Raimondo, et al v. Armada Village, et al
Filing
92
ORDER Denying 90 Petition for Leave to Bring Motion Under Fed. R. Civ. P. 60(b) filed by Joseph Raimondo. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH RAIMONDO and
JANET RAIMONDO,
Plaintiffs,
Case No. 02-71696
v.
Hon. Denise Page Hood
VILLAGE OF ARMADA, et al.,
Defendants.
___________________________________/
ORDER DENYING PETITION FOR LEAVE
TO BRING MOTION UNDER FED. R. CIV. P. 60(b)
On September 30, 2003, the Court entered an Opinion and Order granting
various motions to dismiss and for summary judgment filed by the many Defendants
in this case and other related cases. (See Entry 9/30/2003; Case No. 01-71353, ECF
No. 238) The Sixth Circuit Court of Appeals affirmed the Court’s Judgment on July
30, 2007, with the Mandate issued on August 27, 2007. (Case No. 01-71353, ECF
Nos. 294, 295)
This matter is before the Court on a Petition for Leave to File a Motion under
Fed. R. Civ. P. 60(b). (ECF No. 90) In the related Case No. 01-71353, Plaintiff also
filed a Motion to Invalidate Finality of Judgments pursuant to Rule 60(b) of the Rules
of Civil Procedure filed by Plaintiff Joseph Raimondo filed on June 7, 2021. (Case
No. 01-71353, ECF No. 304)1
Plaintiff submits that in a case he filed before the federal district court in the
Western District of Missouri, Case No. 17-04254, Raimondo v. Hood, Defendants
presented a defense relying on res judicata, which he claims was fraud on the court
and that fraud on the court were also perpetrated in the cases filed in this District. As
the Missouri court noted, Plaintiff must file such a motion before the original court,
which he has so filed in the instant case and in Case No. 01-71353.
Plaintiff’s fraud on the court argument is that various defense counsel in the
instant case (and other related cases) perpetrated fraud on the court because Lieutenant
Baumgarten’s affidavit in support of the April 8, 1998 warrant and seizure of
Plaintiff’s property was based on fraudulent facts, which resulted in fraudulent
charges against Plaintiff.
Rule 60(b) of the Federal Rules of Civil Procedures provides that,
[T]he court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new
trial under Rule 59(b);
Plaintiff also filed a separate action seeking a Rule 60(b) relief based on
fraud upon the Court. See Case No. 21-10854, Raimondo v. United States of
America.
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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an 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). The standard under Rule 60(b) is significantly higher than the
Rule 59(e) standard. Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir.
1998). Motions based on Rule 60(b)(1), (2) and (3) must be filed no more than a year
after the entry of the judgment or order. Fed. R. Civ. P. 60(c)(1). Under the catch-all
provision in subsection (6), the Sixth Circuit has held that a Rule 60(b)(6) motion
must be based upon some reason other than those stated in subsections (1) to (5).
Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1333 (6th Cir.
1985). Extraordinary circumstances are needed to grant relief under Rule 60(b)(6).
Id.
As expressly noted by the Rule, motions based on (1), (2) and (3) must be filed
no more than a year after the entry of the judgment or order. Fed. R. Civ. P. 60(c)(1).
Plaintiff’s claims under Rule 60(b)(2) and misrepresentation and fraud under Rule
60(b)(3) are untimely. The Court finds none of the judgments are void, and so Rule
60(b)(4) does not apply. As to any argument under Rule 60(b)(5) that previous orders
and judgment are no longer equitable, the rule provides no such relief. Rule
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60(b)(5)’s equitable provision is intended to apply to injunctions, declaratory
judgments or other equitable orders. See Northridge Church v. Charter Twp. of
Plymouth, 647 F.3d 606, 613 (6th Cir. 2011); Olle v. Henry & Wright Corp., 910 F.2d
357, 364-65 (6th Cir. 1990); Stokors S.A. v. Morrison, 147 F.3d 759, 762 (8th Cir.
1998); Kirby v. Memphis Security Co., No. 01-CV-151, 2003 WL 22509412 at *8
(E.D. Tenn. Nov. 5, 2003).
However, courts have held that “fraud upon the court” is not constrained by the
one-year time limit. Plaintiff claims that based on fraudulent statements by a witness,
in this case, Lieutenant Baumgarten, there has been fraud on the court. Because
Lieutenant Baumgarten is not an “officer of the court” but rather is considered a
witness, any alleged false statements he may have made do not support a fraud on the
court claim. An allegation of perjury of a witness, does not suffice to constitute “fraud
upon the court.” H.K. Porter Co., v. Goodyear Tire & Rubber Co., 536 F.2d 1115,
1118 (6th Cir.1976). Rather, “an officer of the court” must commit fraudulent
conduct for a fraud on the court claim to be legally cognizable. Demjanjuk v.
Petrovsky, 10 F.3d 338, 348 (6th Cir.1994); Preferred Properties, Inc. v. Indian River
Ests., Inc., 214 F. App'x 538, 540 (6th Cir. 2007). The elements of fraud upon the
court consists of conduct: 1) on the part of an officer of the court; 2) that is directed
to the “judicial machinery” itself; 3) that is intentionally false, wilfully blind to the
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truth, or is in reckless disregard for the truth; 4) that is a positive averment or is
concealment when one is under a duty to disclose; and, 5) that deceives the court.
Plaintiff alleges that various defense counsel knew that the affidavit submitted
by Lieutenant Baumgarten in connection with the warrants and seizure of the
properties back in April 1998 was false. However, Plaintiff has not submitted any
evidence, other than his belief and allegations, to support his claim that these defense
counsel intentionally submitted any affidavit which defense counsel knew were false.
Plaintiff does not point to any document or statements made by any defense counsel
from the record that was false. Nor has Plaintiff submitted any evidence that any
defense counsel was wilfully blinded to the truth or were in reckless disregard to the
truth. It is noted that the Court’s Orders dismissing the defendants in the various cases,
specifically the law enforcement officer defendants, were based on qualified immunity
and/or governmental immunity. Any affidavits in connection with the underlying
warrants and seizure on April 1998 were not at issue since the Court’s rulings were
based on the individual law enforcement officer’s status as a state actor in a Section
1983 civil rights case. Plaintiff has not presented facts from the record supporting his
allegation that various defense counsel intentionally submitted fraudulent documents
they knew were false to this Court in order to deceive the Court. The Court denies the
Petition to file a Rule 60(b) motion and, if such were allowed, the Court denies the
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motion on the merits. The Court will not reconsider the Court’s rulings dismissing the
cases filed by Plaintiff and so will not consider Plaintiff’s other arguments.
Accordingly,
IT IS ORDERED that the Petition for Emergence Leave to Bring a Motion
under Rule 60(b) of the Rules of Civil Procedure for review of fraud on the court
(ECF No. 90) is DENIED.
s/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
Dated: August 18, 2022
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