Thompson v. The Florida Bar

Filing 364

ORDER denying 362 Motion to Vacate and to Stay, Signed by Judge Adalberto Jordan on 11/29/07. (lh)

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Thompson v. The Florida Bar Doc. 364 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21256-CIV-JORDAN JOHN B. THOMPSON, ) ) Plaintiff, ) vs. ) ) THE FLORIDA BAR, et al., ) Defendants. ) ____________________________________ ) ORDER DENYING MOTION TO VACATE AND TO STAY Mr. Thompson's motion to vacate for fraud on the court and for a stay of the ongoing disciplinary proceedings [D.E. 362], treated as a motion under Rule 60(b), is DENIED . Mr. Thompson argues that the Bar failed to disclose that the current version of Florida Bar Rule 3-4.6 was not in effect when Mr. Thompson was practicing law in Alabama. He contends that this failure constitutes fraud on the court. I disagree. Fraud on the court "embrace[s] 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 cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." See Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007) (citing Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985)). In determining whether relief for fraud on the court is appropriate here, I need to consider to what extent the alleged fraud influenced the order of dismissal that Mr. Thompson seeks to vacate. See id. I conclude that Mr. Thompson's allegations, even if true, do not constitute fraud on the court as I did not rely on the current version of Rule 3-4.6(a) in the order of dismissal. Younger/Middlesex abstention was warranted because of the existence of a pending bar disciplinary proceeding, irrespective of the rules that Mr. Thompson was accused of violating. To the extent that Mr. Thompson has an ex post facto claim as to the current version of Rule 3-4.6(a), he can raise this claim before Referee Tunis and the Florida Supreme Court together with his other constitutional challenges. DONE and ORDERED in chambers in Miami, Florida, this 29th day of November, 2007. _________________________ Adalberto Jordan United States District Judge Copy to: All counsel of record

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