F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 5 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
ALI MEHDIPOUR,
Plaintiff-Appellant,
and
FRANK MEHDIPOUR; LADONNA
MEHDIPOUR,
No. 98-6310
Plaintiffs,
D.C. No. CIV-92-977-L
D.C. No. CIV-95-312L
v.
(W.D. Okla.)
THE CITY OF OKLAHOMA CITY, a
municipality and political sub-division
of the State of Oklahoma, and
PATRICK BURNE (sic) and
WINFORDE “WIMPY” MARTIN, as
public officers and as individuals,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, or 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.
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)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
Plaintiff Ali Mehdipour, 1 proceeding pro se, appeals the district court’s
denial of the motion to vacate a December 12, 1995, judgment pursuant to Fed. R.
Civ. P. 60(b). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
We have occasion to once again revisit segments of the tortured history of
these proceedings. See, e.g. Mehdipour v. City of Okla. City, 161 F.3d 18 (10th
Cir. 1998) (unpublished); Mehdipour v. City of Okla. City, 145 F.3d 1346 (10th
Cir. 1998) (unpublished); Mehdipour v. City of Okla. City, 131 F.3d 152 (10th
Cir. 1997) (unpublished). On June 5, 1992, the Mehdipours filed a civil rights
action against the City of Oklahoma City and police officers Patrick Byrne and
Winforde Martin. On March 31, 1994, the district court dismissed the action
without prejudice for failure to obtain timely service, failure to respond, and
1
The brief is not clear as to the identity of the Appellant; it is signed only
by Ali Mehdipour. To the extent Ali Mehdipour is attempting to appeal on behalf
of his co-plaintiffs, Frank Mehdipour and Ladonna Mehdipour, we simply note
one pro se litigant, who is not an attorney, cannot represent other pro se parties.
See 28 U.S.C. § 1654 (“parties may plead and conduct their own cases personally
or by counsel”); 10th Cir. R. 46.5 (“[a] party who is not represented by an
attorney must sign any motion, brief or other paper”). We therefore treat Ali
Mehdipour as the sole appellant.
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failure to comply with a direct court order. In addition, the court ordered the
Mehdipours to pay defendants’ costs and attorney’s fees arising in any future
attempts to prosecute the same claims in any other court. The Mehdipours did not
appeal this order.
Instead, on February 28, 1995, the Mehdipours filed a second suit based on
the same set of facts underlying the 1992 suit. The court ordered them to post a
bond in the amount of the costs and fees expended by defendants in the 1992
case. The Mehdipours posted the bond for $6,485.10. The court allowed
defendants to execute on the bond, and the action proceeded. The Mehdipours
appealed the order allowing defendants to execute on the bond. We dismissed the
appeal for lack of jurisdiction because the order was not final or otherwise
immediately appealable. We noted in the order that the Mehdipours could appeal
after final adjudication. In January 1997, the district court granted summary
judgment for defendants in the 1995 suit.
The Mehdipours then initiated a number of attacks on the outcome of their
case and on the payment of fees. 2 On March 25, 1998, at the end of a string of
unsuccessful attempts, the Mehdipours filed the instant Rule 60(b) motion to
vacate the 1995 order to post bond. They contended under Rule 60(b)(4) that the
2
Over the last year, we have addressed an appeal of the 1997 summary
judgment, a Fed. R. Civ. Pro. 60(b) motion to vacate the 1992 original dismissal
order, and another Rule 60(b) motion to vacate the 1997 judgment.
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1995 order was erroneous and therefore void. The district court denied the
motion, finding it was not filed within a reasonable time and the facts did not
demonstrate the exceptional circumstances needed to vacate a judgment under
either Rule 60(b)(4) or 60(b)(6).
In reviewing the district court's determination that its judgment is not void
under Rule 60(b)(4), we review de novo. See Wilmer v. Board of County
Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995). The moving party must show lack
of jurisdiction or that the court acted in a manner inconsistent with the due
process of law. See 11 C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE &
P ROCEDURE § 2862 (2d ed.1995). Setting aside a judgment on voidness grounds
is narrowly restricted. Even an erroneous judgment does not amount to a void one
under Rule 60(b)(4). See id. Mr. Mehdipour has not shown lack of jurisdiction
or a violation of due process.
We review the denial of a motion under Rule 60(b)(6) only for an abuse of
discretion. See Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.
1996). However, in determining whether a district court abused its discretion, we
recognize that "‘[r]elief under Rule 60(b) is extraordinary and may only be
granted in exceptional circumstances.’" Id. (quoting Bud Brooks Trucking, Inc. v.
Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)). Furthermore, a
motion for relief must be made in a “reasonable time.” See Fed. R. Civ. Pro.
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60(b).
There was no abuse of discretion here since nothing in the record
demonstrates the exceptional circumstances required to vacate a judgment.
Furthermore, we agree with the district court that Mr. Mehdipour waited too long
to file his motion under Rule 60(b)(6). The time limitation began to run on June
27, 1996, when the bond was posted. Mr. Mehdipour filed the instant motion in
March 1998, having sat for almost two years on his right to assert it. His time has
long since passed.
After careful review of the record, we AFFIRM the district court.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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