[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 7, 2008
No. 08-10543 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 89-00182-CV-OC-10-GRJ
KENNETH A. STOECKLIN,
Plaintiff-Counter-Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Counter-Claimant-Cross-Claimant-Third-
Party Plaintiff-Appellee,
INTERNAL REVENUE SERVICE,
Defendant,
A.B. PHILLIPS, in his individual capacity,
DAVID B. QUINN, in his individual capacity,
Counter-Defendants,
K. WAYNE STOECKLIN,
HELEN R. STOECKLIN,
Cross-Defendants-Third-Party
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 7, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Kenneth A. Stoecklin, proceeding pro se, appeals the district
court’s order denying his motion to vacate its order granting the government’s
cross-motion for summary judgment in an action to set aside Stoecklin’s fraudulent
conveyance of property, reclaim his unpaid tax liability, and sell the property to
satisfy the unpaid tax liability under 26 U.S.C. § 7402. On appeal, Stoecklin
argues that the district court erred in denying his Fed.R.Civ.P. 60(b) motion to
vacate because the government and the county recorder conspired to record
fraudulently the federal tax liens on his property without proper certification.
Normally, we review a district court’s denial of a Fed.R.Civ.P. 60(b) motion
for an abuse of discretion. Turner v. Sec’y of Air Force, 944 F.2d 804, 807 (11th
2
Cir. 1991). Under Fed.R.Civ.P. 60(b), “the court may relieve a party or its legal
representative from a final judgment, order, or proceeding” because of, inter alia,
“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party.” Fed.R.Civ.P. 60(b)(3). “This rule does not
limit a court’s power to . . . set aside a judgment for fraud on the court.”
Fed.R.Civ.P. 60(d). “[O]nly 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 a fraud on the court.” Rozier v. Ford Motor
Co., 573 F.2d 1332, 1338 (5th Cir. 1978).1 “Less egregious misconduct, such as
nondisclosure to the court of facts allegedly pertinent to the matter before it, will
not ordinarily rise to the level of fraud on the court.” Id. Thus, “it is necessary to
show an unconscionable plan or scheme which is designed to improperly influence
the court in its decision.” Id. (citation omitted).
Motions under Fed.R.Civ.P. 60(b) must be brought “within a reasonable
time,” and a motion under Fed.R.Civ.P. 60(b)(1), (2), or (3) must be filed “no more
than a year after the entry of the judgment or order or the date of the proceeding.”
Fed.R.Civ.P. 60(c)(1). An independent action for “fraud on the court” under
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
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Fed.R.Civ.P. 60(d) may be brought at any time. Rozier, 573 F.2d at 1337-38.
Because the record demonstrates that Stoecklin filed his Fed.R.Civ.P.
60(b)(3) motion nearly 12 years after the district court’s order granting summary
judgment in favor of the government, we conclude that it was not timely filed
under Fed.R.Civ.P. 60(c)(1). Accordingly, we affirm the district court’s order
denying Stoecklin’s Fed.R.Civ.P. 60(b)(3) motion to vacate.
AFFIRMED.
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