COUSINS et al v. HIGGINS et al

Filing 98

ORDER ON MOTION FOR RELIEF FROM JUDGMENT denying 95 MOTION for Relief from Judgment, MOTION for Oral Argument/Hearing By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROBERT L. COUSINS
COUSINS,

AND

JUDY A.

PLAINTIFFS
V.

KEITH HIGGINS, HEATH HIGGINS,
TADD JEWETT, MATTHEW
TETREAULT, MATTHEW LINDSLEY,
COLTON SANBORN, SAMUEL
CHISHOLM, AND TOWN OF
TREMONT,
DEFENDANTS

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL NO. 1:14-CV-515-DBH

ORDER ON MOTION FOR RELIEF FROM JUDGMENT
The motion for relief from judgment under Fed. R. Civ. P. 60(b) and hearing
request are DENIED. The First Circuit states that a necessary element for relief
under Fed. R. Civ. P. 60(b)(3) is that the alleged misconduct “substantially
interfere[ ] with [the plaintiffs’] ability fully and fairly to prepare for, and proceed
at, trial.” Roger Edwards, LLC v. Fiddes & Son Ltd., 427 F.3d 129, 134 (1st Cir.
2005). I apply that same requirement to a case like this that is resolved on
summary judgment.1 All the arguments the plaintiffs make in their motion for

1 The motion cites Fed. R. Civ. P. 60(b)(3) (fraud, misrepresentation, or misconduct), (b)(6) (any
other reason that justifies relief), and (d)(3) (fraud on the court). Roger Edwards demonstrates
that (b)(3)’s fraud standard and (d)(3)’s fraud on the court standard are not satisfied. The
plaintiffs do not show how they satisfy the catch-all provision of (b)(6), for which the leading
cases generally require “exceptional or extraordinary circumstances,” 11 Charles Alan Wright,
Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure (hereinafter, “Wright & Miller”)
§ 2857, p. 326 (2012); see also Ackermann v. U.S., 340 U.S. 193 (1950); Klapprott v. U.S., 335

relief were available to them at the time they responded to the defendants’ motion
for summary judgment and later objected to the Magistrate Judge’s
Recommended Decision in the defendants’ favor.2 Their motion raises nothing
that could not have been addressed earlier.3 Instead, it is a late attempt to
relitigate the motion for summary judgment.4

Following Commonwealth of

Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979), I DENY the
motion now, while the plaintiff’s appeal to the First Circuit is pending.
SO ORDERED.
DATED THIS 23RD DAY OF OCTOBER, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

U.S. 601, 613-614 (1949). Most often a successful (b)(6) motion involves “fail[ing] to receive
notice of the entry of judgment in time to file an appeal,” 11 Wright & Miller § 2864, p. 488
(2012).
2 A leading treatise states that the cases “have been unyielding in requiring that a party show
good reason for the failure to take appropriate action sooner.” 11 Wright & Miller § 2857, p. 327
(2012).
3 In fact, they did make some of the arguments earlier. See Plaintiffs’ Opposition to Defendants’
Motion for Summary Judgment pp. 17-18 (ECF No. 80) (asserting that fraudulent conduct
prevented fair presentation of claim); see also Objection to Recommended Decision p. 7 (ECF No.
86) (“Plaintiffs claim fraud on the court.”). But the arguments were insufficient to avoid the
defendants’ successful motion for summary judgment.
4 “The motion will be denied if it is merely an attempt to relitigate the case . . . .” 11 Wright &
Miller § 2860, p. 416 (2012).
2