UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1289

NABIL J. ASTERBADI,

Plaintiff - Appellant,

versus

EARL F. LEITESS; LEITESS, LEITESS AND

FREIDBERG, P.C.; THE CIT GROUP/EQUIPMENT

FINANCING, INCORPORATED,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. James C. Cacheris, Senior

District Judge. (CA-04-286-1)

Argued: March 16, 2006 Decided: April 20, 2006

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Dale Andrew Cooter, COOTER, MANGOLD, TOMPERT & KARAS,

L.L.P., Washington, D.C., for Appellant. M. Roy Goldberg,

SHEPPARD, MULLIN, RICHTER & HAMPTON, Washington, D.C., for

Appellees. ON BRIEF: Greggory B. Mendenhall, Christopher M.

Loveland, SHEPPARD, MULLIN, RICHTER & HAMPTON, Washington, D.C.,

for Appellees. 

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
2

PER CURIAM:

On March 17, 2004, Nabil Asterbadi initiated this civil action

in the Eastern District of Virginia against The CIT Group/Equipment

Financing, Inc. (“CIT”), Earl Leitess, and the law firm of Leitess,

Leitess, and Freidberg, P.C. (collectively, the “Defendants”).

Among Asterbadi’s claims was one made under Federal Rule of Civil

Procedure 60(b), seeking, inter alia, equitable relief from a

default judgment CIT had obtained against him more than ten years

earlier in that court (the “1993 Judgment”). On July 2, 2004, the

district court dismissed part of Asterbadi’s complaint in the

present civil action as barred by the statute of limitations, but

authorized Asterbadi to pursue his equitable relief claim and

struck his demand for a jury trial. On November 12, 2004, the

Defendants sought summary judgment on the equitable relief claim,

which was granted by the court’s Order of March 1, 2005. See

Asterbadi v. Leitess, No. CA-04-286-1 (E.D. Va. Mar. 1, 2005).

Asterbadi has appealed the summary judgment order and, as explained

below, we affirm.

I.

The background of this dispute is summarized as follows. In

1991, Washington Capital Aviation & Leasing, Inc. (“WCAL”)

purchased a Westwind II Jet aircraft for the sum of $2,262,000.

The purchase of the aircraft was financed by a loan from CIT, and
3

CIT obtained, in connection therewith, a security interest in the

plane. At the time of the loan transaction, Asterbadi was WCAL’s

sole stockholder, and he executed the promissory note to CIT as the

guarantor on CIT’s loan to WCAL. Thereafter, on February 12, 1993,

WCAL filed for Chapter 11 bankruptcy in the Eastern District of

Virginia. Leitess, who is being sued in this case, represented CIT

in the bankruptcy proceedings, where CIT was a primary secured

creditor. In that capacity, Leitess dealt with Joseph Manson,

WCAL’s bankruptcy lawyer, who was assisting (but not representing)

Asterbadi in connection with CIT’s efforts to resolve Asterbadi’s

guaranty obligation for the debt owing to CIT by WCAL.

On July 7, 1993, CIT filed a “Verified Complaint for Money

Owed” (the “1993 Complaint”) in the Eastern District of Virginia,

suing Asterbadi on his guaranty obligation. At that time, the

aircraft was already under contract to be sold for the sum of

$1,800,000. The 1993 Complaint was filed on behalf of CIT by

attorneys Christopher Moffitt and Randolph Knepper, and sought

damages from Asterbadi in the sum of $2,286,009.97 (the $2,184,950

balance on the CIT loan, plus interest and late fees to the date

suit was instituted), as well as additional interest and attorneys’

fees. On July 20, 1993, the sales transaction relating to the

aircraft was consummated. The Aircraft Bill of Sale in connection
1

Asterbadi asserts that he signed the Bill of Sale “[s]ometime

after a bankruptcy court hearing in May 1993,” and that he left the

date of sale on the Bill of Sale blank. He maintains that he did

so because he “understood that CIT needed to have a Bill of Sale to

accommodate a future sale of the aircraft, or in the event that CIT

retained the aircraft.”

4

therewith, dated July 20, 1993, was signed by Asterbadi.1

According to CIT, it received gross proceeds of $1,825,000 from the

July 20, 1993 sale of the aircraft, and it incurred $125,672.04 in

sales expenses, for a net of $1,699,327.96. The net proceeds to

CIT were thus $586,682.01 less than the sum it sought from

Asterbadi in the 1993 Complaint.

Asterbadi admits that he was served with the 1993 Complaint,

and that he nonetheless failed to respond to it. On August 30,

1993, Moffitt, at Leitess’s direction, filed a motion for default

judgment against Asterbadi on the 1993 Complaint, and failed to

inform the district court that the aircraft had been sold. The

court entered the 1993 Judgment on October 4, 1993, awarding CIT

$2,286,009.97 in damages, plus interest and attorneys’ fees in the

sum of $347,742.50. If the plane’s sale had been taken into

account, CIT would have been awarded $586,682.01 in damages —

$1,699,327.96 less than those awarded in the 1993 Judgment.

CIT did not thereafter seek to execute on the 1993 Judgment

and, on January 4, 1994, it entered into a forbearance agreement

with Asterbadi. By the forbearance agreement, CIT reduced the 1993

Judgment to $586,682.01, and it also reduced the interest and
5

attorneys’ fees award to $88,002.50. The forbearance agreement

provided that, if Asterbadi paid $250,000 in principal to CIT by

July 8, 1996, and did not otherwise default, he would “be released

from any further payment or other obligation on account of the

[1993] Judgment.” That same day, Leitess sent a letter to Manson,

copied to Moffitt, and directed that Moffitt credit the 1993

Judgment to account for the aircraft’s sale and reflect the

forbearance agreement. On April 11, 1994, Moffitt filed a Notice

of Partial Satisfaction with the Clerk in the Eastern District of

Virginia, pursuant to Leitess’s instructions.

When Asterbadi failed to make the payments agreed upon in the

forbearance agreement, CIT made multiple attempts to collect on the

1993 Judgment, filing enforcement actions against him between 1995

and 2003 in New Jersey, Maryland, and the District of Columbia.

Although certain of those filings failed to initially reflect that

the 1993 Judgment had been reduced, Asterbadi does not dispute

that, in all instances, the appropriate courts were informed by CIT

of the aircraft sale, the forbearance agreement, and the Notice of

Partial Satisfaction.

On March 17, 2004, Asterbadi filed this civil action in the

Eastern District of Virginia, asserting, inter alia, his claim for

equitable relief from the 1993 Judgment. As noted, on November 12,

2004, the Defendants moved for summary judgment on the equitable

relief claim, and their motion was granted by Order of March 1,
6

2005. This appeal followed, and we possess jurisdiction pursuant

to 28 U.S.C. § 1291.

II.

We review de novo an award of summary judgment, viewing the

facts and inferences drawn therefrom in the light most favorable to

the non-moving party. Baqir v. Principi, 434 F.3d 733, 741 (4th

Cir. 2006). Summary judgment is not appropriate unless “‘the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, show that there is no

genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(c)) (alteration and internal quotation marks omitted).

Whether to accord equitable relief from a final judgment, however,

is an issue committed to the sound discretion of the district

court. See Browder v. Dir., Dep’t of Corrections of Ill., 434 U.S.

257, 263 n.7 (1978).

III.

Asterbadi contended in the district court that CIT, in

securing the 1993 Judgment against him, perpetrated a fraud. He

maintained that the fraud emanated from CIT’s failure to disclose

that the aircraft had been sold, thereby denying Asterbadi an

opportunity to determine whether the sale was a commercially
2Although Rule 60(b)(3) allows a party to obtain relief from

a judgment on the basis of “fraud . . . , misrepresentation, or

other misconduct of an adverse party,” a motion under Rule 60(b)(3)

must be made “not more than one year after the judgment.” Because

Asterbadi filed this civil action in March 2004 — more than ten

years after the 1993 Judgment was entered — he cannot rely on Rule

60(b)(3) to obtain relief from the 1993 Judgment.

7

reasonable transaction under Virginia’s Uniform Commercial Code

(the “UCC”), and prejudicing his right under the UCC “to recover

[from CIT] any loss caused by a failure to comply with” the UCC’s

provisions. See Va. Code. Ann. § 8.9-507(1) (1993) (repealed

2001). In other words, Asterbadi asserted that CIT devalued the

plane by selling it improperly, and then, in securing the 1993

Judgment, fraudulently failed to disclose the sale to the court,

not to avoid crediting the 1993 Judgment for the sale, but so that

the credit would be for the deflated sales price.

Rule 60(b), which generally vests a district court with

authority to grant relief from final judgments, provides that

“[t]his rule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, . . . or to

set aside a judgment for fraud upon the court.”2 Asterbadi asserts

that he is entitled to equitable relief from the 1993 Judgment

under both a fraud on the court theory, and through an independent

action in equity.

The doctrine of fraud on the court is a principle to be

narrowly construed and applied, and it embraces “only that species

of fraud which does or attempts to, defile the court itself, or is
3

The Defendants maintain on appeal that the district court

failed to specifically address the fraud on the court theory

because Asterbadi never asserted it there. As Asterbadi’s claim of

fraud on the court is meritless, we need not address whether he

properly presented that theory to the district court.

8

a fraud perpetrated by officers of the court so that the judicial

machinery can not perform in the usual manner its impartial task of

adjudging cases that are presented for adjudication,” such as a

lawyer’s subornation of perjury. See Great Coastal Express, Inc.

v. Int’l Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982)

(emphasis added and internal quotation marks omitted). A party

asserting fraud on the court must establish that the conduct

complained of was part of “a deliberate scheme to directly subvert

the judicial process.” Id.

In awarding summary judgment against Asterbadi, the district

court did not specifically address whether the 1993 Judgment was

obtained through a fraud on the court.3 Viewing the facts of this

case in the light most favorable to Asterbadi, however, it would

not have been within the court’s discretion to grant relief under

a fraud on the court theory. The Defendants’ failure to advise the

court, prior to securing entry of the 1993 Judgment, that the

aircraft had been sold, when considered in light of the Defendants’

subsequent actions (entering into the forbearance agreement and

filing the Notice of Partial Satisfaction), simply does not

constitute the egregious conduct essential to a fraud on the court.

Moreover, the Defendants’ actions cannot be seen as hindering the
9

court’s ability to perform its impartial adjudicatory function.

See Great Coastal, 675 F.2d at 1356-57.

In the end, the Defendants took the steps necessary to

appropriately reduce the 1993 Judgment. No court could reasonably

conclude that the Defendants, in obtaining and then reducing the

1993 Judgment, carried out “a deliberate scheme to directly subvert

the judicial process.” Although the court should have been

notified that the aircraft had been sold, the actions apparent from

this record plainly did not perpetrate a fraud on the court in

connection with the 1993 Judgment.

Finally, in order to sustain an independent action in equity,

Asterbadi must establish the five factors set forth in Great

Coastal: (1) that the 1993 Judgment ought not, “in equity and good

conscience,” be enforced; (2) that he had “a good defense to the

alleged cause of action” underlying the 1993 Judgment; (3) that

“fraud, accident, or mistake” prevented him from obtaining the

benefit of his defense; (4) “the absence of fault or negligence” on

his part; and (5) “the absence of any adequate remedy at law.” See

675 F.2d at 1358 (internal quotation marks omitted). By his own

admission, Asterbadi failed to respond to the 1993 Complaint, even

though he was properly served with it. Accordingly, even if he

could meet the balance of the test, Asterbadi is entirely unable to

satisfy the fourth Great Coastal factor, in that he cannot show

“the absence of fault or negligence” on his part, see id., and he
10

thus cannot maintain an independent action in equity. In these

circumstances, the district court did not abuse its discretion when

it denied Asterbadi’s claim for equitable relief from the 1993

Judgment.

IV.

Pursuant to the foregoing, we affirm the award of summary

judgment made to the Defendants on Asterbadi’s claim for equitable

relief from the 1993 Judgment.

AFFIRMED