F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 6 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
FRANK MEHDIPOUR; ALI
MEHDIPOUR; LADONNA
MEHDIPOUR,
Plaintiffs-Appellants,
v. No. 98-6168
(D.C. No. 95-CV-312)
THE CITY OF OKLAHOMA CITY, a (W.D. Okla.)
municipality and political subdivision
of the State of Oklahoma; PATRICK
BURNE, as public officer and
individual,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
ordered submitted without oral argument.
Plaintiffs Frank Mehdipour and Ali Mehdipour, appearing pro se, appeal
the district court’s denial of their motion to vacate judgment pursuant to Fed. R.
Civ. P. 60(b)(4). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
Plaintiffs, along with Ali’s wife LaDonna Mehdipour, filed a civil rights
action on June 5, 1992, against the City of Oklahoma City and police officers
Patrick Byrne and Winforde Martin, claiming defendants subjected them to false
arrest, performed an illegal search, and improperly demolished a building
belonging to them. The district court dismissed the action on March 31, 1994,
without prejudice, because plaintiffs failed to obtain timely service, failed to
respond to one defendant’s motion to dismiss, and failed to comply with a direct
court order. Plaintiffs did not appeal that dismissal.
Plaintiffs filed a second, essentially identical, action on February 28, 1995.
The district court granted summary judgment in favor of defendants on January
23, 1997. Plaintiffs appealed and we affirmed the district court’s judgment on
December 3, 1997.
Not satisfied with the outcome of the litigation, plaintiffs first attempted,
without success, to vacate the district court’s judgment in the original 1992
action. Plaintiffs then filed a Fed. R. Civ. P. 60(b)(4) motion to vacate the 1995
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judgment, arguing the attorney who represented them in the 1995 action
effectively waived their claims by admitting, in response to defendants’ summary
judgment motion, that probable cause existed for the City and its employees to
arrest plaintiffs. According to plaintiffs, the district court’s grant of summary
judgment was void because they neither authorized nor agreed with such
admission. The court denied plaintiffs’ motion to vacate judgment on March 27,
1998, concluding it was “frivolous and without merit.”
We review de novo a district court’s denial of a Rule 60(b)(4) motion to
vacate judgment. See Wilmer v. Board of County Comm’rs , 69 F.3d 406, 409
(10th Cir. 1995). In V.T.A., Inc. v. Airco, Inc. , 597 F.2d 220, 224-25 (10th Cir.
1979), we outlined the standards for determining whether a judgment is void
under Rule 60(b)(4):
A judgment is not void merely because it is or may be erroneous.
[Citations omitted.] For a judgment to be void under Rule 60(b)(4), it
must be determined that the rendering court was powerless to enter
it. If found at all, voidness usually arises for lack of subject matter
jurisdiction or jurisdiction over the parties. It may also arise if the
court’s action involves a plain usurpation of power or if the court has
acted in a manner inconsistent with due process of law. In the
interest of finality, the concept of setting aside a judgment on
voidness grounds is narrowly restricted.
Applying these standards to the case before us, we conclude the underlying
judgment is not void. Nothing in the record demonstrates the district court lacked
personal or subject matter jurisdiction, nor is there any indication the district
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court’s action involved a plain usurpation of power or that the court acted in a
manner inconsistent with due process of law. Ultimately, the record demonstrates
only that plaintiffs are dissatisfied with the outcome of the case and believe their
counsel is to blame. Because the Sixth Amendment right to effective assistance
of counsel does not apply in civil cases, an allegation that counsel was
incompetent is no basis for reversing the underlying judgment. See MacCuish v.
United States , 844 F.2d 733, 735 (10th Cir. 1988).
The judgment of the district court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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