Saldana v. Lahm et al

Filing 56

ORDER denying 52 Motion to Set Aside Judgment. The Plaintiff Mayra Saldanas Rule 60(b) Motion to Vacate Judgment (Filing No. 52 )is denied. Ordered by Chief Judge Laurie Smith Camp. (RAS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MAYRA SALDANA,
Plaintiff,
v.
RHONDA LAHM,
Defendant.

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CASE NO. 4:13CV3108

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiff’s Rule 60(b) Motion to Vacate
Judgment (Filing No. 52).

Plaintiff Mayra Saldana (“Saldana”) contends that newly

discovered evidence demonstrates that an affidavit presented by Defendant Rhonda Lahm
(“Lahm”) in support of her Motion for Summary Judgment was false. While the parties’
briefs and evidence presented in connection with the pending motion do suggest that
Lahm’s earlier affidavit (Filing No. 42-9) was somewhat misleading, the Motion to Vacate
Judgment will be denied.
STANDARD OF REVIEW
Fed. R. Civ. P. 60 provides in pertinent part:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
....
(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 opposing party[.]
To prevail under Rule 60(b)(2) a moving party must demonstrate that “(1) the
evidence was discovered after trial; (2) due diligence was exercised to discover the
evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4)

the evidence is such that a new trial would probably produce a different result.” U.S.
Xpress Enterprises, Inc. v. J. B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003)
(citation omitted).
To prevail under Rule 60(b)(3) a moving party must demonstrate, “with clear and
convincing evidence, that the opposing party engaged in a fraud or misrepresentation that
prevented the movant from fully and fairly presenting its case.” Harley v. Zoesch, 413 F.3d
866, 870 (8th Cir. 2005).
Motions to vacate judgment are disfavored. Heim v. Comm’r, 872 F.2d 245, 247
(8th Cir. 1989).
DISCUSSION
Saldana initiated this action on May 31, 2013. Discovery commenced on November
18, 2013 (Filing No. 33, ¶ 1.) Lahm moved for summary judgment on January 17, 2014
(Filing No. 40). In support of her motion, Lahm submitted her affidavit (Filing No. 40-9),
describing how the Nebraska Department of Motor Vehicles (“DMV”) used the Systematic
Alien Verification for Entitlements (“SAVE”) Program administered by the United States
Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland
Security. Lahm stated:
11. The DMV undertakes this procedure when processing an application
from any non-U.S. citizen. From a lawful status verification perspective, the
DMV does not differentiate among non-U.S. citizen immigration statuses, nor
does it apply a more or less stringent verification process for an applicant of
one immigration status versus an applicant of a different immigration status.
12. More specifically, the DMV does not differentiate within the category of
immigrants with “deferred action status.”

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13. The DMV’s aim in utilizing the SAVE system is to ascertain whether or
not an applicant possesses lawful status in the United States, as determined
by the federal government.
Filing No. 42-9 at 3.
As Saldana correctly notes, this Court interpreted Lahm’s affidavit to mean that DMV
treated all non-citizen deferred-action-status applicants for driver’s licenses the same.
Instead, Lahm now states that paragraph 12 of her affidavit was in reference to DMV’s use
of the SAVE Program, and that DMV has relied on that Program to determine whether an
applicant has “lawful status” in the United States.
While paragraph 12 of Lahm’s affidavit is misleading when read alone, Saldana has
not shown by clear and convincing evidence that the affidavit was fraudulent or an overt
misrepresentation of the facts. Saldana also has not demonstrated that she exercised due
diligence to discover the evidence (that DMV may have issued driver’s licenses to certain
deferred-action-status applicants) before the Court’s ruling on Lahm’s Motion for Summary
Judgment.1 Nor has Saldana demonstrated that a different result would have been likely
if the newly discovered evidence had been presented in opposition to Lahm’s Motion for
Summary Judgment. In its Memorandum and Order granting Summary Judgment, the
Court said:

1

Discovery was not stayed pending the disposition of the Motion for Summary
Judgment. Although Saldana requested more time for discovery before responding to
Lahm’s Motion for Summary Judgment, Saldana did not support her request with any
affidavit or declaration, nor did she set forth specific reasons why she could not present
facts essential to justify her opposition to Lahm’s motion. See Fed. R. Civ. P. 56(d): “If
a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the
motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery;
or (3) issue any other appropriate order.”
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The uncontroverted evidence now demonstrates that the DMV issues
driver’s licenses and state identification cards only to persons with lawful
status in the United States, as determined by the federal government and
verified through the Systematic Alien Verification for Entitlements (“SAVE”)
Program, administered by the United States Citizenship and Immigration
Services (“USCIS”), an agency of the U.S. Department of Homeland
Security. Lahm and DMV rely solely on the SAVE database to determine
whether a non-citizen applicant has lawful status in the United States, and
they do not differentiate between different categories of persons with
deferred action status.
Filing No. 48 at 3-4.
If Lahm and DMV were following the policy alleged by Saldana in her
First Amended Complaint–issuing driver’s licenses to other deferred action
recipients and individuals submitting EADs, but not to DACA recipients (First
Amended Complaint, Filing No. 16 at ¶¶ 50-53)–the policy might well lack
any rational basis. Instead, Lahm and DMV are following Nebraska’s statute,
Neb. Rev. Stat. § 60-484.04 (Cum. Supp. 2012)2, and relying upon the
USCIS database, to issue driver’s licenses only to applicants having lawful
status in the United States.
Saldana is not similarly situated to persons having lawful status in the
United States with respect to her qualification for a Nebraska driver’s license,
and Lahm has not denied Saldana equal protection of the law.
Id. at 7.
Although the newly discovered evidence may reveal that DMV has issued drivers
licenses to some non-DACA deferred-action-status applicants, it remains undisputed that
Lahm and DMV rely on the USCIS SAVE data base to determine whether an applicant has
lawful status in the United States, and driver’s licenses are issued only to those having
lawful status according to that federal resource. Saldana has not demonstrated that Lahm
has treated her differently from similarly situated persons, or that Lahm’s actions lack a
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“Before being issued any type of operator’s license or a state identification card
under the Motor Vehicle Operator’s License Act, the departm ent [DMV] shall require an
applicant to present valid documentary evidence that he or she has lawful status in the
United States.” Neb. Rev. Stat. § 60-484.04(2) (Cum. Supp. 2012).
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rational basis. Accordingly, Saldana has not demonstrated that her newly discovered
evidence likely would produce a different result.
IT IS ORDERED:
The Plaintiff Mayra Saldana’s Rule 60(b) Motion to Vacate Judgment (Filing No. 52)
is denied.
.

DATED this 12th day of February, 2015.
BY THE COURT:
S/Laurie Smith Camp
Chief United States District Judge

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