Usher v. Greenpoint Mortgage Funding, Inc. et al

Filing 58

ORDER signed by District Judge Garland E. Burrell, Jr on 3/30/16: Plaintiff's motion to vacate the February 2, 2011, judgment is denied. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND USHER,

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Plaintiff,

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No. 2:10-cv-00952-GEB-CKD

v.
GREENPOINT MORTGAGE FUNDING,
INC.; RELIABLE TRUST DEED
SERVICES; and VANDERBILT
MORTGAGE & FINANCE, INC.,

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ORDER DENYING PLAINTIFF’S MOTION
TO VACATE JUDGMENT

Defendants.

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On December 29, 2015, almost four years after judgment

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was entered in this action, Plaintiff filed a motion to vacate

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the judgment entered on February 2, 2011.1 (ECF Nos. 31, 37.)

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Plaintiff

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Federal Rule of Civil Procedure (“Rule”) 60(b)(3) authorizes the

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vacation of the judgment because Defendants GreenPoint Mortgage

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Funding,

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Mortgage & Finance, Inc. (collectively, “Defendants”) concealed,

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or failed to disclose, the identities of proposed new defendants

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Plaintiff now seeks to add as defendants in this closed lawsuit,

makes

Inc.,

the

conclusory

Reliable

Trust

argument

Deed

in

his

Services,

motion

and

that

Vanderbilt

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Plaintiff also seeks judicial notice of numerous documents, (ECF
No. 39); Plaintiff, however, has not shown the relevancy of the referenced
documents to the motion sub judice; therefore, the request for judicial notice
is declined. See Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022,
1025 n.2 (9th Cir. 2006) (“We decline to take judicial notice of the . . .
[documents], as they are not relevant to the resolution of this appeal.”).

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contending that they were previously involved with the mortgage

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note of his former home that has been sold. (See ECF No. 37 at 4

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¶ 1; ECF No. 40 at 5:10–12.) Specifically, Plaintiff argues that

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Defendants should have provided Plaintiff with the identities of

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the proposed new defendants before judgment was entered in this

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action;

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should be authorized to add the referenced new defendants in an

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amended complaint. (ECF No. 37 at 3:18–28.) Defendants oppose, in

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essence arguing that they were not required to provide Plaintiff

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therefore,

judgment

should

be

vacated,

and

Plaintiff

the information he references.2

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The

provision

of

Rule

60

applicable

to

the

relief

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Plaintiff seeks is Rule 60(b)(3). Concerning Rule 60(b)(3), Rule

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60(c)(1) provides in pertinent part: “A motion under Rule 60(b)

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must be made within a reasonable time—and . . . no more than a

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year after the entry of the judgment or order or the date of the

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proceeding.”

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untimely under Rule 60(c)(1). However, Plaintiff argues judgment

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may be set aside after the one-year deadline in Rule 60(c)(1)

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since there has been a “fraud on the court.” (ECF No. 37 at 2:22–

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26.)

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R.

Civ.

P.

60(c)(1).

Plaintiff’s

motion

[Rule] 60(b) preserves the district court’s
right to hear an independent action to set
aside a judgment for fraud on the court. An
independent action to set aside a judgment
for fraud on the court is “reserved for those
cases
of
injustices
which,
in
certain
instances, are deemed sufficiently gross to
demand a departure from rigid adherence to
the
doctrine
of
res
judicata.”
“[A]n

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Fed.

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Lastly, Plaintiff filed motions to strike Defendants’ briefs that
respond to Plaintiff’s motions. (ECF Nos. 51-52.) Defendant GreenPoint
Mortgage Funding, Inc. opposes Plaintiff’s motion to strike. (ECF No. 56.)
Plaintiff’s motions to strike Defendants’ response briefs are denied, since
Plaintiff has not provided sufficient authority supporting those motions.

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is

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independent action should be available only
to prevent a grave miscarriage of justice.”

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Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th

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Cir. 2003) (second alteration in original) (citations omitted)

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(quoting United States v. Beggerly, 524 U.S. 38, 46–47 (1998)).

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The Ninth Circuit has explained:

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“Fraud upon the court” should, we believe,
embrace only that species of fraud which does
or attempts to, defile the court itself, or
is a fraud perpetrated by officers of the
court so that the judicial machinery can not
perform in the usual manner its impartial
task of adjudging cases that are presented
for adjudication.

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In re Levander, 180 F.3d 1114, 1119 (9th Cir. 1999). “Generally,

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non-disclosure [of evidence] by itself does not constitute fraud

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on the court.” Id.
Plaintiff

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has

not

shown

that

Defendants

had

an

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affirmative obligation to disclose the information he references

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in his motion, nor that the fraud on the court doctrine applies

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to the situation about which he complains.
Therefore, Plaintiff’s motion to vacate the February 2,

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2011, judgment is denied.

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Dated:

March 30, 2016

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