Balistreri-Amrhein v. Verrilli, Jr. et al

Filing 133

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE - Having considered each of Plaintiffs' objections (Dkt. 132 ) and having conducted a de novo review, the Court is of the opinion that the f indings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judges report (Dkt. 128 ) as the findings and conclusions of the Court. Accordingly, it is ORDERED that Plaintiffs' Third Amended Complaint (Dkt. 126 ) be DISMISSED, and that Plaintiffs' claims be DISMISSED with prejudice. All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil action. Signed by Judge Amos L. Mazzant, III on 2/24/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DARLENE C. BALISTRERI-AMRHEIN,
ANTHONY J. BALISTRERI, DECEASED
v.
DONALD VERRILLI, JR., UNITED
STATES SOLICITER GENERAL, ET AL

§
§
§ Civil Action No. 4:16-CV-112
§ (Judge Mazzant/Judge Nowak)
§
§

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On October 7, 2016, the report of the Magistrate Judge (Dkt. #128) was entered containing
proposed findings of fact and recommendations that Plaintiffs Darlene C. Balistreri-Amrhein’s
(“Ms. Amrhein”) and Anthony Balistreri’s (“Mr. Balistreri”) (collectively “Plaintiffs”) Third
Amended Complaint be dismissed.

Having received the report of the Magistrate Judge

(Dkt. #128), having considered each of Plaintiffs’ objections (Dkt. #132), and having conducted a
de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate
Judge are correct, and the Court hereby adopts the Magistrate Judge’s report (Dkt. #128) as the
findings and conclusions of the Court.
BACKGROUND
The underlying facts are set out in further detail by the Magistrate Judge and need not be
repeated here in their entirety (see Dkt. #128). Accordingly, the Court sets forth herein only those
facts pertinent to Plaintiffs' objections.

Plaintiffs filed suit on May 19, 2008, in Texas state court in Collin County (Case Nos. 29601145-2008, 296-04897, 429-001145-2008) alleging Jerry and Lori Reichert, among others,
breached a contract for the sale of real estate and engaged in fraud and other wrongdoing in relation
to the sale and related contract (the “Transaction”) (Dkt. #126 at 1-4). Plaintiffs lost in the trial
courts and prosecuted appeals thereafter (Case No. 05-09-01377) (these proceedings are
hereinafter and collectively referenced as the “Original State Civil Actions”) (Dkt. #126 at 5). The
Texas Supreme Court denied Plaintiffs’ petition for review in 2012, terminating the Original State
Civil Actions.
Meanwhile, and beginning in September 2012, Plaintiffs filed a new lawsuit in the
Northern District of Texas (N.D. Tex. Case No. 3:12-CV-3707-G-BK) asserting many of the same
claims against many of the same defendants as had Plaintiffs in the Original State Civil Actions;
Plaintiffs also alleged misconduct and bias on the part of various Collin County judges, court
administrators, and attorneys allegedly involved in the Original State Civil Actions (the
proceedings before the Northern District of Texas are hereinafter and collectively referenced as
the “Northern District of Texas Action”). See Amrhein v. Reichert (Amrhein I), No. 3:12-CV3707-G-BK, 2013 WL 1155473, at *13-14 (N.D. Tex. Feb. 1, 2013), report and recommendation
adopted Amrhein v. Reichert (Amrhein I Order), 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013)
(dismissing with prejudice all of Plaintiffs’ claims against served defendants); Amrhein v. Reichert
(Amrhein II), No. 3:12-CV-3707-G-BK, 2013 WL 1174626, at *1-2 (N.D. Tex. Feb. 15, 2013),
report and recommendation adopted Amrhein v. Reichert (Amrhein II Order), 2013 WL 1181273
(N.D. Tex. Mar. 21, 2013) (dismissing without prejudice all of Plaintiffs’ claims against unserved
defendants). In dismissing Plaintiffs’ claims, the Northern District also imposed a Pre-Filing
Injunction on Ms. Amrhein for her repeated, frivolous court filings:

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Darlene Amrhein is prohibited from filing any new civil action in any United
States district court unless she first files a motion requesting leave of court to do
so and attaches thereto copies of (1) her proposed complaint, (2) the magistrate
judge’s findings, conclusions and recommendation in this case, (3) this court’s
order accepting the findings, conclusions and recommendation of the United States
Magistrate Judge, and (4) the judgment in this case.
Amrhein I Order, 2013 WL 1174571, at *1; see Amrhein I, 2013 WL 1155473, at *13-14
(explaining need for sanctions and recommending pre-filing injunction). Plaintiffs appealed the
Northern District’s ruling unsuccessfully. Amrhein v. Reichert, No. 13-10450 (5th Cir. 2015), cert.
denied, 135 S. Ct. 1479 (2015).
Plaintiffs filed the instant lawsuit on February 11, 2016, alleging myriad causes of action
against over one hundred and twenty distinct defendants, many of which Plaintiffs already had
sued in the Northern District of Texas Action (Dkt. #1; see Dkt. #5 (First Amended Complaint);
Dkt. #7 (Second Amended Complaint)).1 On February 11, 2016, Plaintiffs filed a Motion to
Proceed In Forma Pauperis (Dkt. #3), which the Court granted on February 19, 2016 (Dkt. #4).
The Court subsequently ordered Plaintiffs to file a Third Amended Complaint and ordered that
service “be withheld pending judicial screening of Plaintiffs’ Third Amended Complaint pursuant
to 28 U.S.C. § 1915A” (Dkt. #124).

Plaintiffs filed the Third Amended Complaint on

March 14, 2016 (Dkt. #126). The Magistrate Judge entered a report and recommendation on
October 7, 2016 (Dkt. #128), recommending Plaintiffs’ Third Amended Complaint be dismissed
with prejudice. On October 25, 2016, Plaintiffs filed Objections to the Magistrate Judge’s report
and recommendation (Dkt. #132).

Reviewing the Magistrate Judge’s report and recommendations, the Court finds the Magistrate Judge accurately and
thoroughly identifies each of the Defendants Plaintiffs sue in this action. As a result, the Court adopts the Magistrate
Judge’s identification of the various groups of Defendants (see Dkt. #128 at 10-11 & nn. 5-7) and proceeds to evaluate
Plaintiffs’ Objections with reference to the “Northern District of Texas Defendants,” the “New Transaction
Defendants,” and the “Eastern District of Texas Defendants.” To the extent the Court omits inadvertently any named
defendant in this action, the Court clarifies that this Memorandum addresses all named defendants and all claims raised
by Plaintiffs in their Third Amended Complaint.

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OBJECTIONS
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations to which
the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). As a
threshold matter, the Court notes Plaintiffs’ Objections (vastly in excess of the Court’s eight-page
limit) take issue with the entirety of the Magistrate Judge’s findings and recommendations.
Moreover, a number of Plaintiffs’ objections are duplicative and repetitive; and after reviewing
Plaintiffs’ filing under the relaxed pleading standard afforded pro se litigants, see Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), the Court discerns that Plaintiffs object specifically to the
following: (1) the Magistrate Judge’s use of 28 U.S.C. § 1915 (“Section 1915”) (a) to screen
Plaintiffs’ Third Amended Complaint and recommend dismissal with prejudice of Plaintiffs’
claims, (b) to find that Plaintiffs’ claims against the Eastern District of Texas Defendants should
be dismissed with prejudice, and (c) to find that Plaintiffs’ claims against the Northern District of
Texas Defendants and New Transaction Defendants should be dismissed with prejudice; and
(2) the Magistrate Judge’s finding that Mr. Balistreri’s claims should be dismissed.2
Plaintiffs object to the Magistrate Judge’s screening of Plaintiffs’ Third Amended
Complaint under Section 1915 (e.g., Dkt. #132 at 7-8, 12-15, 17-18, 24-30). Primarily, Plaintiffs
assert Section 1915 applies only to prisoners and, accordingly, that the Magistrate Judge
inappropriately applied that provision to Plaintiffs, who are not prisoners (Dkt. #132 at 7-8).
Plaintiffs contend, as well, that the Magistrate Judge erred in recommending Plaintiffs’ claims
against each of the groups of Defendants be dismissed with prejudice (Dkt. #132 at 13). Further,

Because the Court finds Plaintiffs’ Third Amended Complaint should be dismissed in its entirety, the Court does not
reach Plaintiffs’ objection to the Magistrate Judge’s finding that Mr. Balistreri’s claims should be dismissed for lack
of proper representation.
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Plaintiffs assert, the Magistrate Judge erred in finding (1) Plaintiffs’ claims against the Eastern
District of Texas Defendants should be dismissed for failure to state a claim upon which relief may
be granted and (2) Plaintiffs’ claims against the Northern District of Texas Defendants and the
New Transaction Defendants are frivolous and malicious (Dkt. #132 at 1-3, 6, 8-27).
A.

Application of 1915 and Dismissal with Prejudice Thereunder

District courts have authority under Section 1915 to dismiss a complaint sua sponte where
the complaint “[1] is frivolous or malicious; [2] fails to state a claim on which relief may be
granted; or [3] seeks monetary relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B); see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);
Kenechukwu v. Holder, No. 9:15-CV-62, 2016 WL 3961714, at *1-2 (E.D. Tex. June 10, 2016,
report and recommendation adopted, 2016 WL 3926576 (E.D. Tex. July 21, 2016). A court may
dismiss a complaint under this standard “if it lacks an arguable basis in law or fact.” Siglar, 112
F.3d at 193; see Moore v. Mabus, 976 F.2d 268, 269-70 (5th Cir. 1992) (explaining the distinction
between factual and legal frivolousness in in forma pauperis complaints). Although courts
construe pro se filings liberally in this context, see, e.g., Flanagan v. LaGrone, No. 9:16-CV-59MHS, 2016 WL 4163557, at *1 (E.D. Tex. July 6, 2016), report and recommendation adopted,
2016 WL 4140751 (E.D. Tex. Aug. 3, 2016), dismissal is appropriate where the claims have no
chance of success, cf. Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir. 1993) (noting dismissal of
claims with “some chance” of success is inappropriate at screening stage but affirming dismissal
where pro se plaintiff’s claim “[was] based upon an indisputably meritless legal theory”).
Moreover, “[t]he statute applies equally to prisoner and non-prisoner cases.” Kenechukwu, 2016
WL 3961714, at *1-2 (citing Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (per curiam)
(applying Section 1915 to non-prisoner pro se litigant)); see, e.g., Booker, 2 F.3d at 115 (applying

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Section 1915 to non-prisoner, former arrestee who claimed wrongful arrest and affirming dismissal
under Section 1915); Patel v. United Airlines, 620 F. App’x 352 (5th Cir. 2015) (per curiam)
(applying Section 1915 to non-prisoner pro se litigant); James v. Richardson, 344 F. App’x 982,
983 (5th Cir. 2009) (per curiam) (“Section 1915(e)(2)(B) requires dismissal of frivolous IFP
actions even if those actions are brought by non-prisoner plaintiffs.”); Walters v. Scott, No. H–14–
1637, 2014 WL 5878494, at *1 (S.D. Tex. Nov. 11, 2014) (“Section 1915(e)(2)(B) applies equally
to prisoner and non-prisoner in forma pauperis cases.”); Sanchez v. Waguespack, No. 09-6130,
2010 WL 1727836, at *2 (E.D. La. Mar. 31, 2010) (same); Hamilton v. Landmark of Richardson,
No. 3–02–CV–2681–K, 2003 WL 131722, at *1 n.1 (N.D. Tex. Jan. 8, 2003) (same); Haqq v. Tex.
Dep’t of Hum. Servs., No. EP-07-CA-0156-FM, 2007 WL 1958611, at *1 (W.D. Tex. June 29,
2007) (“Section 1915(e)(2)(B) applies to both prisoner and non-prisoner in forma pauperis
cases.”); cf. Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997) (interpreting Section 1915 and
determining sections using either or both nouns “persons” and “prisoners” applied to non-prisoners
and prisoners, while sections using only noun “prisoner” applied only to prisoners); 28 U.S.C. §
1915(e)(1)-(2) (using the term “person,” not “prisoner”). The Court finds in accord with these
authorities that Section 1915(e)(2)(B) applies to non-prisoners and prisoners alike.
Further, courts appropriately dismiss claims with prejudice under Section 1915(e)(2)(B) in
certain circumstances. See Shabazz v. Franklin, 380 F. Supp. 2d 793, 802 (N.D. Tex. 2005) (citing
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992), and Marts v. Hines, 117 F.3d 1504, 1505 (5th
Cir. 1997) (en banc)). The Fifth Circuit has held that, when presented with one of the following
situations, a court may dismiss an in forma pauperis complaint with prejudice: “(1) ‘complaints
containing claims which, on their face, were subject to an obvious meritorious defense’; (2) when
the plaintiff had been ‘given an opportunity to expound on the factual allegations’ through a

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questionnaire or hearing and still ‘could not assert a claim with an arguable factual basis’; and
(3) ‘claims without an arguable basis in law.’” Shabazz, 380 F. Supp. 2d at 802-03 (noting this
includes “‘dismissals as frivolous or malicious’ under the IFP screening statute[,]”citing Marts,
117 F.3d at 1505, and United States v. Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998)). Plaintiffs’
citation to Denton in support of the proposition that the Magistrate Judge inappropriately
recommended dismissal with prejudice accordingly is unavailing:
The rule that the in limine dismissals of actions by the district court generally are
to be with prejudice particularly fits dismissals under the former 28 U.S.C. §
1915(d), now a part of 28 U.S.C. § 1915(e)(2). Dismissals under the in forma
pauperis statute are in a class of their own, acting not as dismissals on the merits
but, rather, as denials of in forma pauperis status. Typically, but not exclusively,
such dismissals may serve as res judicata for subsequent in forma pauperis filings,
but they effect no prejudice to the subsequent filing of a fee-paid complaint making
the same allegations. Exceptions included complaints containing claims which, on
their face, were subject to an obvious meritorious defense, or instances in which the
plaintiff was given an opportunity to expound on the factual allegations by a Watson
questionnaire or a Spears hearing and could not assert a claim with an arguable
factual basis, or claims without an arguable basis in law.
On en banc reconsideration, considering the distinct features of such in forma
pauperis proceedings, we now hold that dismissals as frivolous or malicious should
be deemed to be dismissals with prejudice unless the district court specifically
dismisses without prejudice. . . .
Marts, 117 F.3d at 1505-06 (interpreting Denton) (footnotes omitted). In light of the Fifth Circuit’s
clear instruction in Marts, the Court finds the Magistrate Judge’s recommendations to dismiss with
prejudice appropriate.
B.

Dismissal of Claims Against Eastern District of Texas Defendants as Frivolous

“A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal
theory, such as if the complaint alleges the violation of a legal interest which clearly does not
exist.” Newsome, 301 F.3d at 231-32 (finding dismissal of pro se litigant’s APA claim appropriate
under Section 1915 because APA accorded litigant no right to sue EEOC given that EEOC had

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engaged in no final agency action); see, e.g., Neitzke, 490 U.S. at 327-28 (“Examples . . . [include]
claims against which it is clear that the defendants are immune from suit, . . . .”); Billbrew v.
Johnson, 239 F. App’x 49, 50 (5th Cir. 2007) (per curiam) (affirming dismissal claim of deliberate
medical indifference under Section 1915 because “wholly conclusional”).
Likewise, claims lack an arguable basis in fact where based upon “fantastic or delusional
scenarios.” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (Section 1915 “accords judges . . .
the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims
whose factual allegations are clearly baseless.”); Denton, 504 U.S. at 32-33 (“[A] court may
dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless,’ . . . a category
encompassing allegations that are ‘fanciful,’ . . . ‘fantastic,’ . . . and ‘delusional[.]’”). Though an
“initial assessment of the in forma pauperis plaintiff’s factual allegations must be weighed in favor
of the plaintiff[,]” a court should consider “judicially noticeable facts” in determining whether the
allegations have any basis in fact. Denton, 504 U.S. at 32. Indeed, a complaint merits dismissal
under Section 1915 where it “appears that no relief could be granted under any set of facts that
could be proven consistent with the allegations.” Newsome, 301 F.3d at 231 (citing Moore v.
Carwell, 168 F.3d 234, 236 (5th Cir. 1999)).
In the present case, the Magistrate Judge considered each of Plaintiffs’ allegations with
regard to each of the groups of Eastern District of Texas Defendants3 and found that each should
be dismissed pursuant to Section 1915(e)(2)(B)(ii) for failure to state a claim on which relief may
be granted (Dkt. #128 at 16-21). In so finding, the Magistrate Judge determined that immunity
barred Plaintiffs’ claims against each group of Eastern District of Texas Defendants (see Dkt. #128

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The Magistrate Judge defines the following groups of Eastern District of Texas Defendants: (1) the Defendant Judges
and Courts (Dkt. #128 at 15 n.11); (2) the Defendant Court Staff and Clerks (Dkt. #128 at 15 n.12); (3) the Defendant
Attorneys and Law Firms (Dkt. #128 at 15 n.13); and (4) the Government Defendants (Dkt. #128 at 15 n.14).
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at 16-18 (finding judicial immunity absolutely bars Plaintiffs’ claims against the Defendant Judges
and Courts), 18 (finding immunity accorded judicial staff when executing court orders or matters
of judicial discretion applied to bar Plaintiffs’ claims against Defendant Court Staff and Clerks),
18-20 (finding the Defendant Attorneys and Law Firms are immune to Plaintiffs’ claims), 20-21
(finding Plaintiffs’ allegations against the Government Defendants conclusory and without any
basis in law)). After conducting a de novo review of the Third Amended Complaint, the Court
finds Plaintiffs’ claims against each of the Eastern District of Texas Defendants should be
dismissed with prejudice. Plaintiffs’ claims against the Defendant Judges and Courts clearly are
barred by immunity given that neither the allegations nor the objections demonstrate that any of
the Defendant Judges and Courts “acted in the ‘clear absence of all jurisdiction’” in any of the
relevant proceedings. See, e.g., Stump v. Sparkman, 435 U.S. 349, 355-57 (1978). Plaintiffs’
claims against the Defendant Court Staff and Clerks are clearly barred by immunity, as well,
because neither the allegations nor the objections show that any of the Defendant Court Staff and
Clerks acted other than as they were “specifically required to do under court order or at a judge’s
discretion.” See, e.g., Clay v. Allen, 242 F.3d 679, 682 (5th Circ. 2001) (per curiam) (citing Tarter
v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981)). Likewise, each of the Defendant Attorneys and
Law Firms—none of whom represented Plaintiffs in any of the relevant proceedings—has absolute
immunity to Plaintiffs’ claims expounded in the Third Amended Complaint, which allege only
“conduct [that] was ‘the kind of conduct in which an attorney engages when discharging . . . duties
to [a] client.’” See, e.g., Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 346-49 (5th Cir. 2016).
Finally, with regard to the Government Defendants, it “appears that no relief could be granted
under any set of facts that could be proven consistent with the allegations[,]” Newsome, 301 F.3d
at 231; Plaintiffs assert only that the Government Defendants have failed to respond to letters

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Plaintiffs have sent to them or that the Government Defendants have responded, but not to
Plaintiffs’ satisfaction (e.g., Dkt. #126 at 25-27). Plaintiffs’ complaints against the Government
Defendants accordingly lack an arguable basis in law. The Court finds Plaintiffs’ claims against
each and every of the Eastern District of Texas Defendants should be dismissed with prejudice.
C.

Reliance on Northern District of Texas Findings and on Pre-Filing Injunction—
Dismissal of Claims Against Northern District of Texas Defendants and the New
Transaction Defendants as Malicious

Plaintiffs also object to the Magistrate Judge’s findings and recommendation regarding the
Northern District of Texas and New Transaction Defendants. Construing the objections liberally,
Plaintiffs seemingly assert the Magistrate Judge’s consideration of these prior proceedings (and
the Pre-Filing Injunction) are erroneous because those judgments are void either under principles
of equity or under Federal Rule of Procedure 60(b) or 60(d). Plaintiffs claim the Northern District
of Texas either had no jurisdiction or issued rulings despite active frauds upon the court, rendering
the rulings and Pre-Filing Injunction void.
Federal Rule of Civil Procedure 60(b) permits a district court to relieve a party of a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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;
(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); see also Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010) (“Rule 60(b)(6)
is commonly referred to as a ‘grand reservoir of equitable power to do justice,’ [but] the rule is
only invoked in ‘extraordinary circumstances.’”). The decision whether to grant or deny a Rule
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60(b) motion generally “lies within the sound discretion of the district court[,]” Rocha, 619 F.3d
at 400, but “[u]nlike motions pursuant to other subsections of Rule 60(b), Rule 60(b)(4) motions
leave no margin for consideration of the district court's discretion as the judgments themselves are
by definition either legal nullities or not[,]” Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir. 1998).
The U.S. Supreme Court has noted that “[a] judgment is not void[] . . . simply because it is or may
have been erroneous.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 360, 370 (2010).
Indeed, “Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a
certain type of jurisdictional error or on a violation of due process that deprives a party of notice
or the opportunity to be heard.” Id. at 271. Courts “generally have reserved relief only for the
exceptional case in which the court that rendered judgment lacked even an ‘arguable basis’ for
jurisdiction. Id.
Alternatively, Rule 60(d) allows a court to “set aside a judgment for fraud on the court.”
Fed. R. Civ. P. 60(d); see also Fed. R. Civ. P. 60(b)(3). One court has distinguished between the
“fraud” referenced in Rule 60(b)(3) and Rule 60(b):
The Federal Rules of Civil Procedure provide two standards for judging fraud on
the court. The first, Fed.R.Civ.P. 60(b)(3), is aimed at unfairly obtained, not
factually incorrect, judgments. Rozier, 573 F.2d at 1339. It provides for relief from
judgment because of “fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party.” Fed.R.Civ.P. 60(b)(3).
One who asserts that an adverse party has obtained a verdict through fraud,
misrepresentation or other misconduct pursuant to Fed.R.Civ.P. 60(b)(3) must
prove it by clear and convincing evidence. Rozier, 573 F.2d at 1339 (citing Saenz
v. Kenedy, 178 F.2d 417, 419 (5th Cir.1949)). The conduct must have prevented
the losing party from fully and fairly presenting its case or defense. Rozier, 573
F.2d at 1339 (citing Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43
S.Ct. 458, 464, 67 L.Ed. 719 (1923)); Optimal Health Care Services, Inc. v.
Travelers Ins. Co., 801 F.Supp. 1558, 1561 (E.D.Tex.1992).
Fraud under the second standard, Rule 60(b)'s more stringent savings clause, is a
limited type of fraud. Rozier v. Ford Motor Co., 573 F.2d 1332, 1337–38 (5th
Cir.1978). It is fraud (1) that attempts or succeeds in defiling the court or (2) that is
perpetrated by officers of the court and prohibits the court from performing the
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impartial task of judging cases. Kerwit Med. Prods., Inc. v. N. & H. Instruments,
Inc., 616 F.2d 833, 837 (5th Cir.1980); 11 C. Wright & A. Miller, Federal Practice
and Procedure § 2870 (1973) (citing Hazel–Atlas Glass Co. v. Hartford–Empire
Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944)). Relief based upon this kind
of fraud is reserved for the most egregious misconduct and requires a showing of
an unconscionable scheme designed to improperly influence the court. Wilson v.
Johns–Manville Sales Corp., 873 F.2d 869, 872 (5th Cir.) cert. denied, 493 U.S.
977, 110 S.Ct. 504, 107 L.Ed.2d 506 (1989).
First Nat’l Bank of Louisville v. Lustig, 832 F. Supp. 1058, 1062 (E.D. La. 1993), aff'd, 96 F.3d
1554 (5th Cir. 1996).
Here, Plaintiffs do not raise a plausible Rule 60 challenge. In their objections, Plaintiffs
merely repeat the same allegations made in the Third Amended Complaint, namely that the various
judges, courts, clerks, and attorneys involved in the relevant proceedings have committed frauds
upon the court, that the various judges have improperly failed to recuse themselves, and that they
also have acted criminally and committed treason (e.g., Dkt. #126 at 28; Dkt. #132 at 15-17).
Plaintiffs complain of “lost summons, no hearings, no Orders, no fact witness testimony, confusion
. . . another ‘void judgment’ transferred to 5th Circuit Court of Appeals with friends of listed
Defendants as their Justices for special friendly Orders” (Dkt. #132 at 28), but allege no concrete
facts that might permit the Court to infer or determine some conceivable wrongdoing occurred.
Furthermore, Plaintiffs allege no jurisdictional defect in any of the relevant proceedings. Without
reason to question the propriety of the proceedings or the jurisdiction of the court in the
Northern District of Texas Action, the Court finds relief under Rule 60 is inappropriate here.
Accordingly, the Court finds Plaintiffs’ claims against the Northern District of Texas Defendants
and the New Transaction Defendants should be dismissed. Plaintiffs merely repeat the same
claims against the Northern District of Texas Defendants and the New Transaction Defendants as
were raised before the Northern District of Texas in the Northern District of Texas Action.
Moreover, Plaintiffs violated the terms of the Pre-Filing Injunction, as Plaintiffs did not seek leave
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to file a complaint in the Court prior to filing the instant suit. The Court, therefore, overrules these
objections.
CONCLUSION
Having considered each of Plaintiffs' objections (Dkt. #132) and having conducted a
de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate
Judge are correct and adopts the Magistrate Judge’s report (Dkt. #128) as the findings and
conclusions of the Court.
Accordingly, it is ORDERED that Plaintiffs’ Third Amended Complaint (Dkt. #126) be

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DISMISSED, and that Plaintiffs' claims be DISMISSED with prejudice.
All relief not previously granted is DENIED.
The Clerk is directed to CLOSE this civil action.
IT IS SO ORDERED.

SIGNED this 24th day of February, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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