McHaffie v. Wells Fargo Bank NA et al

Filing 31

ORDER denying 25 Motion to Set Aside Judgment. Ordered by Judge Clay D. Land on 03/08/2012 (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
RACHEL LEIGH McHAFFIE,

*

Plaintiff,

*

vs.

*
CASE NO. 3:10-CV-103 (CDL)

WELLS FARGO BANK N.A.,
*
JOHN STUMPF, HOWARD I. ATKINS,
McCALLA RAYMER LLC,
*
TONYA NOLAN, and MELODY R.
JONES,
*
Defendants.

*
O R D E R

Presently
McHaffie’s

pending

before

(“Plaintiff”)

the

Motion

Court

to

Set

is

Plaintiff

Aside

the

Rachel

Judgment

previously entered by the Court in this action (ECF No. 25).
For the following reasons, Plaintiff’s motion is denied.
DISCUSSION
Plaintiff claims the judgment should be set aside under
Federal Rule of Civil Procedure 60(b)(4) because the judgment is
void.
Court

Federal Rule of Civil Procedure 60(b) provides that the
may

relieve

a

party

from

a

final

judgment

for

following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b); (3)
fraud
(whether
previously
called
intrinsic
or
extrinsic), misrepresentation, or misconduct by an

the

opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6).
Plaintiff argues the judgment is void because the Court
lacks subject matter jurisdiction over the action.
however,

previously

rejected

Plaintiff’s

The Court,

contention

that

Court lacks subject matter jurisdiction over her claims.

the
See

McHaffie v. Wells Fargo Bank, N.A., No. 3:10-CV-103 (CDL), 2011
WL 2173847, at *2 (M.D. Ga. June 6, 2011) [hereinafter Summ. J.
Order];

McHaffie

v.

(CDL),

2011

2174407,

WL

Wells

Fargo
at

Bank,

*2

(M.D.

[hereinafter Mot. to Dismiss Order].
motion

alters

the

Court’s

N.A.,

previous

Ga.

No.

3:10-CV-103

June

6,

2011)

Nothing in Plaintiff’s
conclusion,

and

thus

the

Court finds the judgment is not void for lack of subject matter
jurisdiction.
Plaintiff

further

contends

that

the

judgment

is

void

because the Court does not have personal jurisdiction over her.
Plaintiff claims that she is not an employee of the federal
government or any of its state divisions or subdivisions.

As

employment with the federal government or its state divisions or
subdivisions is not a requirement for the Court to have personal
jurisdiction over Plaintiff, the Court concludes the judgment is

2

not void for this reason.

Plaintiff also appears to reassert

her claim that the action was not removable because she did not
consent to removal, but the Court has already determined that
her consent was not required for removal.

See Summary Judgment

Order, 2011 WL 2173847, at *2; Mot. to Dismiss Order, 2011 WL
2174407, at *2.

Therefore, the Court finds that the judgment is

not void based on Plaintiff’s failure to consent to removal.
Plaintiff also claims that Defendants committed fraud on
the Court.

The Court construes this claim as an argument under

Rule 60(b)(3).
judgment

for

extrinsic),
party.”

Under Rule 60(b)(3), the Court may set aside the
“fraud

(whether

misrepresentation,

previously
or

Fed. R. Civ. P. 60(b)(3).

called

misconduct

by

intrinsic
an

or

opposing

In support of her argument,

Plaintiff submitted proof of service of process on Defendants
Wells Fargo Bank, N.A. (“Wells Fargo”) and McCalla Raymer LLC
(“McCalla Raymer”) by sheriff’s service.

See Pl.’s Mot. to Set

Aside Attach. 2 at 4, Sheriff’s Entry of Service for McCalla
Raymer LLC, ECF No. 25-2 at 4 of 5; Pl.’s Mot. to Set Aside
Attach. 2 at 5, Sheriff’s Entry of Service for Wells Fargo Bank,
N.A., ECF No. 25-2 at 5 of 5.

The Court dismissed Plaintiff’s

claims against Wells Fargo, McCalla Raymer, John Stumpf, Howard
Atkins, and Melody Jones because the record at the time of the
Court’s

ruling

failed

to

establish

sufficiently served with process.

3

that

they

had

been

Mot. to Dismiss Order, 2011

WL 2174407, at *3.

Although it now appears McCalla Raymer and

Wells Fargo had in fact been served, “[o]nly the most egregious
misconduct, such as bribery of a judge or members of a jury, or
the fabrication of evidence by a party in which an attorney is
implicated, will constitute a fraud on the court.”
United

States,

curiam).

285

F.

Accordingly,

App’x

737,

“[l]ess

738

(11th

egregious

Stoecklin v.

Cir.

2008)

misconduct,

(per

such

as

nondisclosure to the court of facts allegedly pertinent to the
matter before it, will not ordinarily rise to the level of fraud
on

the

court.”

Defendants’

Id.

The

(particularly

Court,

Wells

therefore,

Fargo)

failure

finds
to

that

disclose

service by the sheriff’s office is not sufficiently egregious to
constitute fraud on the Court.

Further, Plaintiff was required

to file this proof of service with the Court.

Fed. R. Civ. P.

4(l)(1); see also White v. Ams. Servicing Co., No. 11-13101,
2012 WL 280723, at *1 (11th Cir. Feb. 1, 2012) (per curiam)
(“The

plaintiff

submitting

the

must

make

server’s

proof

of

service

affidavit.”).

to

Although

the

court

Wells

by

Fargo

filed a motion to dismiss asserting insufficient service and the
Court ordered Plaintiff to show cause for her failure to serve
McCalla Raymer, Plaintiff failed to file the proof of service
despite

this

notice

and

opportunity

to

do

so.

The

Court

concludes that the judgment should not be set aside based on the
newly submitted proof of service for Wells Fargo and McCalla

4

Raymer because Plaintiff had ample opportunity to file the proof
of service prior to the entry of the judgment.
Finally, the Court concludes that the judgment is not void
for violating Plaintiff’s constitutional right to due process.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion to Set Aside
(ECF No. 25) is denied.
IT IS SO ORDERED, this 8th day of March, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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