Case: 20-20566 Document: 00515907635 Page: 1 Date Filed: 06/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-20566 June 21, 2021
Summary Calendar Lyle W. Cayce
Clerk
Candace Louise Curtis,
Plaintiff—Appellant,
versus
Anita Kay Brunsting; Amy Ruth Brunsting,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-592
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Candace Louise Curtis, acting pro se, appeals from the district court’s
denial of her motion for relief from two district court orders entered in May
2014. We AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20566 Document: 00515907635 Page: 2 Date Filed: 06/21/2021
No. 20-20566
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, Curtis filed a pro se complaint in federal court against her
sisters, Anita Kay Brunsting and Amy Ruth Brunsting, concerning their
administration of the Brunsting Family Living Trust. The complaint sought
damages, a temporary restraining order, and an injunction to protect trust
assets. The district court dismissed the case sua sponte under the probate
exception to diversity jurisdiction. A panel of this court reversed and
remanded. See Curtis v. Brunsting, 704 F.3d 406 (5th Cir. 2013). Following
remand, the district court entered a preliminary injunction requiring the
trustees to provide an accounting of trust assets and to obtain court approval
of transactions regarding trust assets, among other things.
In May 2013, still acting pro se, Curtis filed an amended complaint
without leave of court. She also requested the involuntary joinder of her
brother, Carl Brunsting, as a co-plaintiff. She sought to have the federal court
order the joinder of Carl’s related pending state-court action. The district
court struck Curtis’s amended complaint and denied the request for joinder
of parties and claims. Later that year, the district court ordered Curtis to
retain counsel.
After retaining counsel, Curtis filed two motions that led to the court
orders from which she now seeks relief. In May 2014, on Curtis’s behalf, her
counsel filed a motion for leave to file an amended complaint. The amended
complaint would add her brother, Carl, as a necessary party and involuntary
co-plaintiff, even though doing so would destroy complete diversity.
Expecting a lack of diversity, Curtis’s counsel simultaneously filed a “motion
to remand” the case to Texas’s Harris County Probate Court Number Four
so that the case could be consolidated with Carl’s pending lawsuit in Texas
state court.
2
Case: 20-20566 Document: 00515907635 Page: 3 Date Filed: 06/21/2021
No. 20-20566
On May 15, 2014, the district court granted leave to file the amended
complaint. It also granted the purported motion to remand, reasoning that
the lack of complete diversity and the need to avoid inconsistent judgments
in related lawsuits warranted remand and consolidation. The Harris County
Probate Court accepted the “remand,” and later consolidated the lawsuits,
About two years later and after discharging her counsel, Curtis began
a pro se effort to obtain relief from the orders and reinstate her federal case.
On August 3, 2016, she filed a motion for relief based on Federal Rule of Civil
Procedure 60(b)(3), 60(b)(6), and 60(d)(3). She argued that the defendants
perpetrated a fraud on the court by agreeing to the remand and then refusing
to honor the federal injunction and other orders of the federal district court.
She also accused her former counsel of seeking remand “to obstruct justice
in pursuit of attorney fees.” In essence, she asked the district court to
reinstate the federal case. The court took no action on the motion.
More than two years later, in March 2019, Curtis sought to have the
defendants and their counsel held in contempt for violating the federal
injunction. The district court held a telephonic hearing and entered an order
denying Curtis’s show-cause motion. The district court explained that it was
“of the opinion that, having transferred the case to Harris County Probate
Court, it no longer ha[d] jurisdiction of the case.” Curtis did not appeal from
that order.
On July 17, 2020, after hiring a new attorney, Curtis filed another
motion seeking relief from the district court’s 2014 amendment and remand
orders, this time relying only on Rule 60(b)(6) and Rule 60(d)(3). In that
motion, Curtis argued that her own prior counsel’s conduct, including
pursuing amendment and remand, constituted a fraud on the court. She
again asked the court to reinstate the federal case. Then, on August 28, 2020,
Curtis filed an emergency motion to reopen the case.
3
Case: 20-20566 Document: 00515907635 Page: 4 Date Filed: 06/21/2021
No. 20-20566
The district court conducted a telephonic hearing and reopened the
case for the limited purpose of considering Curtis’s July 2020 motion for
relief. The district court denied the motion for several reasons, including:
(1) her request was untimely; (2) her prior counsel’s conduct does not
amount to a fraud on the court; (3) the transfer/remand was permissible; and
(4) the district court ceded jurisdiction over the case to the Texas state court.
This appeal followed.1
DISCUSSION
We review the district court’s denial of Curtis’s request for relief
under Rule 60(b)(6) and Rule 60(d)(3) for abuse of discretion. Wilson v.
Johns-Manville Sales Corp., 873 F.2d 869, 871 (5th Cir. 1989).2 We will
separately address those two subsections of Rule 60.
I. Rule 60(b)(6)
Rule 60(b) lists several grounds upon which a “final judgment, order,
or proceeding” may be set aside. Subsections one through five are specific,
while subsection six is a general clause permitting relief for other valid
grounds. Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).
“On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for . . . any other
1
The attorney who represented Curtis in 2020 is no longer participating in this
case, and Curtis is proceeding pro se in this appeal.
2
A Rule 60(d)(3) motion is subject to the same standard of review as a Rule 60(b)
motion. Haskett v. W. Land Servs., Inc., 761 F. App’x 293, 295 & n.1 (5th Cir. 2019). The
“fraud on the court” provision was formerly under Rule 60(b), but a 2007 amendment to
the Federal Rules of Civil Procedure moved the provision to Rule 60(d). The change was
“stylistic only.” Id. at 295 n.1 (quoting Fed. R. Civ. P. 60 advisory committee’s notes
to the 2007 amendment).
4
Case: 20-20566 Document: 00515907635 Page: 5 Date Filed: 06/21/2021
No. 20-20566
reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “This Court has
consistently held that relief under 60(b)(6) is mutually exclusive from relief
available under [sub]sections (1)–(5).” Hesling v. CSX Transp., Inc., 396 F.3d
632, 643 (5th Cir. 2005). This means that “[t]he reason for relief set forth”
in the other subsections of Rule 60(b) “cannot be the basis for relief under
Rule 60(b)(6).” Hess v. Cockrell, 281 F.3d 212, 215 (5th Cir. 2002) (quotation
marks and citation omitted). Accordingly, “[r]elief under this [sub]section
is granted only if extraordinary circumstances are present” and those
circumstances are not covered by another Rule 60(b) ground. Hesling, 396
F.3d at 642 (citation omitted) (first alteration in original). A Rule 60(b)(6)
motion must be made “within a reasonable time.” Fed. R. Civ. P.
60(c)(1).
Curtis’s July 2020 motion alleged that “[t]he ground for this petition
is fraud upon the court.” The motion explained that “[t]he misconduct upon
which this petition for relief is based is not merely an unconscionable plan
preventing [Curtis] from fully and fairly litigating her case, but a willful and
callous scheme designed to improperly influence the court in its decision.”
To the extent Curtis’s current claim is of fraudulent conduct by the
defendants, as her 2016 motion alleged, Rule 60(b)(6) is not a basis for relief
because, as we discuss in the next section of this opinion, claims of fraud are
explicitly covered by Rule 60(b)(3) and Rule 60(d)(3). See Hess, 281 F.3d at
215–16.
Curtis’s July 2020 motion also contended that the district court’s
remand order is “void as a matter of law.” Rule 60(b)(6) is not a basis for
relief for that assertion because Rule 60(b)(4) specifically provides for relief
when a judgment is void. See id.
All that is left is the conduct of Curtis’s prior counsel. Regardless of
the merits of the underlying claim, which we do not decide, the district court
5
Case: 20-20566 Document: 00515907635 Page: 6 Date Filed: 06/21/2021
No. 20-20566
did not abuse its discretion in concluding that her request for relief was not
brought within a reasonable time, as is required by Rule 60(c)(1). As the
district court explained, Curtis “had knowledge of (or a means to discover)
the complained[-]of activities” as early as 2014 yet waited more than two
years to request relief initially.
The district court did not abuse its discretion by denying Curtis’s
request for relief under Rule 60(b)(6).
II. Rule 60(d)(3)
Curtis also seeks relief under Rule 60(d)(3), which allows the court to
“set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3).
A request for Rule 60(d)(3) relief is “not subject to any time limitation.”
Rozier v. Ford Motor Co., 573 F.2d 1332, 1337–38 (5th Cir. 1978). “Generally
speaking, only the most egregious misconduct, such as bribery of a judge or
members of a jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute fraud on the court.” Id. at 1338
(citation omitted). “[I]t is necessary to show an unconscionable plan or
scheme which is designed to improperly influence the court in its decision.”
Id. (citation omitted).
Curtis’s prior counsel sought to add Curtis’s brother as a co-plaintiff
and consolidate the two lawsuits in Texas state court. Curtis tried to
accomplish almost the same thing one year earlier when acting pro se; in 2013,
she filed an amended complaint, and then sought to add her brother as a co-
plaintiff and consolidate the two cases in federal court. Although her
counsel’s post “remand” performance might not have been satisfactory to
Curtis, she has not shown that her prior counsel asked for the amendment
and remand in an “unconscionable plan . . . to improperly influence the court
in its decision.” Id. The district court’s denial of Curtis’s request for relief
from the amendment and remand orders was not an abuse of discretion.
6
Case: 20-20566 Document: 00515907635 Page: 7 Date Filed: 06/21/2021
No. 20-20566
* * *
It is true that in 2014, the district court should have dismissed without
prejudice instead of ordering a remand to state court. Nevertheless, the court
did exactly what Curtis’s attorney requested. Further, the district court’s
amendment and remand orders resulted in further proceedings in state court,
allowing the case to proceed in the same manner as would have occurred after
a proper dismissal without prejudice.
Curtis has not met her burden of proving fraud on the court, and the
court did not abuse its discretion by declining to vacate these orders for any
other reason.
AFFIRMED.
7