Bowie v. Maddox

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID M. BOWIE, Pro Se )
)
Plaintiff, )
)
v. ) Civil Action No. 03-948 (RCL)
)
CHARLES C. MADDOX et al. )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiff David M. Bowie moves under Federal Rule of Civil Procedure 60 for

relief from this Court’s order of March 31, 2008 denying plaintiff’s motion for judgment

as a matter of law and motion for a new trial. Plaintiff also moves for post-judgment

discovery. Upon consideration of the motions [150, 159], the oppositions [155, 160], the

replies [158, 161], the entire record of the case, and the applicable law, the Court

concludes that the motions should be denied.

I. Background

In August 2002, plaintiff was terminated from his position in the District of

Columbia Office of the Inspector General (“DCOIG”). (Mem. Op. [146] at 1.) Plaintiff

filed suit, alleging wrongful termination and violation of other federal and District of

Columbia employment and civil rights laws. (Complaint [1] at 50–51.) On May 25,

2007, the jury returned a verdict for defendants on each claim. (Verdict Form [120] at 1–

5.) Plaintiff moved for judgment as a matter of law or, in the alternative, for a new trial.

(Mot. for J. as a Matter of Law [124] at 1.) This Court denied the motion on March 31,
2008. (Order [147] at 1.) On March 31, 2009 at 10:57 PM, plaintiff filed a motion for

relief from that order. (Pl.’s Mot. for Relief [150-2] Ex. R.)

Plaintiff alleges that the verdict and judgment in his case were procured through

fraud when a fraud perpetrated in a separate case entered the proceedings. (Pl.’s Mot. for

Relief [150] at 2.) In that separate case, Johnson v. Maddox, 270 F. Supp. 2d 38 (D.D.C.

2003), aff’d sub nom. Johnson v. Williams, 117 F. App’x. 769 (D.C. Cir. 2004), Johnson

sued his former DCOIG supervisor for wrongful termination and retaliation. An affidavit

was submitted on behalf of plaintiff, who worked at the DCOIG at the time of Johnson’s

dismissal. (Pl.’s Mot. for Relief [150] Exs. K, M.) Plaintiff asserts that he did not sign or

otherwise approve the affidavit, which discussed plaintiff’s relationship with Johnson and

the events leading to Johnson’s termination. (Id. Exs. H, M.) Plaintiff contends that the

affidavit was a forgery and that defendants and their attorneys lied about its authenticity.

(Id. at 6–10.) Because this Court “relied upon the fraudulent assertions of defendants in

Johnson v. Maddox,” plaintiff contends that he was denied a “fair and impartial trial” and

“the ability to fairly and fully present his case.” (Id. at 3.) He also claims defendants and

their attorneys perpetrated various other acts of fraud, which are discussed below.

II. Legal Standard

Plaintiff proceeds pro se in this matter, therefore the Court will construe his

filings liberally. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).

Plaintiff’s fraud claims arise under the Court’s statutory and equitable powers.

First, Rule 60(b)(3) permits a court to relieve a party from a “final judgment, order, or

proceeding” for “fraud . . . misrepresentation, or misconduct by an opposing party.”

2
(Pl.’s Mot. for Relief [150] at 1.) Second, the Court’s equitable power permits it to set

aside judgments based on “fraud on the court.”1 (Id. at 2.) Accordingly, plaintiff seeks

relief from judgment, an order to schedule discovery, and leave to file independent

actions for fraud upon other courts. (Id. at 28; Pl.’s Mot. for Disc. [159] at 1.)

A motion for relief from judgment under Rule 60(b)(3) must be filed “within a

reasonable time” and “no more than a year after the entry of the judgment or order . . . .”

FED. R. CIV. P. 60(c)(1). “What constitutes a ‘reasonable time’ depends upon the facts of

each case, taking into consideration the interest in finality, the reason for the delay, the

practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to

other parties.” Osborne v. Homeside Lending, Inc., 379 F.3d 277, 283 (5th Cir. 2004)

(quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)).

“Fraud on the court” is a claim that exists to protect the integrity of the judicial

process, and therefore a claim for fraud on the court cannot be time-barred. See 12

JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.21[4][g] & n.52 (3d ed.

2009) (citing Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)). Although the

requirements for a successful claim of fraud on the court elude precise definition, several

guiding principles emerge from the case law. First, the fraud must be egregious.2

“‘Fraud upon the court’ . . . embrace[s] only that species of fraud which does or attempts

to[] subvert the integrity of the court itself, or is a fraud perpetrated by officers of the

1
FED. R. CIV. P. 60(d)(3) provides that “[t]his rule does not limit a court’s power to set aside judgment for
fraud on the court.” See also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245–46 (1944)
(courts possess the equitable power “to set aside fraudulently begotten judgments”).
2
Fraud on the court does not encompass “ordinary fraud,” and thus must be distinguished from Rule
60(b)(3), which permits relief from judgment even for unintentional misrepresentations. MOORE ET AL.,
supra, § 60.43[1][a]. “[I]f fraud that may form basis of independent action ‘is not kept within proper limits
but is ballooned to include all or substantially all species of fraud within 60(b)(3) then the time limitation
upon 60(b)(3) motions will be meaningless.’” Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 49
(1st Cir. 1995) (quoting 7 MOORE ET AL., FEDERAL PRACTICE ¶ 60.33 (1995)).

3
court so that the judicial machinery cannot perform in the usual manner its impartial task

of adjudging cases that are presented for adjudication, and relief should be denied in the

absence of such conduct.” Synanon Church v. United States, 579 F. Supp. 967, 974

(D.D.C. 1984) (quoting 7 MOORE ET AL., FEDERAL PRACTICE ¶ 60.33 (1995)); see also

England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960) (fraud on the court requires “an

unconscionable plan or scheme which is designed to improperly influence the court in its

decision”) (citing Hazel-Atlas, 322 U.S. 238). An “indispensable” element is that the

fraud “prevented a party from presenting his case.” Reintjes, 71 F.3d at 48 (citing

Chicago, R.I. & P. Ry. v. Callicotte, 267 F. 799, 810 (8th Cir. 1920)). Second, the

perpetrator of the fraud must possess a sufficient mental state. One list of essential

elements requires the fraudulent conduct to be “intentionally false, wilfully blind to the

truth, or [] in reckless disregard for the truth . . . .” Demjanjuk v. Petrovsky, 10 F.3d 338,

348 (6th Cir. 1993); cf. Sununu v. Philippine Airlines, Inc., 638 F. Supp. 2d 35, 41

(D.D.C. 2009) (listing knowledge of falsity and intent to deceive as elements of common

law fraud). Third, the extraordinary step of setting aside a judgment requires “clear and

convincing” evidence of fraud on the court. Shepherd v. Am. Broad. Cos., 62 F.3d 1469,

1476–77 (D.C. Cir. 1995).

III. Discussion

A. Timeliness of Plaintiff’s Rule 60(b)(3) Motion

The order from which plaintiff seeks relief was entered on March 31, 2008.

Plaintiff asserts that he filed his motion for relief from that judgment exactly one year

later on March 31, 2009. Defendants argue that the motion was not actually filed until

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April 6, 2009, and not docketed until April 28.3 (Defs.’ Mem. of P. & A. [155] at 1–2.)

If the motion was filed later than March 31, 2009, it would have to be denied as untimely

because Rule 60(b)’s one-year time limit is inflexible. See Carr v. District of Columbia,

543 F.2d 917, 925–26 (D.C. Cir. 1976). The Court need not resolve this dispute because

plaintiff’s motion was not filed “within a reasonable time,” as required by Rule 60(c)(1).

A movant must offer sufficient justification for delaying a Rule 60(b) motion

almost until the one-year deadline. See White v. Am. Airlines, Inc., 915 F.2d 1414, 1425

(10th Cir. 1990). Plaintiff argues that four grounds justify his delay. First, he argues that

much of the information he needed to establish fraud upon the court came from the

Johnson litigation, to which he was not a party. (Pl.’s Reply [158] at 2.) Johnson

appealed his case upon judgment by the District Court, and thus “the precise contours of

the fraud upon the court that serves as the basis for Plaintiff’s [R]ule 60 motion were

unknown to him” until that appeal. (Id.) Second, plaintiff, who is proceeding pro se, has

experienced “significant confusion” regarding the correct procedures to follow because

the alleged fraud was visited upon multiple courts. (Id. at 2–3.) Third, because the order

from the Court of Appeals granting him leave to file a Rule 60 motion was issued on

March 19, 2009, he argues the dispositive question of timeliness is whether the twelve-

day period from March 19 to the date of his filing constituted an unreasonable delay. (Id.

at 4.) Finally, plaintiff argues he had to spend considerable time drafting his motion and

obtaining the documents and records supporting his arguments. (Id. at 3–4.) The Court

addresses each argument in turn.

3
Plaintiff first filed by e-mailing his documents to the Court instead of using the Court’s Electronic
Document Filing System. (Pl.’s Mot. for Relief [150-2] Ex. R.) The clerk’s office informed him the next
day that he did not have permission to file electronically. (Id.) He submitted paper filings, which the Court
received after March 31. It is disputed whether plaintiff had permission to file electronically (Pl.’s Reply
[158] at 1–2) and, if he did, whether sending filings to the Court by e-mail constitutes a valid filing.

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1. Information Needed for the Motion Was Unavailable

Plaintiff asserts that much of the information required to establish fraud under

Rule 60(b)(3) was unknown to him until a case to which he was not a party, Johnson v.

Maddox, came before the Court of Appeals. (Id. at 2.) The Johnson litigation is relevant

here, plaintiff argues, because fraud perpetrated in that case entered into plaintiff’s own

case. (Pl.’s Mot. for Relief [150] at 2–3.) The Court is not convinced that information

from the Johnson case was actually unavailable to plaintiff.

Plaintiff’s basic argument is that defendants submitted a fraudulent affidavit in his

name in the Johnson case and then lied about the authenticity of that affidavit throughout

those proceedings. (Pl.’s Mot. for Relief [150] at 6–10.) It is unclear how plaintiff

remained unaware of this purported fraud and why the information he needed to establish

the fraud remained unavailable until Johnson v. Maddox came before the Court of

Appeals. (See Pl.’s Reply [158] at 2.) Plaintiff has submitted one exhibit related to the

Johnson case as it was presented to the Court of Appeals—a brief written on behalf of the

defendants in that case, some of whom are also defendants in plaintiff’s case—but that

exhibit is dated April 23, 2004, about four years before final judgment was entered in

plaintiff’s case. (Pl.’s Mot. for Relief [150-2] Ex. O.) Unless plaintiff was prevented

from accessing the court filings in Johnson v. Maddox for the past five years (which he

does not allege), the Court does not see how the appeal of the Johnson case is relevant to

his claim of not having the information needed to support his argument.

The Court must reject plaintiff’s claim that he did not have the information he

needed to support his fraud argument. Plaintiff states that he was aware as early as 2003

that defendants may have perpetrated a fraud. (Pl.’s Mot. for Relief [150] at 10–11.)

6
Plaintiff testified before Magistrate Judge Facciola that the affidavit submitted on his

behalf in the Johnson case was not actually his. (Id. at 10.) He later stated that though he

was not prepared at that time to accuse anyone of fraud, he knew there was “something

wrong.” (Id. Ex. M at 67.) Thus, at the time of judgment in plaintiff’s case in 2008, he

had known for at least four years that a fraud may have occurred. Plaintiff’s one-year

delay in filing a Rule 60 motion therefore could not have been reasonable. See Osborne,

379 F.3d at 283 (“What constitutes a ‘reasonable time’ depends upon the facts of each

case, taking into consideration . . . the practical ability of the litigant to learn earlier of the

grounds relied upon . . . .”); cf. United States v. Cleaver, 319 F. App’x. 728, 731 n.2 (10th

Cir. 2009) (two-year delay in filing Rule 60(b)(6) motion not reasonable when movant

knew immediately of his claim at the time judgment was rendered). To the extent that

plaintiff was “ambushed” and “thrown for a loop” during his cross-examination before

Magistrate Judge Facciola (Pl.’s Mot. for Relief [150] at 11), the Court finds that mere

surprise is insufficient grounds for a one-year delay, especially when the “ambush” in

question occurred four years before judgment was rendered in plaintiff’s case.

2. Pro Se Movant Experienced “Significant Confusion”

Plaintiff argues that the one-year delay in filing his Rule 60 motion resulted from

the “unique nature of this case,” which caused him to experience “significant confusion”

in how to pursue his fraud claim. (Pl.’s Reply [158] at 2.) Because the alleged fraud was

perpetrated upon the Equal Employment Opportunity Commission, three district court

judges, and the Court of Appeals, he argues, he did not know where to file his motion,

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even after researching the issue. (Id. at 2–3.) He ultimately filed with the Court of

Appeals, which denied his motion without prejudice on March 18, 2009. (Id. at 3.)

To the extent plaintiff argues—coming as a pro se plaintiff with no formal legal

training—that his level of legal ability serves as grounds for a more relaxed standard of

reasonableness, the Court cannot validate such a proposition. Although the Supreme

Court has relaxed certain standards and rules when confronted with pro se filings by

prisoners in criminal cases, it “ha[s] never suggested that procedural rules in ordinary

civil litigation should be interpreted so as to excuse mistakes by those who proceed

without counsel.”4 McNeil v. United States, 508 U.S. 106, 113 (1993).

Although the Supreme Court’s language in McNeil does not appear to act as a

complete bar to an untrained pro se litigant being held to a lower standard than a licensed

attorney, this case does not present circumstances compelling such a standard. Plaintiff

had been representing himself for almost five years when the final judgment was

rendered in his case. (See Compl. [1] at 1; Order & J. [148] at 1.) During that time, he

must have become aware of the Court’s desire for speedy resolution of cases and the

unforgiving standard for filing deadlines. He also must have developed a sense that the

Court does not lightly forgive a lawyer’s failure to research and follow the correct

procedures regardless of how complex the issue is. If plaintiff truly was having difficulty

determining the correct procedure, the Court finds it implausible that he could not have

consulted with an attorney for a modest fee or asked one of the numerous lawyers he

must have come into contact with as a former federal law enforcement agent.

4
McNeil deals with a filing deadline that has an absolute time limit rather than with the more flexible
“reasonableness” standard at issue here. Nonetheless, the Supreme Court’s ruling was predicated on
“evenhanded administration of the law,” which remains a valid principle here. 508 U.S. at 113 (quoting
Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).

8
3. Time Period for Measuring Reasonableness of Delay

Plaintiff argues that, because he originally filed a Rule 60(b) motion with the

Court of Appeals, and because it did not rule on his motion until March 18, 2009, the

reasonableness of his delay in filing should be measured from that date rather than from

when final judgment was rendered in his case on March 31, 2008. (Pl.’s Reply [158] at

3–4.) Plaintiff does not cite and the Court has been unable to find any authority

supporting that proposition. The timeliness of a Rule 60 motion is universally measured

from the date of the judgment being attacked. See McMillian v. District of Columbia,

241 F.R.D. 12, 14 (D.D.C. 2004) (collecting cases). As explained above, the Court will

not excuse a pro se plaintiff’s procedural missteps in a civil case. Plaintiff argues he had

to obtain leave from the Court of Appeals to file his Rule 60 motion after appealing his

case (Pl.’s Reply [158] at 3), but he should have considered how an appeal would affect

the timeliness of a Rule 60 motion. This conclusion also disposes of plaintiff’s claim that

his delay is excused by his need to take time to draft his motion and obtain supporting

documents and records once the Court of Appeals granted him leave to file. (Id. at 4.)

4. Conclusion

Plaintiff filed a Rule 60 motion with little over an hour before the one-year time

limit ran out. (Pl.’s Mot. for Relief [150-2] Ex. R.) Plaintiff did not adequately justify

his delay and was already aware of the grounds upon which his motion relied. Balancing

these factors against the interest in finality and prejudice to the defendants, Osborne, 379

F.3d at 283, the Court denies plaintiff’s claims arising under Rule 60(b) as untimely filed.

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B. Fraud on the Court

Plaintiff alleges that defendants’ submission of a fraudulent affidavit in the

Johnson litigation constituted fraud on the court when the Court “relied upon the

fraudulent assertions of defendants” arising out of that separate case. (Pl.’s Mot. for

Relief [150] at 2–3.)

Here, plaintiff’s claim of fraud on the court must be denied. First, plaintiff does

not provide clear and convincing evidence of conduct that rises to the level of fraud on

the court or of knowing or reckless misstatements on the part of defendants and their

counsel. Second, he was aware of a possible fraud throughout the proceedings and thus

was not prevented from presenting his case fully and fairly.

1. Plaintiff Does Not Prove Fraud On The Court By Clear And Convincing Evidence

To constitute fraud on the court, the fraud must be part of an “unconscionable

plan or scheme,” England, 281 F.2d at 309, or “subvert the integrity of the court itself.”

Synanon Church, 579 F. Supp. at 974. Such a plan cannot be garden variety fraud; it

must rise to the level of bribing a judge, jury tampering, designing a scheme intended to

deceive the court, or involvement of an officer of the court in perpetrating a fraud. See

Lockwood, 46 F.R.D. at 632 (collecting cases). The fraudulent act must be “intentionally

false, wilfully blind to the truth, or [] in reckless disregard for the truth . . . .” Demjanjuk,

10 F.3d at 348. Plaintiff presents a litany of allegations about the purported fraud (Pl.’s

Mot. for Relief [150] at 2–21), but fails to provide clear and convincing evidence that the

alleged misrepresentations meet these requirements. See Shepherd, 62 F.3d at 1476–77.

10
 a. Plaintiff states that defendants lied when they told the Court of Appeals, Judge

Urbina, and Magistrate Judge Facciola that they had submitted plaintiff’s affidavit to the

EEOC and had in fact not done so. (Pl.’s Mot. for Relief [150] at 6, 14–15.) However,

plaintiff’s claims are nothing more than bare allegations and hypotheses. For example,

he asserts that the status of one of defendants’ attorneys as a deputy in the Office of

Corporation Counsel by itself constitutes proof that an officer of the court asserted that

plaintiff’s affidavit was submitted to the EEOC while knowing that assertion to be false.

(Id. at 6.) Although her status may indicate that she is an officer of the court, it does

nothing to prove the other elements of plaintiff’s assertion. Such non sequiturs permeate

plaintiff’s motion, but nowhere does he provide clear and convincing evidence that

defendants’ representations were more than mere oversight or mistake.

b. Plaintiff asserts that defendants falsely represented the authenticity of

plaintiff’s affidavit before Magistrate Judge Facciola. (Id. at 7.) First, he states that an

affidavit submitted by one of the defendants’ attorneys, Gail Davis, proves that an

attorney at DCOIG perjured herself when she testified about the authenticity of plaintiff’s

affidavit. (Id. at 9.) He also claims that the information in the affidavit was “deliberately

withheld from the Facciola court.” (Id. at 8.) Second, he provides e-mails between

himself and the DCOIG attorney that are supposed to prove the falsity of her testimony.

(Id. Exs. B, C.) Even if the attorney’s statements were false, plaintiff neglects that the

events about which she testified occurred in 2000, three years before her testimony. (See

id. at 9.) Plaintiff has failed to clearly and convincingly prove that the discrepancies

resulted from anything more than mistake or the attorney’s faulty memory. Furthermore,

11
if defendants failed to give information to Magistrate Judge Facciola, plaintiff submits no

proof that this omission was knowing or reckless.

c. Plaintiff asserts that the affidavit submitted in his name was a forgery. (Id. at

10.) His evidence consists of typographic differences between the purported forgery and

documents that he submitted, his own testimony before Magistrate Judge Facciola, and

circumstantial evidence regarding the dates of the various affidavits and signatures to

which plaintiff refers. At best, plaintiff’s evidence raises the mere possibility that

defendants engaged in forgery, but he does not present the sort of unassailable evidence

required to overcome the finality of a judgment. Cf. Lockwood, 46 F.R.D. at 634 (“[T]he

law favors an end to lawsuits rather than a free reopening and retrial of them.”).

d. Plaintiff further asserts that defendants perpetrated fraud on the EEOC when

they made reference to plaintiff’s affidavit but had not submitted it to the EEOC. (Pl.’s

Mot. for Relief [150] at 17.) Again, plaintiff makes only bare allegations and does not

clearly and convincingly prove that defendants’ statement was more than mere mistake.

e. Plaintiff takes issue with the Court’s reliance on Gail Davis’s statement in a

2004 affidavit that “[plaintiff] was free to submit his affidavit on Johnson’s or his own

behalf and independent from the OIG’s position statement.” (Id. at 18, Ex. P.) He argues

that none of the defendants alerted plaintiff that his affidavit had not been sent to the

EEOC. (Id. at 18.) Although plaintiff might have been less likely to submit his affidavit

without knowledge that it had not already been submitted, he fails to show an

affirmatively false statement on Davis’s part or that any defendant had an affirmative

duty to tell him the affidavit had not been sent.

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 f. Plaintiff claims that Gail Davis lied in a 2004 affidavit when she stated that

plaintiff was out of his office when she met with defendants Maddox and Andersen. (Id.

at 19, Ex. P.) Plaintiff provides no proof that this statement was untrue. He merely states

that Davis made no attempt to contact him before or during these meetings. Even if her

statement was not true, plaintiff provides no clear and convincing evidence that her

misstatement was more than a mistake or lapse of memory.

g. Plaintiff argues that Davis fraudulently stated in a 2004 affidavit that plaintiff

edited the affidavit she prepared on his behalf. (Id. at 19–20, Ex. P.) He argues this

statement is fraudulent because he clearly refused to sign the affidavit she prepared and

instead drafted his own. (Id. at 20.) Here, Davis may have been under the impression

that plaintiff was cutting out her words in the affidavit and replacing them with his own,

which is a valid definition of “edit.” She may also have mistakenly used the word “edit”

when she meant something else. Plaintiff does not clearly and convincingly prove any

knowing or reckless deception on her part.

h. Plaintiff argues that Branson and Andersen were working on the allegedly

forged affidavit two weeks after the EEOC filing deadline had passed for the sole purpose

of providing Maddox a stronger legal defense in the Johnson case. (Id. at 20.) He also

argues that they circumvented EEOC instructions only with respect to plaintiff’s

affidavit, which evinces fraudulent intent. (Id. at 21.) Plaintiff provides no evidence to

support these conclusory assertions.

i. Plaintiff makes much of the fact that officers of the court were involved in some

of the alleged misrepresentations. (Pl.’s Reply [158] at 10–13.) Even if they did make

misrepresentations, their status as officers of the court is not enough to prove fraud on the

13
court. Some form of intentional misconduct must be demonstrated. See Demjanjuk, 10

F.3d at 348; In re Intermagnetics Am., Inc., 926 F.2d 912, 916–17 (9th Cir. 1991). As

explained above, plaintiff has failed to clearly and convincingly show that any intentional

misconduct has occurred.

j. Plaintiff’s “newly discovered evidence” is similarly deficient. The affidavit by

Robert Isom and accompanying evidence are supposed to prove that the re-inspection of

plaintiff’s division at DCOIG, which formed the basis of his termination, was pretextual.

(See Pl.’s Mot. for Relief [150] at 21–27, Exs. A-1 to -6.) Even assuming these exhibits

prove fraudulent acts by the defendants, they do not show fraud on the court. Plaintiff

does not provide clear and convincing evidence that defendants created any of the

documentary evidence for the purpose of deceiving this or any other court, nor that

defendants submitted these documents to the Court while knowing they were false.

To the extent that plaintiff’s new evidence supports a Rule 60(b)(2) motion for

“newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b),” such a motion would be

barred as untimely. As explained above, plaintiff’s motion was not filed “within a

reasonable time.” FED. R. CIV. P. 60(c)(1).

2. Plaintiff Was Able to Present His Case Fully and Fairly

In Reintjes, the First Circuit denied an independent action for relief from

judgment when the movant only submitted proof of an adverse witness’s perjury at trial.

71 F.3d at 46. The court reasoned that perjury did not amount to fraud on the court in

part because the movant had the opportunity to counteract perjury through discovery and

14
cross-examination.5 Id. at 49. This case presents an analogous situation. Ever since the

Johnson trial in 2003, plaintiff was aware of possible fraud by defendants. As a witness

in that case, he challenged the authenticity of the affidavit that was submitted in his

name. (Pl.’s Mot. for Relief [150] Ex. M.) He stated that, although he was not prepared

to level any accusations of fraud at that time, he knew there was “something wrong.” (Id.

at 11, Ex. M at 67.) Thus, during the preparation for trial in his own case in 2007,

plaintiff had both knowledge of possible fraud and the opportunity to engage in discovery

to uncover fraud and to raise allegations thereof. Because the alleged fraud did not

prevent plaintiff from presenting his case fully and fairly, Reintjes, 71 F.3d at 48, his

claim of fraud on the court must be denied.

C. Plaintiff’s Motion for an Order to Schedule Discovery

Plaintiff requests that the Court order discovery to permit him to further develop

his claims of fraud on the court.6 Plaintiff cites to Pearson v. First NH Mortgage Corp.,

200 F.3d 30, 35 (1st Cir. 1999), for the proposition that the Court has the discretion to

permit discovery proceedings “once the record evidence demonstrates a ‘colorable’ claim

of fraud.” Plaintiff does not present a colorable claim, therefore discovery is denied.

“Colorable” is defined as “appearing to be true, valid, or right.” BLACK’S LAW

DICTIONARY 282 (8th ed. 2004). Plaintiff has so far presented only bare allegations and

evidence that points to the mere possibility of fraud on the court, but presents no evidence

5
The Reintjes court does imply that involvement of an officer of the court in perjury could constitute fraud
on the court even if the adverse party had the opportunity to cross-examine witnesses. 71 F.3d at 49.
Although plaintiff alleges perjury and submission of fraudulent documents by officers of the court, he fails
to provide clear and convincing evidence of intentionally or recklessly false statements or conduct.
Demjanjuk, 10 F.3d at 348.
6
Because plaintiff’s Rule 60(b)(3) claim of fraud or misrepresentation is untimely, discovery at this point
could only support a claim of fraud on the court.

15
that makes his claim “appear to be true.” Cf. Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 556–57 (2007) (bare allegations of parallel conduct and conspiracy are insufficient

to state a claim under the Sherman Act). To permit discovery now would be to subject

defendants to a costly and time-consuming process without an iota of rational

justification, and the Court will not engage in such an abuse.7

Plaintiff’s request for discovery is also undermined by the fact that many of his

claims revolve around issues that he should have addressed at or before trial. Plaintiff

was aware of a possible fraud as early as 2003. (Pl.’s Mot. for Relief [150] at 10–11.)

He had every opportunity before trial to engage in discovery to determine the existence of

fraud and to raise that issue with the Court. The defendants should not be subjected to

discovery when plaintiff failed to take advantage of that opportunity.

D. Leave to File Separate Independent Actions For Fraud Upon Other Courts

This Court does not have jurisdiction to grant or deny leave to request relief from

judgments rendered by other courts.

IV. Conclusion

For the foregoing reasons, the plaintiff’s Motion for Relief from Judgment [150]

and Motion for Discovery [159] will be DENIED.

A separate order shall issue this date.

7
Although plaintiff correctly states that “the law favors discovery and correction of corruption of the
judicial process even more than it requires an end to lawsuits” (Pl.’s Reply [161] at 3 (citing Lockwood v.
Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)), plaintiff appears to misunderstand the meaning of this
proposition. It refers to the absence of a time limit on filing a claim for fraud on the court, not to any
standard for permitting discovery.

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Date

January 6, 2010.

_____/s/_______________
ROYCE C. LAMBERTH
Chief Judge
United States District Court

17