Rabbe et al v. Wells Fargo Home Mortgage, Inc., et al

Filing 30

ORDER that the plaintiffs' Rule 60(b) motion (Filing No. 27 ) is denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RANDOLPH MICHAEL RABBE
AND LISA ANN RABBE,
8:17-CV-131
Plaintiffs,
vs.

ORDER

WELLS FARGO HOME
MORTGAGE, INC. AND WELLS
FARGO, N.A.,
Defendants.
This matter is before the Court on a "notice" filed by the plaintiffs that
the Court understands to be a motion for relief from a final judgment
pursuant to Fed. R. Civ. P. 60(b). Filing 27. The motion will be denied.
The plaintiffs expressly identify Rules 60(b)(2), (4), and (6) as the basis
for their motion. Filing 27 at 1. To support it, they provide 43 pages of
additional argument and over 100 pages of attached evidence. See filing 27.
But the gravamen of their argument and evidence is that the Court
committed legal error in granting the defendants' motion for judgment on the
pleadings (filing 24) and dismissing the plaintiffs' complaint. Filing 25.
To begin with, a Rule 60(b)(2) motion based on the discovery of new
evidence must show (1) that the evidence was discovered after the court's
order, (2) that the movant exercised diligence to obtain the evidence before
entry of the order, (3) that the evidence is not merely cumulative or
impeaching, (4) that the evidence is material, and (5) that the evidence would
probably have produced a different result. Webb v. Exxon Mobil Corp., 856
F.3d 1150, 1159-60 (8th Cir. 2017). The plaintiffs have made none of those

showings. Many of the attachments to the plaintiffs' motion have already
been presented to the Court in one form or another. The plaintiffs have done
nothing to explain why any new evidence was not already presented. And the
Court finds no basis to conclude that any new evidence would have any effect
on the outcome of the proceeding.1 Motions under Rule 60(b)(2) on the ground
of newly discovered evidence are viewed with disfavor, U.S. Xpress
Enterprises, Inc. v. J.B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003),
and there is no support for the plaintiffs' motion here.
The plaintiffs also suggest that the Court's judgment is void. Filing 27
at 2-4. But the basis for that suggestion seems to be that the Court "lost
subject matter jurisdiction" by committing the legal errors the plaintiffs
assert. See filing 27 at 42. And a Rule 60(b)(4) motion to void the judgment
for lack of subject matter jurisdiction will succeed only if the absence of
jurisdiction was so glaring as to constitute a total want of jurisdiction or a
plain usurpation of power so as to render the judgment void from its
inception. Hunter v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
Stated another way, such plain usurpation of power occurs when there
is a total want of jurisdiction as distinguished from an error in the exercise of
jurisdiction. Id. An error in interpreting jurisdiction or in assessing
jurisdictional facts does not render the judgment a complete nullity or a plain
usurpation of power for purposes of Rule 60(b)(4). Id. The plaintiffs seem to
1

That is particularly true because much of the plaintiffs' focus is on the issues that they

uniquely asserted in their purported amended complaint. Compare filing 23 with filing 27.
But the plaintiffs have done nothing to demonstrate that the Court erred in striking their
amended complaint because of their failure to comply with court rules. Filing 24 at 11. The
plaintiffs go so far as to complain that the undersigned "never says on what legal basis he
decided to strike it," filing 27 at 9, which obviously does not identify any error in the Court's
clearly articulated basis for its ruling, filing 27 at 11.

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be suggesting that the Court had jurisdiction, but somehow made a mistake
and lost it along the way. They have identified no basis to find that the
Court's judgment was void ab initio, as opposed to at most an erroneous
interpretation or assessment of jurisdiction.
Finally, the plaintiffs also cite Rule 60(b)(6), which provides for relief
from a judgment for "any other reason that justifies relief." But relief is
available under Rule 60(b)(6) only where exceptional circumstances have
denied the moving party a full and fair opportunity to litigate its claim and
have prevented it from receiving adequate redress. Murphy v. Missouri Dep't
of Corr., 506 F.3d 1111, 1117 (8th Cir. 2007); see Buck v. Davis, 137 S. Ct.
759, 777-78 (2017). And Rule 60(b) is not a vehicle for simple reargument on
the merits, Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999), nor is it a
substitute for a timely appeal, Arnold v. Wood, 238 F.3d 992, 998 (8th Cir.
2001). The plaintiffs' insistence that the Court erred in dismissing their
complaint is not an extraordinary circumstance—it is, in fact, quite ordinary
for the losing party to a lawsuit to believe that the Court got it wrong. It does
not warrant relief under Rule 60(b)(6).
Accordingly, IT IS ORDERED that the plaintiffs' Rule 60(b) motion
(filing 27) is denied.
Dated this 31st day of August, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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