1:08-cv-00064 | S.D. Ind. | Aug 22, 2008

Case 1:08-cv-00064-SEB-JMS Document 48 Filed 08/22/08 Page 1 of 2 PageID #: 348


KEVIN MCCARTHY, et al., ) ) Plaintiffs, ) vs. ) 1:08-cv-64-SEB-JMS ) PATRICIA ANN FULLER, et al., ) ) Defendants. ) Entry Discussing Motion to Vacate This action was closed on March 26, 2008, based on the notice of dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure filed on March 24, 2008. This disposition has been followed with defendant Patricia Ann Fuller’s motion to vacate filed on August 6, 2008 (dkt 42).

“Rule 60 of the FED. R. CIV. P. regulates the procedure for obtaining relief from final judgments.” Arrieta v. Battaglia , 461 F.3d 861" date_filed="2006-08-24" court="7th Cir." case_name="Joseph Arrieta v. Deirdre Battaglia, Warden">461 F.3d 861, 864 (7th Cir. 2006)(citing Wesco Prods. Co. v. Alloy Auto. Co., 880 F.2d 981" date_filed="1989-09-06" court="7th Cir." case_name="Wesco Products Co. And Donald Horwitz v. Alloy Automotive Co., and Continental Illinois National Bank & Trust Co.">880 F.2d 981, 983 (7th Cir. 1989)).

"A Rule 60(b) motion permits relief from judgment [only] when it is based on one of six specific grounds listed in the rule." Talano v. Northwestern Med. Faculty Found., 273 F.3d 757, 762 (7th Cir. 2001). A motion for relief from judgment pursuant to Rule 60(b) permits a party to seek relief from judgment on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, and fraud. American Federation of Grain Millers, Local 24 v. Cargill Inc., 15 F.3d 726" date_filed="1994-02-04" court="7th Cir." case_name="American Federation of Grain Millers, Local 24 v. Cargill Incorporated and Pillsbury Company">15 F.3d 726, 728 (7th Cir. 1994). It also authorizes relief for "any other reason justifying relief from the operation of the judgment." Rule 60(b), F.R.Civ.P.

Fuller’s motion to vacate is based upon the contention that the plaintiffs perpetrated a fraud on the court or the filing of this action, and in particular through the inclusion of the allegation in Count V of the complaint. Fraud is among the enumerated grounds upon which relief can be granted from judgment pursuant to Rule 60(b)(3).

“In order to obtain relief under Rule 60(b)(3), the movant must prove that: (1) the party maintained a meritorious claim at trial; and (2) because of the fraud, misrepresentation or misconduct of the adverse party; (3) the party was prevented from fully and fairly presenting its case at trial.” Lonsdorf v. Seefeldt, 47 F.3d 893" date_filed="1995-02-15" court="7th Cir." case_name="Janeen O. Lonsdorf v. Ted Seefeldt, Jim Jenkins, Roger Johnson, Jerry Pionkowski, Jack Deyong, Group Health Cooperative, Hmo">47 F.3d 893, 897 (7th Cir. 1995). Fuller’s Rule 60(b) motion asserts only that she had tendered payment to the plaintiffs prior to this action being filed, and therefore would have had a valid defense to the claim asserted in Count V of the complaint. _______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana

Case 1:08-cv-00064-SEB-JMS Document 48 Filed 08/22/08 Page 2 of 2 PageID #: 349 Here, the only action which prevented Fuller from successfully defending the claim in Count V of the complaint is that the plaintiff voluntarily dismissed the action. This action cannot in any reasonable sense be understood as misrepresentation or misconduct by the plaintiffs. Fuller’s motion to vacate on the basis of fraud must therefore be denied. That motion, in fact, more closely approaches a request for sanctions under Rule 11 of the Federal Rules of Civil Procedure , but that is not the manner in which she has presented the matter and at the time such a request would be untimely.

The Seventh Circuit has long recognized that there is a strong judicial policy favoring finality of judgments. See Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826 (7th Cir. 1985). Relief from judgment under Rule 60 is an extraordinary remedy which should be granted only in exceptional circumstances. Del Carmen v. Emerson Electric Co., 908 F.2d 158, 161 (7th Cir. 1990). Such relief is warranted "only upon a showing of extraordinary circumstances that create substantial danger that the underlying judgment was unjust." Margoles v. Johns, 798 F.2d 1069" date_filed="1986-08-20" court="7th Cir." case_name="Dr. Milton Margoles v. Alida Johns and the Journal Company, a Corporation">798 F.2d 1069, 1073 (7th Cir. 1986). For the reasons explained above, those circumstances are not present here. Because the grounds on which Fuller seeks relief do not support relief under Rule 60(b), the motion to vacate (dkt. 42) is denied.

IT IS SO ORDERED . 08/22/2008

Date: Distribution: Henry J. Price PRICE WAICUKAUSKI & RILEY Bradley M. Stohry

ICE MILLER LLP Michael A. Swift

ICE MILLER LLP Patricia Ann Fuller a/k/a Sister Joseph Therese 700 North Susan Drive Fostoria, OH 44830