Fix et al v. Union Pacific Railroad Company

Filing 139

ORDER denying 129 Motion to Set Aside Order of Dismissal. See order for details. Signed by Senior Judge Frederick J Martone on 3/30/2015.(LMR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Fix, et al.,
Plaintiffs,

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vs.

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Union Pacific Railroad Company,
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Defendant.
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No. CV-13-00083-PHX-FJM
ORDER

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In January 2013, Plaintiffs sued Union Pacific Railroad alleging that Union Pacific

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wrongfully closed a railroad crossing that provided the only access to their property in

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violation of their prescriptive easement. On April 22, 2014, we denied both parties’ motions

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for summary judgment and this case was set for trial (doc. 107). Five days before trial was

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scheduled to begin, the parties notified the court that they had “settled all claims set forth in

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the subject Complaint and Counterclaim,” and stipulated to the dismissal of the action with

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prejudice, each party to bear their owns costs and fees (doc. 127). Pursuant to the parties’

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stipulation, we entered an Order dismissing the action with prejudice back in May of 2014

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(doc. 128).

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Now before the court is Plaintiffs’ motion to set aside the Order of dismissal (doc.

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129), Union Pacific’s response (doc. 135), and Plaintiffs’ reply (doc. 138). Plaintiffs request

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that the Order be set aside due to (1) Union Pacific’s material misrepresentations and

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misconduct in connection with drafting the settlement agreement, and (2) Plaintiffs’ former

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counsel’s negligence in the performance of his duties by causing this matter to be dismissed

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with prejudice before a final, written settlement agreement was executed. Neither of these

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reasons supports a Rule 60(b), Fed. R. Civ. P., motion to set aside an order of dismissal.

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In order to prevail on a Rule 60(b)(3) motion, “the moving party must prove by clear

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and convincing evidence that the [order of dismissal] was obtained through fraud,

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misrepresentation, or other misconduct and the conduct complained of prevented the losing

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party from fully and fairly presenting the [case].” DeSaracho v. Custom Food Machinery,

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Inc., 206 F.3d 874, 880 (9th Cir. 2000). Plaintiffs have not demonstrated by clear and

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convincing evidence that the Order of dismissal was obtained by fraud, misrepresentation or

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other misconduct. Instead, the parties, each represented by counsel, chose to voluntarily

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dismiss the action based on their understanding of the key terms to be included in the final

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settlement agreement. Any subsequent disagreement between the parties as to the exact

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nature of those key terms does not amount to clear and convincing evidence of fraud,

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misrepresentation or misconduct.

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Either there was an accord which extinguished the underlying claims or there was not.

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If there was an accord, the claims no longer exist and setting aside the dismissal cannot

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revive them. The remedy for breach of the accord is a separate action against Union Pacific

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for breach of contract. If there was no accord, and Plaintiffs’ counsel stipulated to dismiss

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prematurely, the remedy is a malpractice action against counsel. There was no client

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abandonment here and thus no basis for relief under Rule 60(b)(6), Fed. R. Civ. P.
IT IS ORDERED DENYING Plaintiffs’ motion to set aside order of dismissal (doc

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129).
DATED this 30th day of March, 2015.

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