forth in
the Stipulation").
94 Surety Ins, Co. of Calif. v. Williams, F.2d 581,
582-583 (8th Cir. 1984) (defend carry a heavy burden to establish that attorney
acted without any kind of authority").
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· An ambiguous local rule misled a party as
to the time required to act in order to secure trial on the merits. 95
· Failure to appear at trial may be excused when
the court created confusion in the process of setting a trial date.
96
· A misunderstanding over the terms of an agreed
extension to plead may constitute mistake or excusable neglect. 97
· The inability of a party to hire counsel or
otherwise to commumcate with the court may be excusable neglect. 98
· Procedural errors made by lay parties that
attempt to represent themselves and who are given confusing instructions may
justify relief from the consequences of understandable error.
99
On the other hand, examples of eases in which the courts
held that the facts did not warrant granting relief from judgment based on
"mistake, inadvertence, surprise, or excusable neglect" include the following:
· Cases involving deliberate or willful conduct.
Deliberate or willful conduct on the part of the person seeking relief from the
judgment precludes, by its very nature, a finding of "mistake" or
"inadvertence" or "surprise" or "excusable neglect." 100
· Cases involving inadvertent conduct that
demonstrates a lack of diligence on the part of the movant. Courts repeatedly
deny relief when they find that the facts and circumstances demonstrate a lack
of diligence in pursuing or defending litigation. 101
95 Lenagban v. Pepsico. Inc., 961 F.2d 1250, 1254-1255 (6th Cir.
1992).
96 Ellingsworth v. Chrysler, 665 F.2d 180,184 (7th Cir. 1981)
("Our review of the colloquy at issue. . . reveals that there was indeed some
confusion concerning when the tiial would be set").
97 United Coin
Meter v. Seaboard Coastline R.R., 705 F.2d 839, 845-846 (6th Cir. 1983) ("The
record does not support a finding that the default occurred as the result of
willful conduct").
98 United States v. $48,595, 705 F.2d 909, 912-913
(7th Cir. 1983) ("The combination of circumstances presented in this case. . .
support[s] the conclusion ... the claimant's] default in the forfeiture
proceeding was the result of excusable neglect"). 1156,1160-1161 (6thCir. 1980)
("The factthat a defendant was misled by certain procedural requirements ...
has been a proper consideration by courts in determining whether to grant
relief under 60(b)").
100 See, e.g., Williams v. New Orleans Public
Service, Inc., 728 F.2d 730. 734 (5th Cir. 1984) ("We cannot agree that the
repeated instances of deliberate indifference and disregard of the Court's
orders and requests displayed here were the product of 'oversight' or
inadvertence.' ").
101 See, e.g., Greenwood Explorations v. Merit Gas
& Oil Corp., 837 F.2d 423,426-427 (10th Cir. 1988) (defendants failed to
cooperate and communicate with their second attorney, ignored discovery
deadlines, and expressed interest in case only after suffering $11 million
?????
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· Cases in which the movant was ignorant of
the law or rules of procedure. In the context of Rule 60(b)(1) motions,
ignorance of the law usually is not excusable neglect. 102 However, a failure
to comply with a procedural rule might be excusable if the rule is not entirely
clear, i.e., it is ambiguous or susceptible to multiple interpretations, or if
the applicable rule conflicts with another rule. 103
The circuit courts are split concerning whether courts may reconsider,
pursuant to Rule 60(b)(l), legal errors they may have made in a judgment. 104
Relief from judgment or order may be predicated on showing of newly
discovered evidence. All courts allow relief from a judgment or order on
the basis of newly discovered evidence,1 but have stated the qualifications for
establishing "newly discovered" evidence in a number of different ways. Thus,
for example, the Ninth Circuit has stated that to obtain relief, the moving
party must show: (1) that the evidence existed at the time of trial, (2) that
it could not have been discovered in time for a new trial motion despite due
diligence, and (3) that the evidence is sufficiently significant that it is
likely to change the outcome of the case.104 The Seventh Circuit has
established a more elaborate test, requiring all of the following elements to
be proven to obtain relief: iar
1. The newly discovered evidence must have
existed at time of trial or must concern facts that were in existence at the
time of trial. Regardless of the formulation used by a court, all courts agree
that the only evidence that qualifies as "newly discovered" evideace within the
102 See. e.g. Engleson v. Burlinpon North-RI, 972 R2d
1038, 1043 (9th Cir. 1992) (citing numerous cases and ruling that dismissal
resulting from citing wrong jurisdictional statute in complaint could not be
corrected under Fed. I. Civ. P. 60(b), but only by moving to amend complaint,
seeking reconsideration of dismissal, or appealing dismissal).
103 See
Canfield v. Van Attn BuickJGMC Truck, Inc., 127 F2d 248, 250-251 (2d Cu. 1997)
(failure to comply with filing deadline imposed by local rule was not excusable
where rule was unambiguous and attorney bad been informed by opposing counsel
of local rule's requirements).
104 See, e.g.. Liberty Mut. Ins. Co. v.
E.E.O.C., 691 F.2d 438, 441 (9th Cir. 1982) (although circuits are split about
whether district courts may correct errors of law by motions under Fed. R. Civ.
P. 60(b)(l), district courts in Ninth Circuit may do so); cf Silk v. Sandoval,
435 F2d 1266. 1267-1268 (1st Cir. 1971) ("If a court merely wrongly decided a
point of law, that is not "inadvertence, surprise, or excusable ~~~... A
contrary view, that "mistake" mesna any type of judicial error, makes relief
under the rule for error of law as extensive as that available under Rule
59(e). Indeed, the argument advanced is that a broad construction of "mistake"
beneficially extends the 10-day limit for motions under Rule 59(e). Calling
this a benefit loses sight of the complementary interest in speedy disposition
and finality, clearly intended by Rule 59").
105 R. Civ. p. 60(b).
106 Jones v. AeroChem Corp. 921 F.2d 875, 878 (9th Cir. 1990).
107 United States v. McOaughey, 977 P.2d 1067. 1075 (7th Cir. 1992)
(proof of all elements is required, and none may be excused even if newly
discovered evidence is "dynamite" or "conclusive").
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meaning of the Rule 60(b)(2) is evidence of facts
that were in existence at the time of the original trial or that relate
directly to the facts that were tried. 108 The crucial question is not when the
evidence was created, but whether the evidence was of facts that were in
existence at the time of trial. 109
2. The newly discovered evidence must have been discovered
following the trial. Newly discovered evidence refers only to evidence that was
not "discovered" by the moving party in time to move for a new trial. 110 The
moving party must thus demonstrate how and when he or she "discovered" the
evidence. In other words: In order for evidence to be newly discovered, the
party must have been unaware of the existence of the evidence before or during
the trial. 111 When a party has anything that could legally be called
possession of evidence during a trial, the party does not "discover" that
evidence at a later time. 112 Similarly, evidence available from public
records"' and evidence in the hands of a party's employees 114 will never be
"newly discovered" after trial.
3. The moving party must have shown due diligence to
discover the evidence. The "due diligence" requirement of Rule 60(b)(2) 115
refers not to what the litigant actunily discovered, but what he or she could
have discovered. 116 Moreover, the moving party may not simply claim that he or
she has been diligent in obtaining evidence, but must present facts that show
why he or she was unable to present the evidence that
108 e.g., Rivera v. WF Fossarina, 840 F.2d 152,
155 (1st Cir. 1988) (evidence concerning results of investigation that took
place after trial was not newly discovered evidence, since results did not
exist at time of trial).
109 See, e.g., National And-Hunger Coalition
v. Executive Committee of the President's Nivate Sector Survey on Cost Control,
711 F.2d 1071, 1075 n.3 (D.C. Cir. 1983) (post-trial reports might be highly
relevant to facts considered at trial).
110 See Fed. R. Civ. P.
60(b)(2).
111 See. e.&, Parilla-Lopez v. United States, 841 F.2d
16, 19 (1st Cir. 1988) (party knew of witness, police officer, who had relevant
information, but thought that it was not worth time and expense to track
witness down until receiving unfavorable result at trial).
112 Coastal
Transfer Co. v. Toyota Motor Sales, USA, 833 F.2d 208,211(9th Cir. 1987)
("Evidence is not 'newly discovered' under the Federal Rules if it was in the
moving party's possession at time of trial").
113 Scutieri
v.Paige,808F.2d785,794 (11th Cir. 1987).
114 Taylor v. Texgas Corp.,
831 F.2d 255,259 (11th Cir. 1987) (in age discrimination case, defendants'
employees knew that plaintiff was already receiving pension benefits even if
trial counsel did not).
115 See Fed. R. Civ. P. 60(b)(2) (rule expressly
requires evidence that "by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b)").
116 See, e.g.. Aliff v. Joy
Mfg. Co., 914F.2d 39,44(4th Cir. 1990) (test results of contaminadon findings
could have been found if proponent had hired consultant and ordered tests
before trial).
26-21
provides the basis for the motion either in time for
use at trial or in time for filing a motion for new trial. 117
4. The newly discovered evidence must be admissible.
5. The newly discovered evidence must be credible.
6. The newly discovered evidence must be material to the
issues tried.
7. The newly discovered evidence must not be merely
cumulative or impeachment evidence.
8. The newly discovered evidence must be so significant
that it is likely to change the outcome of the case. To succeed on a motion
based on newly discovered evidence, the movant must show that the evidence was
"of such magnitude that the production of it earlier would have been likely to
change the disposition of the case." 118 If the
evidence is discovered and a motion filed within 10 days after entry of
judgment, a court may grant a new trial. 119 If the evidence is discovered too
late to file a motion for new trial within that 10-day period, but a motion is
brought within a reasonable time and no later than one year from the entry of
judgment, the judgment may be set aside on the ground that there is newly
discovered evidence.120 However, since due diligence in discovering the
evidence and bringing the motion is an essential element of both motions, a
party does not have the option to simply let the 10-day period for bringing a
new trial motion expire and bring a motion under Rule 60(b) at the party's
comparative leisure. The language of Rule 60(b)(2) pennits relief from judgment
only if the evidence "could not have been discovered in time to move for a new
trial under Rule 59(b)." 121
Relief from judgment or order may be predicated on
showing of fraud, misrepresentation, or misconduct of an adverse party. A
court has discretion to grant a motion to relieve a party from a final
judgment, order, or proceeding on the grounds of fraud, misrepresentation, or
other misconduct of an adverse party. 122 The moving party has the burden of
proving fraud or misrepresentation by clear and convincing evidence. 123 Both
intentional and unintentional
117 See, e.g., United States v.
Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d dr. 1983) ("Given the feebleness
of Bernie's proffer of 'due diligence,' . . . it was well within the district
court's discretion to reject the explanadons").
118 Coastal Transfer
Co. v. Toyota Motor Sales, USA., 833 F.2d 208, 21 1-212 (9th Cir. 1987) (denial
of motion proper because "the [newly discovered] expert testimony, even if
produced in a timely fashion, would not have propelled . . . [movant] over the
hurdle of summary judgment").
119 See Fed. R. Civ. P. 59(a), (b).
120 See Fed. R. Civ. P. 60(b)(2).
121 Fed. R. Civ. P. 60(b)(2).
122 Fed. R. Civ. P. 60(b)(3). I23 Simons v. Gorsuch, 715 F.2d 1248,
1253 (7th dir. 1983).
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misrepresentations and
failures to disclose are a sufficient basis for relief. 124 Furthermore, Rule
60(b)(3) expressly rejects the old, equitable distinction between "extrinsic"
and "intrinsic" fraud. Under the rule, a party may be relieved from a judgment
on the basis of fraud, regardless of whether the fraud could be classified as
"intrinsic" (fraud that involves matters actually presented and considered in
the trial) or "extrinsic" (fraud that does not involve what was actually tried
but nevertheless prevented a party from obtaining a fair trial).125 Therefore,
judgments may be set aside for a wide variety of alleged frauds, including, for
example, an allegation that an adverse party failed properly to respond to a
discovery request,126 or an allegation that false documents were presented. 127
The controlling test is whether the alleged fraud prevented the moving party
from fully and fairly presenting his or her case at trial. 128 There is no
relief for the lazy litigant who did not adequately investigate his or her
case, or who did not vigorously cross-examine a witness. Therefore, when a
claim of perjury at trial, or introduction of forged documents into evidence,
is raised under Rule 60(b)(3), rejlief is granted only when it is also shown
that the fraud at trial somehow prevented the innocent party from fully and
fairly presenting his or her case. 129 Relief has been denied in cases in which
the moving party had ample opportunity to uncover the alleged fraud or perjury
at trial through cross-examination. 130 The only matter unsettled is the extent
to which fraud or misrepresentation by persons other than the party himself or
herself qualifies as the fraud or misrepresentation of "an adverse party" as
required by the rule."' While the fraud of an adverse party's attorney is
surely chargeable to the adverse party, l32 the cases are inconclusive
concerning whether a party is responsible for fraud or misrepresentation by a
witness who testifies on the party's behalf, especially expert witnesses. 133
124 See, e.g., Lonsdorf v. Seefeldt, 47 F.3d 893, 895 (7th
Cir. 1995).
125 FCd. R. Civ. P. 60(b)(3).
126 See, e.g., Anderson v. Cryovac, Inc., 862 F.2d 910, 923,
930 (1st Cir. 1988).
127 Londorf V. Seefeldt, 47 F.3d 893. 897- 898(7th Cir. 1995)
(relief granted when defense in employment discrimination action was based on
falsified training schedule).
128 See, e.g., Anderson v. Cryovac, Inc., 862 F.2d 910, 923,
926 (1st Cir. 1988) (moving party must show that "nondisclosure worked some
substantial interference with the full and fair presentation of the case").
129 Diaz v. Methodist Hosp., 46 F.3d 492,497 (5th Cir. 1995).
130 See, e.g., RF. Hutton & Co. v. Berns, 757 F.2d 215,
217 (8th Cir. 1985).
131 Fed. R. Civ. P. 60(b)(3).
132 Metlyn Realty Corp. v.
Esmark, Inc., 763 F.2d 826. 833 (7th Cir. 1985).
133 See. e.g., Harre v. A.H. Robins Co., 750 F.2d 1501, 1505
(11th Cir. 1985), modified at 868 F.2d 1303, 1304 (11th Cir. 1989) ("in view of
the fact that Dr. Keith had acted as a consultant/expert for Robins[']
attorneys since 1977, it becomes obvious that Robins' counsel must have been
aware that Dr. Keith's testimony in Dembrowsky contradicted his testimony in
the trial of this action"); cf Richardson v. Nat'1 R.R. Passenger Corp., 49
F.3d 760,765 & n.10 (D.C. Cu. 1995) (court refused, as matter of general
principle, to universally "extend" reach of Fed. R. Civ. P. 60(b)(3) to expert
testimony presented by party).
26-23
Relief from judgment may be predicated on showing that the
judgment is void. Rule 60(b)(4) provides a method under which a court may set
aside a "void" judgment. 134 A judgment is void only if it is totally beyond a
court's power to render. 135 Courts have frequently held that a judgment
rendered by a court that was without jurisdiction over the subject matter is
void. 136 In the context of a Rule 60(b)(4) motion for relief from the
judgment, a lack of subject-matter jurisdiction means a court's lack of
jurisdiction over an entire category of cases, not whether a court makes a
proper or improper determination of subject-matter jurisdiction in a particular
case. 137 A judgment may also be void because the court lacked power to
exercise personal jurisdiction over the defendant. In other words, a judgment
may be void if the defendant lacked sufficient contacts with the geographical
area in which the court sat so that it was a denial of due process for the
court to attempt to exercise personal jurisdiction over the defendant. 138
Similarly, if a court's power over an individual is based on a state "long arm"
statute, a judgment may be void when the court lacks personal jurisdiction
because the requirements of that long-arm statute have not been met. 139
Finally, a judgment may be void because, although the court had the theoretical
power to exercise personal jurisdiction over a defendant, the defendant was not
adequately served with process. 140 A distinction must be drawn between
judgments that are void for lack of subject-matter jurisdiction and those that
may be void for lack of personal jurisdiction. Parties may not confer
subject-matter jurisdiction on a federal court, but a party may waive lack of
personal jurisdiction by voluntarily submitting to the court's jurisdiction.
Therefore, on a Rule 60(b)(4) motion based on a lack of personal jurisdiction,
the moving party must show not only a lack of personal jurisdiction, but also
that he or she did not waive the lack of jurisdiction and voluntarily submit to
the court's jurisdiction. 141 An alternate, and more generic test for whether a
judgment if void in the context of a Rule 60(b)(4) motion for relief is whether
"the judgment was entered in
134 FAd. R. Civ. P. 60(b)(4).
135 See, e.g., Kaib v. Feucratein, 308 U.S. 433, 435, 60 S. Ct. 343, 84
L. Ed. 370 (1939) (bankruptcy proceedings may oust state court of power to
foreclose on property, and if state court acts anyway in these circumstances,
its order is "not merely erroneous but. . . beyond its power, void, and subject
to collateral attack").
136 See, e.g., United States v. Forma, 42 F.3d
759, 762 (2d Cir. 1994); Wages v. LR.S., 915 F.2d 1230, 1234 (9th Cir. 1990).
137 See, e.g.,WiJlIiains v. Brooks, 996 F.2d 728, 729-731 (5th Cu. 1993)
(court had no juiisdiction to proceed with case while interlocutomy appeal of
immunity defense was pending).
138 See, e.g., Bully Export Corp. v.
Balicar, Ltd., 804 F.2d 398, 400, 404 (7th Cir. 1986).
139 See, e.g..
Covington Indus. v. Resintex, A.G., 629 F.2d 730, 732, 734-737 & n.4 (2d
Cir. 1980).
140 See, ag., Gold Kist, Inc. v. Laurinburg Oil Co., Inc.,
756 F.2d 14, 19 (3d Cir. 1984) ("A default judgment entered when there has been
no proper service of the complaint is, a fortiori, void, and should be set
aside").
141 See, e.g., Precision Etchings & Findings v. LOP Gem,
Ltd., 953 F.2d 21,25-26(1st Cir. 1992).
26-24
violation of due
process. 142 Thus, any judicial conduct that denies the movant a meaningful
opportunity to participate in the litigation may render a judgment void for
lack of due process. 143
Motions for relief based on voidness of judgment are not
really subject to court's discretion. As noted above, every Rule 60(b)
motion is, at least theoretically, subject to the court's discretion. However,
if a judgment is void, the only way that the court may exercise its discretion
is by granting relief. In other words, if a court determines that a judgment is
truly void, and not simply ersoneous, the court really has no discretion at
all; it must recognize that the judgment is a nullity and grant relief. 144
Also, when a judgment is void, the moving party need not show that he or she
has a meritorious claim or defense. 145
Relief from judgment or order may be predicated on
showing of satisfaction, release, or discharge of judgment. A party may
obtain relief from a judgment on the grounds that "the judgment has been
satisfied, released, or discharged."" A motion for relief from a judgment under
this provision of Rule 60(b)(5) is fairly straightforward. h most instances,
the only question is whether the judgment from which relief is sought has,
indeed, been satisfied. For example, there are cases in which relief has been
denied because, even though the sums set forth in the judgment were paid, there
was a dispute about whether it was proper for the defendant to withhold income
taxes from the payments made on the judgment, 147 or there was a dispute about
the correct amount of taxes to be withheld from payments made on the judgment.
148
Relief from judgment or order may be predicated on
showing that a prior judgment has been reversed or vacated. A party may be
relieved from a judgment if "a prior judgment upon which it is based has been
reversed or otherwise vacated. 149 However, it has not proven easy to determine
when one judgment
142 See, e.g., Simer v. Rios, 661 F.2d
655,663 & n.18 (7th Cir. 1981) (failure to give proper notice to class
members).
143 See, e.g., Great American Trading Corp. v. I.C.P. Cocoa,
Inc., 629 F.2d 1282,1287-1288 (7th dr. 1980) ('This issue has not been
adjudicated by the district court as mandated by, and in the manner
contemplated by, the statute .... In our view, it must be so adjudicated. for
if no arbitration agreement exists the arbitration award and judgment entered
thereon is void and GATC's motion for relief from that judgment should have
been granted").
144 See, e.g.. Baily Export Co. v. Balicar, Ltd. 804
F.2d 398, 400-401 (7th Cir. 1986) ("if the district ... had no jurisdiction
over the defendants it was a per se abuse of discretion to deny the defendants'
rule 60(b)(4) motion").
145 See, e.g., Bludworth Bond Shipyard, Inc. v.
MN Carribean Wind. 841 F.2d 646,649(5th dir. 1988) (district court must set
void judgment aside, "regardless of whether the movant has a meritorious
defense").
146 Fed. R. Civ. P. 60(b)(5).
147 Redfield v.
Insurance Co. of North America, 940 F.2d 542, 549 (9th dir. 1991).
148
Tungseth v. Mutual of Omaha, 43 F.3d 406, 409 (8th dir. 1994).
149 Fed.
R. Civ. P. 60(b)(5).
26-25
is "based" on
another within the meaning of this rule. The overall standard appears to be
that one judgment is based on another when the first judgment is so related to
the second that the first judgment has claim or issue preclusion effects on the
second. 150 Rule 60(b)(5) does not provide a basis for relief when one judgment
relies on an earlier judgment merely as legal precedent, and that legal
precedent is subsequently set aside or overturned. A change in the law
following a judgment does not merit relief under Rule 60(b)(5). 15l The cases
are inconclusive over whether relief is appropriate in a multiple-party case
when one of the aggrieved parties successfully appeals but the other does not.
In general, unless there are some special equities in favor of granting relief
to the nonappealing party, the courts tend to deny claims for relief by the
party that did not appeal. 152 Furthermore, the courts are split over whether a
consent judgment may be set aside when a prior judgment that was the impetus to
settle the case is set aside. The cases involving civil forfeiture-of-assets in
connection with drug prosecutions or RICO prosecutions consistently rule that
there may be no relief under Rule 60(b)(5). la other words, if there is a
criminal conviction, and this conviction prompts a defendant to settle a
related civil forfeiture-of-assets case, the forfeiture consent decree may not
be set aside simply because the criminal conviction is later overturned. The
courts reason that a consent decree is based on an agreement of the parties,
not on the prior criminal conviction. 153 The one modem case dealing with
other, nonforfeiture types of consent decrees is not so categorically averse to
granting relief, however. 154
Relief from judgment or order may be predicated on showing
that it is not equitable that the judgment should continue to have prospective
application. There may be relief from a judgment when "it is no longer
equitable that the judgment have prospective application. 155 Obviously, relief
is available under this provision of Rule 60(b)(5) only for those judgments
that have some "prospective" application, and not all judgments do. Thus, for
example, simple money judgments may not be set aside or reopened under Rule
60(b)(5), because simple money judgments have no prospective application. 156
On the other hand,
150 See, e.g., baum v. McDaniel, 865 F.2d
209, 210-211 (9th Cir. 1989).
151 See, e.g.. Bailey v. Ryan
Stevedoring, Inc., 894 F.2d 157, 160 (5th Cir. 1990); Lubben v. Selective
Service System Local Board No. 27, 453 F.2d 645, 650 (1st Cir. 1972).
152 See. e.g., In re Fine Paper Antitrust Litig., 840 F.2d 188, 194 (3d
dr. 1988) ("the controlling legal question is whether a final money judgment
may be reopened several years after the time for appeal has expired because of
a favorable legal ruling in some other party's appeal. The answer to that
question is in the negative").
153 See. e.g., United States v. Bank of
New York, 14 F.3d 756,760 (2d Cir. 1994); Schwartz v. United States, 976 F.2d
213, 217-218 (4th Cir. 1992).
154 Evans v. City of Chicago, 10 F.3d
474, 476-477 (7th Cir. 1993)(1994) ("Rule 60(b)(5) applies to consent judgments
as well as to other judgments").
155 Pe'J. R. Civ. P. 60(b)(5).
156 In re Fine Paper Antitrust Litig., 840 F.2d 188, 195 (3d Cir.
1988).
26-26
declaratory judgments may have prospective
applications. For example, orders of disbarment and judgments that create liens
on property affect events in the future, 157 although a simple judgment
declaring the respective rights of the parties to a piece of personal property
is immediately final; the dispute over ownership rights is in the past and the
declaration resolves the controversy immediately. 158 The real application of
this basis for relief involves judgment granting injunctions that, by their
nature, are directed to controlling the future conduct of parties. Injunctions
always have prospective application. 159 However, not every type of judgment
that may result from litigation involving or seeking injunctive relief is
automatically prospective in application. A simple judgment of dismissal of
this type of litigation is not prospective in application at all. A simple
dismissal, at least one refusing to grant an injunction or one that fully and
completely dissolves an injunction,160 may not be set aside, reopened, or
modified under Rule 60(b)(5).161 However, when a judgment granting an
injunction is under consideration, the appropriate standard for reopening,
modifying, or setting aside the judgment on the ground that it "is no longer
equitable that the judgment should have prospective application" is a
"significant change in circumstances." 162
There is a catch-all provision jusufying relieffrom order
or judgment on basis of "any other reason" that is sparingly applied by
courts. A court may grant relief from a judgment, even though the case does
not fit into one of the other, more specific provisions of Rule 60(b), if there
is "any other reason justifying relief from the operation of the judgment." 163
Not surprisingly, this provision, which is set out in Rule 60(b)(6), has been
described as a "catch-all" provision. 164 The provision "vests power in courts
adequate to enable them to vacate judgments
157 See, e.g.,
DeWeerth v. Baldinger, 38 F.3d 1266, 1276 (2d Cir. 1994).
158 DeWeerth
v. Baldinger, 38 F.3d 1266, 1276 (2d dr. 1994).
159 See, e.g., Rufo v.
Inmates of Suffolk Jail, 502 U.S. 367, 380, 383, 112 S. Ct. 748, 116 L. Ed. 2d
867 (1992) ("the prospective effect of such a judgment or decree will be open
to modification where deemed equitable under Rule 60(b)").
160 See
Board of Educ. of Oklahoma City v. Dowel, 498 U.S. 237,244-245, 111 5. Ct. 630,
112 L. Ed. 2d 715 (1991).
161 See, e.g.. Dowel v. Board of Education of
Oklahoma City, 8 F.3d 1501,1509(10th dir. 1993) (decision to dissolve
desegregation decree "does not have the prospective effect that subsection of.
. . rule [60(b)(5)] requires").
162 See Rufo v. Inmates of Suffolk
Jail, 502 U.S. 367, 380. 383, 112 5. Ct. 748, 116 L. Ed. 2d 867 (1992) ("Rule
60(b)(5) provides that a party may obtain relief from a court order when "it is
no longer equitable that the judgment should have prospective application," not
when it is no longer convenient to live with the terms of a consent decree.
Accordingly, a party seeking modification of a consent decree bears the burden
of establishing that a significant change in circumstances warrants revision of
the decree").
163 Fed. R. Civ. P. 60(b)(6).
164 See. e.g..
Dowel v. State Farm Fire & Cas. Co., 993 F.2d 46, 48(4th Cir. 1993).
26-27
whenever such action is appropriate to accomplish
justice." 165 If the reasons offered for relief from judgment could be
considered under one of the more specific clauses of Rule 60(b)(1)-(5), those
reasons will not justify relief under Rule 60(b)(6). The catch-all provision
does not justify relief for a claim that fails under one of the more specific
bases for relief. 166 In particular, the grounds that are set out in Rule
60(b)(l)-(3), which require that the motion be made within one year of the
entry of the judgment, may not be the basis of a Rule 60(b)(6) motion after the
one-year period has elapsed. This one-year time limit would have no meaning if
the same type of conduct could justify a later motion under Rule 60(b)(6). 167
The "other reason justifying relief from the operation of the judgment" 168
given by the moving party must amount to "extraordinary circumstances" in order
for the court to grant relief. 169 ln a vast majority of the cases finding that
extraordinary circumstances do exist so as to justify relief, the movant is
completely without fault for his or her predicament. In other words, in order
to obtain relief, the cases imply that the movant must show that he or she was
almost unable to have taken any steps that would have resulted in preventing
the judgment from which relief is sought." 170 A number of courts have
permitted relief from a judgment entered pursuant to a settlement agreement
when, subsequent to the judgment, one of the parties fails to perform according
to the terms of the settlement agreement. 171 Relief is not always mandated
merely because one party breaches the terms of the settlement agreement,
however. If adequate relief is available through a separate lawsuit for breach
of the settlement agreement, the court may leave the parties to that remedy and
refuse to set the judgment aside. 172 Finally, there are a number of cases that
permit relief from a judgment under Rule 60(b)(6) when the judgment was
rendered because an
165 Klapprott v. United States, 335 U.S. 601,
615, 69 S. Ct. 384, 93 L. Ed. 266 (1949).
166 Liljeberg v. Health
Serve. Corp., 486 U.S. 847, 863 & n.h, 108 S. Ct. 2194, 100 L. Ed. 2d 855
(1988) ("Rule 60(b)(6) . . . grants federal courts broad authority to relieve a
party from a final judgment... provided that the motion . . . is not premised
on one of the grounds for relief enumerated in clauses (b)(l) through
(b)(5)").
167 See Pioneer mv. Serve. Co. v. Brunswick Assocs., 507 U.S.
380, 393, 113 5. Ct. 1489, 123 L. Ed. 2d 74 (1993).
168 See Fed. 11.
Civ. P. 60(b)(6).
169 See, e.g., Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863-864, 108 5. Ct. 2194, 100 L. Ed. 2d 855 (1988)
(judge's failure to recuse himself was, under particular circumstances of case,
"extraordinary circumstances").
170 See, e.g., National Credit Union
Admin. v. Gray, 1 F.3d 262, 266 (4th Cr. 1993) (relief proper when judgment was
rendered without knowledge of movant, and movant's lack of knowledge was not
his fault"we are convinced that this is the type of extraordinary case for
which Rule 60(b)(6) was designed").
171 See, e.g., United States v.
Baus, 834 F.2d 1114,1123-1127(1st Cir. 1987); FairfaxCountywide Citizens v.
Fairfax County, 571 F.2d 1299, 1302-1303 (4th Cir. 1978), ceri deme4 439 US.
1047 (1978).
172 Harman v. Pauley, 678 F.2d 479,481-482 (4th Cir.
1982).
26-28
agent or attorney without the power to bind the
principal to a judgment nonetheless purported to consent to judgment. 173
Motion for relief from judgment or order must usually be
brought in court that rendered judgment or order. Rule 60(b) does not
explicitly limit the court in which a motion for relief from judgment may be
filed. 174 However, it is clear that the drafters of the rule contemplated that
the motion (as opposed to an independent action in equity that could be brought
anywhere that was appropriate) would always be brought "in the court and in the
action in which the judgment was rendered." 175 One exception to this rule is a
judgment rendered in a state court when the proceedings are subsequently
removed to federal court. Once an action is removed to federal court, the
district court to which the action is removed may consider a Rule 60(b) motion,
even if it attacks a judgment initially rendered in state court. 176
Party must make formal motion for court to grant relief,
sua sponte relief not authorized. Rule 60(b) contemplates relief only "on
motion.""" This means that, in almost every case, a court may not grant relief
under Rule 60(b) sua sponte, in the absence of a motion. "' An exception to the
motion requirement is made when a party asserts "fraud on the court." Rule
60(b) preserves a court's inherent power to "set aside a judgment for fraud
upon the court." 179
Moving party must be adversely affected by judgment or
order to be set aside. In most situations, a Rule 60(b) motion will be
granted only on behalf of a party or "a party's legal representative." 180 In
this context, a "party's legal representative" means a nonparty whose interests
are directly affected by the final judgment, that is, one who is in privity
with a party. On occasion, the idea of persons in privity with the original
parties encompasses a wide number of individuals and entities. For example,
individual citizens in an action brought by a state are
173
See, e.g., Resolution Trust Corp. v. Forest Grove, Inc., 33 F.3d 284, 293-294
(3d Cu. 1994) (judgment by confession denied movant due process when confession
made by attorney-in-fact who lacked authority); Washington v. Penwell, 700 F.2d
570,573-574(9th Cu. 1983) (state officers lacked authority to bind State of
Oregon to money judgment in federal court).
174 See Fed. R. Civ. P.
60(b).
175 Fed. R. Civ. P. 60(b), advisory committee note of 1946; see.
e.g., Bankers Mortgage Co. v. United States, 423 F.2d 73,78 & n.9 (5th Cir.
1970) ("The motion for relief from final judgment must be tiled in the district
court and in the action in which the original judgment was entered").
176 First RepublicBank Fort Worth v. Nor-glass, Inc., 958 F.2d 117,
119-120 (5th Cir. 1992).
177 See Fed. R. Civ. P. 60(b).
178
See, e.g., Chavez v. Balesh, 704 F.2d 774, 777 (5th Cir. 1983) ("If the court
acted simply upon its own initiative, then we would not uphold its action under
Rule 60(b), because. 60(b) allows the court to act only 'upon motion.' ").
179 Fed. R. Civ. P. 60(b); see, e.g., Martins Theatre Corp. v. Schine
Chain Theatres, Inc., 278 F.2d 798, 801 (2d Cir. 1960).
180 Fed R. Civ.
P.60(b); see United States v. 5145 Golden State Blvd., 135 F.3d 1312, 1317-1318
(9th Cir. 1998).
26-29
persons in privity with the original
plaintiff. 181 On the other hand, the standing limitation to persons in privity
with an original party may strictly limit who may or may not bring a Rule 60(b)
motion. For example, a person who merely has a contract to indemnify one of the
original parties does not have standing to seek Rule 60(b) relief. 182 Most
defmitely, a party's legal counsel in the case lacks standing to bring a Rule
60(b) motion in his or her own right. Counsel is not a party's "representative"
for standing purposes. 183
Motion must always be brought within a "reasonable"
time. Rule 60(b) states that "[t]he motion shall be made within a
reasonable time." 184 There is only one exception to this rule, and that
applies to judgments that are totally void. As noted above, there is no time
limit on judicial relief from a judgment that is, m fact, already a nullity and
always subject to direct and collateral attack. In all other cases, what is or
is not "reasonable" is not a fixed concept. It depends on the facts and
circumstances of each case. 185 The time during which an appeal is pending is
counted in determining whether a Rule 60(b) motion was filed within a
reasonable time. 186
Motions based on certain grounds must be brought no later
than one year after judgment or order is entered. When the motion is made
on the grounds specified in Rule 60(b)(1) ("mistake, inadvertence, surprise, or
excusable neglect"), (b)(2) ("newly discovered evidence"), or (b)(3) ("fraud..
. , misrepresentation, or other misconduct of an adverse party"), the
motion must be made "not more than one year after the judgment, order, or
proceeding was entered or taken." 187 A court has no power to grant motions
that are flied too late. 188 The one-year maximum time limit is in addition to,
not in lieu of, the requirement that the motion be made within a "reasonable"
time. Thus, even a motion that is made within the one-year period may be denied
if the court determines that it was not made within a reasonable period of
time. 189
191 Eyak Native Village v. Exxon Corp., 25 P.3d 773,
777 (9th dr. 1994).
192 Kern Mfg. Corp. v. Wilder 817 F.2d 1517,
1519-1520 (11th Cir. 1987).
193 Matter of El Paw Refinery, LP, 37 F.3d
230, 234 (5th dr. 1994).
194 Fed. R. Civ. P. 60(b).
195 e.g.,
United States v. Hollzman, 762 F.2d 720,725(9th Cir. 1985) ("Alonim had two
opportunities to appeal judgments he found offensive but presented adequate
reasons for failing in each instance to do so").
196 Nucor Corp. v.
Nebraska Public Power Dist., 999 F.2d 372, 374 (8th Cir. 1993) (time on appeal
counted even though "the judgment was subject to modification on appeal during
this time").
197 Fed. R. Civ. P. 60(b).
198 See, e.g.,
Ackermann v. United States, 340 U.s. 193, 197, 71 S. Ct. 209, 95 L. Ed. 207
(1950) ("A motion for excusable neglect as provided in Rule 60(b)(l) must, by
the rule's terms, be made not more than one year after the judgment was
entered. The judgment ~... was more than four years old... . [N]o relief on
account of "excusable neglect" was available to this petitioner on the motion
under consideration").
199 See, e.g.,White v. American Airlines, Inc.,
915 F.2d 1414, 1425(10th Cir. 1990) ("Although the motion was filed within the
one-year time limit, the district court concluded that the motion was untimely
because it was not filed within a reasonable time.. .. American has not offered
sufficient justification for the delay, and therefore we cannot conclude that
the distiict court abused its discretion in denying the
motion").
26-30
The one-year time limit begins to run when the
"judgment, order, or proceeding [is] entered or taken" 190 Rule 58 describes
all the formalities required for the "entry" of a judgment or order," 191 and
no case has explained that the word "taken" means anything other than "entered"
within the meaning of Rule 58. Setting aside the question of whether permission
from the Circuit Court of Appeals is needed to make a Rule 60(b) motion while
an appeal is pending, virtually ailcourts agree thatapending appeal does
nottolltherunningofthe one-year period. 192
Court of appeals mast grant permission to district court to
rule on Rule 60(b) motion of appeal is pending. The general rule is that a
timely notice of appeal will divest a district court of jurisdiction over the
action, including divesting a district court of the power to grant a Rule 60(b)
motion. 193 Even in the case of a Rule 60(b) motion filed before a notice of
appeal has been filed, the court may lose jurisdiction to grant the motion once
a timely notice of appeal is filed. 194 However, if a Rule 60(b) motion is
filed in the district court while an appeal is pending, the district court may
initially consider the motion and, if the district court indicates that it is
inclined to grant relief, a litigant may ask the appellate court for a remand
or for more limited leave for the district court to rule on and grant the
motion. Virtually all of the circuits now accept this as the proper procedure
for dealing with Rule 60(b) motions while an appeal is pending."195 At one
time, leave of the appellate court was required before a Rule 60(b) motion
could be brought to set aside a judgment that the district court had entered in
accordance with the mandate of an appellate court. However, the United States
Supreme Court has eliminated this requirement. 196
190 Fed.
R. Civ. P. 60(b).
191 See Fed. R. Civ. P. 58.
192 Sec. e.g..
Federal Land Bank of St Louis v. Cupples Bros., 889 F.2d 764,766(8th Cir.
1989); Hancock Indus. v. Schaeffer, 811 F.2d 225, 239 (3d dr. 1987).
193 See, e.g., Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993)
("As a general rule, the district court loses jurisdiction over an antion once
a party files a notice of appeal, and jurisdiction transfers to the appellate
court").
194 Norman v. Young. 422 F.2d 470.473-474 (10th Cir. 1970)
("before arguing his 60(b) motion, defendants' lawyer filed a notice of appeal,
taking the case out of the trial court's juzisdiction").
195 See.
e.g.,United States v. Accounts Nos. 3034504504 & 144-07143. 971 F.2d 974,
988 (3d Cir. 1992); Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cu.
1992); cf. Scott v. Younger, 739 F.2d 1464,1466(9th Cm. 1984) ("Inthiscircuit,.
. .thefllingofanoticeof appeal divests the district court of jurisdiction to
dispose of the motion").
196 See Standard Oil of CaL v. United States,
429 U.S. 17, 19, 97 S. Ct. 31, 50 L Ed. 2d 31 (1976) ("We see no reason to
continue the existence of the 'unnecessary and undesirable clog on the
proceedings' ').
26-43 Moore's Forms Form No. 26:10
Substantive Relief From Judgment; Rule 60(b)
General Forms
Form No. 26:10
General Form of Motion for Relief From Judgment or Order
___________________ [name of attorney] ________________
[name affirm]
____________________ [street address of attorney's firm]
[phone number of attorney 's firm]
_____________________ [fax
nwnber, if available]
_____________________ [state bar Ld. number, if
required by local rule]
Attorneys for [name of party]
UNITED STATES
DISTRICT COURT
______ District of ______
Civil Action No. ______
[Name of plaintiff MOTION FOR RELIEF (Fed. R. Civ. P. 60(b))
VS.
Hearing Date: ______
[Name of defendant], Hearing Time: Defendant
Courtroom:
Relief Sought
________ [Name of
moving party]. [party designation, e.g., defendant] moves this court, pursuant
to Rule 60(bX-), for an order set aside the [default] judgment entered in this
action on [date] [optional provision for use when default judgments are being
set aside: and for leave to file the proposed (proposed pleadings, e.g., answer
and motion to dismiss),
(a copy or copies) of which (is or are) attached to
this motion].
Grounds for Motion
[Name of moving party]
should be granted relief from the [default]
judgment in this matter
because: [Set out grounds for relief e.g.,
1. The summons and complaint
in this action were served on
(name) who, at that time, was (title, e.g.,
the Vice President of
26-44
2. Despite the technical correctness of service in this
action, (name of moving party) did not receive actual notice because (name) was
personally served less than an hour prior to the time (he or she) suffered a
fatal heart attack.
3. The unexpected death of (name) threw several aspects of
daily operations of (name of moving party) into confusion, including the giving
of notice to other officers and directors of (name of moving party) of the
pendency of the suit and delivery of the summons and complaint to the attorneys
for (name of moving parry) for a prompt response.
4. The affidavit of (name of affiant) makes clear that the
summons and complaint were not actually discovered by (name of moving party)
until (date), when (name)'s eventual successor discovered the papers in
(name)'s desk.
5. Although only (number) of days had elapsed between the
service of papers in this action and the time that they were eventually
forwarded to counsel, (name of opposing party) had, by that time, obtained not
only the entry of (name of moving party)'s default in this action, but a
clerk's judgment against (name of moving parry) entered on (date).
6. Under the circumstances more carefully detailed in the
affidavits of _________ and (names of affiants), it is clear that the failure
to make a timely response in this action was "excusable neglect" within the
meaning of Rule 60(b)(l) of the Federal Rules of Civil Procedure.
7. Prior to making this motion, counsel for (name of moving
party) contacted counsel for (name of opposing party) and requested that the
parties stipulate and agree to set this short-lived default and default
judgment aside, but counsel for (name of moving party) refused to do so.
8. (Name of moving party) has a good and valid defense to all
of the claims set out in the complaint in this action. In summary, but as is
more fully argued in the Supporting Memorandum of Points and Authorities, (name
of moving parry) will show that (name of opposing party) was not permitted to
perform, and (name of moving party) was not permitted to accept performance of
the contract in question because (name of moving party), contrary to the
express provisions of the written contract in question failed to apply for and
be listed as an "accepted contractor or subcontractor" by the Department of
_________ A proposed answer setting out this, and other defenses is attached to
this motion.
9. There was no undue delay in bringing this motion, and
(name of opposing parry) will not be unduly prejudiced if the court sets aside
the default
26-45
judgment in this matter and allows (name of moving j on the
merits].
Supporting Papers
This motion is based on this document, the attached Notice
Certificate of Service, the Affidavits of ______ and _____ afflants], the
Supporting Memorandum of Points and Authoritiesll,I Answer attached to this
motion], all of the pleadings, papers, and on file in this action, and whatever
argument and evidence may be hearing on this motion.. Dated: _____
[firm name]
By:
[signature]
[typed name]
Attorneys for |
