Cunningham v. Singer et al

Filing 138

ORDER DENYING MOTION FOR RECONSIDERATION by Hon. William Alsup [denying 137 Motion for Reconsideration]. (whasec, COURT STAFF) (Filed on 1/18/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ARCHIBALD CUNNINGHAM,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 14-03250 WHA

v.
KEVIN SINGER, et al.,

ORDER DENYING MOTION
FOR RECONSIDERATION

Defendants.
/
INTRODUCTION
Plaintiff moves for reconsideration of a prior order denying his motion to vacate
judgment for fraud on the court. Reconsideration is DENIED.
STATEMENT
Following a series of frivolous lawsuits and appeals in state court, plaintiff Archibald

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Cunningham, proceeding pro se, brought the instant action against defendants Kevin Singer,

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Michael Coombs, and John Scott McKay. His complaint included claims for civil rights

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violations, retaliatory eviction, and intentional infliction of emotional distress. A previous order

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granted defendants’ motion to dismiss and declared plaintiff a vexatious litigant. Judgment was

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entered against plaintiff on the same day. Plaintiff moved for reconsideration pursuant to

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Rule 59(e). That motion was denied. Plaintiff then moved to vacate the judgment for fraud on

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the court pursuant to Rule 60(d)(3). That motion, too, was denied. Now, two years after entry

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of judgment, plaintiff moves for reconsideration of the order denying his motion to vacate the

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judgment. After briefing closed, plaintiff submitted an amended motion. Since only the docket

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text differs, but the substance of the motion is unchanged, this order references only the original

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filing.

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ANALYSIS

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A motion for reconsideration under Rule 59(e) “should not be granted, absent highly

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unusual circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law.” Orange

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St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Plaintiff does not present any newly

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discovered evidence or intervening change in controlling law that would warrant reconsideration
of his motion to vacate the judgment against him. This motion boils down to plaintiff’s

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For the Northern District of California

United States District Court

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disagreement with a prior order denying his motion to vacate the judgment for fraud on the court.

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As stated in that order, fraud and “fraud on the court” are very different. Fraud on the

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court is a distinct species of fraud that must be shown by clear and convincing evidence

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and typically does not arise from “[m]ere nondisclosure of evidence,” “perjury by a party

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or witness,” or other mere fraud “connected with the presentation of a case to a court.”

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United States v. Estate of Stonehill, 660 F.3d 415, 443–44 (9th Cir. 2011). In determining

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whether fraud constitutes fraud on the court, the relevant inquiry is whether it harmed the

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integrity of the judicial process. Id. at 444.

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Plaintiff claims he sufficiently alleged fraud on the court and is therefore entitled to

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an evidentiary hearing to uncover the fraud, which not only Attorney John McKay and Receiver

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Kevin Stinger, but also — according to plaintiff — numerous judges are involved in (Compl.

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¶ 8).

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First, plaintiff did not present clear and convincing evidence of fraud on the court.

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This order reminds plaintiff — still a member of the State Bar — that legal conclusions are not

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evidence. For example, plaintiff claims his strongest argument for this motion is that the state

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court never litigated and adjudicated his eviction because his eviction occurred pursuant to a

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“fraudulently obtained EJ-130 writ” (Dkt. No. 135 at 6). Plaintiff’s conclusory assertion that

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the eviction occurred pursuant to a “fraudulently obtained EJ-130 writ” does not, however,

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constitute clear and convincing evidence of fraud on the court.

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Second, even if plaintiff had clearly and convincingly showed fraud on a state court,

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plaintiff fails to explain how fraud on a state court would entitle him to an evidentiary hearing

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or vacate a judgment against him in federal court.

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Despite plaintiff’s endless list of grievances, there is no clear and convincing evidence

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in the record supporting plaintiff’s claim of fraud on this Court. This order therefore declines

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to reconsider his motion to vacate the judgment. The Court has considered plaintiff’s other

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arguments and they do not disturb the outcome of this order.

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For the Northern District of California

United States District Court

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CONCLUSION
For the foregoing reasons, plaintiff’s motion is DENIED. Please, no further motions for
reconsideration will be entertained. Plaintiff’s next recourse is to the court of appeals.

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IT IS SO ORDERED.

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Dated: January 17, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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