Mendy Properties L.C. et al v. Rhodes Life Insurance Company et al

Filing 90

ORDER AND REASONS denying 76 MOTION to Reopen Case. Signed by Judge Lance M Africk on 12/21/2016.(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MENDY PROPERTIES L.C. ET AL

CIVIL ACTION

VERSUS

No. 09-6302

RHODES LIFE INSURANCE CO. ET AL

SECTION I

ORDER AND REASONS
Plaintiffs Mendy Properties, L.C., Edward Mendy, and Cheryl Mendy move 1 to
reopen this six-year old case pursuant to Rules 60(b)(6) and 60(d)(3) of the Federal
Rules of Civil Procedure. Plaintiffs argue that they just recently obtained documents
showing that defendants committed a fraud on them and the Court by failing to
disclose, during settlement proceedings in front of a court-appointed accountant, a
$100,000 payment from a title company to defendants on behalf of plaintiffs.
Plaintiffs further allege that the supposed fraud resulted in the accountant’s report
being off by $100,000. R. Doc. No. 76-1, at 4. Defendants counter that their records
indicate that the funds at issue were received but then subsequently transferred by
them to another title agency for use in another transaction by the Mendy family. See
R. Doc. Nos. 89, 89-2.
Regardless of which story is correct, plaintiffs do not justify reopening this
matter. To reopen a matter for fraud on the court pursuant to Rule 60(d)(3) of the
Federal Rules of Civil Procedure, there must be “a material subversion of the legal

1

R. Doc. No. 76.

process” that “could not have been exposed within the one-year window provided by
what is now Rule 60(c).” Jackson v. Thaler, 348 F. App’x 29, 34-35 (5th Cir. 2009).
Plaintiffs do not persuade the Court that they could not have discovered the supposed
“fraud” until 2016. Not only do plaintiffs appear to have obtained the supposedly
missing evidence in a friendly email from the title company in 2016, see R. Doc. No.
76-4, at 1, but also plaintiffs should have had a record of the money transfer the whole
time.

After all, the transfer was made in their name and presumably at their

instruction. Further, as plaintiffs do not allege that both the title company and
Whitney Bank were knowing accomplices to the fraud, plaintiffs also do not explain
how they could not have obtained the records that they present now with a few wellaimed subpoenas. Accordingly, plaintiffs cannot demonstrate entitlement to relief
under Rule 60(d)(3). See, e.g., Fantroy v. First Fin. Bank, N.A., No. 12-82, 2015 WL
5178398, at *4 (N.D. Tex. 2015). 2
The same is true of plaintiffs’ request for relief pursuant to Rule 60(b)(6) of the
Federal Rules of Civil Procedure. To obtain relief under Rule 60(b)(6), plaintiffs must
demonstrate (1) “extraordinary circumstances,” Gonzalez v. Crosby, 545 U.S. 524, 534

In the alternative, plaintiffs—who have the burden of demonstrating entitlement to
relief under Rule 60(d)(3), see King v. First Am. Investigations, Inc., 287 F.3d 91, 95
(2d Cir. 2002)—do not show that an officer of the court knowingly participated in the
alleged fraud. Therefore, plaintiffs do not meet the standard for obtaining relief for
fraud on the court pursuant to Rule 60(d)(3), which requires more than just an
incorrect statement by an officer of the court before relief is proper. See, e.g., Williams
v. Cain, No. 04-2187, 2011 WL 2417108, at *3 (E.D. La. 2011) (“[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
fraud on the court.” (emphasis added) (internal quotation marks omitted)).
2

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(2005), and (2) that the motion for relief was “made within a reasonable time,” Fed R.
Civ. P. 60(c)(1). Plaintiffs’ lack of diligence in record keeping and pursuing seemingly
otherwise available information hardly demonstrates the sort of circumstances that
justify reopening a judgment. See, e.g., Gov’t Fin. Servs. One Ltd. P’ship v. Peyton
Place, Inc., 62 F.3d 767, 774 (5th Cir. 1995).
Accordingly,
IT IS ORDERED that plaintiffs’ motion is DENIED.
New Orleans, Louisiana, December 21, 2016

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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