Gaddis v. Union Pacific Railroad

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III
Clerk
No. 05-30006
Summary Calendar

FREDDIE C. GADDIS,

Plaintiff-Appellant,

versus

UNION PACIFIC RAILROAD CO.,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:04-CV-1222

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Freddie C. Gaddis, proceeding pro se here and below, has

appealed the district court’s order denying his motion for relief,

under FED. R. CIV. P. 60(b), from the district court’s judgment

dismissing his complaint seeking relief under the Federal Employers

Liability Act.

*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 Gaddis, proceeding pro se, filed his suit in May 1996 in

respect to injuries he allegedly received in July 1977. Union

Pacific Railroad Co., successor by merger to the named defendant

Missouri Pacific Railroad Co., moved for summary judgment on the

basis that Gaddis’s claim was barred by limitations. The district

court granted the motion for summary judgment and dismissed

Gaddis’s suit with prejudice. Gaddis timely appealed to this

court, but thereafter, in April 1998, this court dismissed his

appeal for want of prosecution.

Gaddis’s instant Rule 60(b) motion was filed in June 2004. In

that motion Gaddis claims that the defendant fraudulently “duped”

him into not responding to its limitations-based motion for summary

judgment by telling him that the court “was not going to grant” the

motion.

Gaddis does not argue on appeal that the district court erred

in treating his pleading as a motion pursuant to Rule 60(b), rather

than as an independent action asserting fraud on the court pursuant

to the savings clause of Rule 60(b). See FED. R. CIV. P. 60(b);

Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.

1989).

To the extent that Gaddis sought relief based on fraud, under

FED. R. CIV. P. 60(b)(3), the motion was untimely. To the extent

that he sought relief based on a void judgment, under FED. R. CIV.

P. 60(b)(4), Gaddis has not shown that the district court acted

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“outside its legal powers.” Carter v. Fenner, 136 F.3d 1000, 1005

(5th Cir. 1998).

Because the appeal is without arguable merit, it is DISMISSED

AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983); 5TH CIR. R. 42.2.

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