1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MAX ZWEIZIG,

Plaintiff,

v.

TIMOTHY C. ROTE, et. al.,

Defendants.

No. 3:15-cv-02401-HZ

ORDER

HERNÁNDEZ, District Judge:

Defendant Timothy Rote moves to vacate the Amended Judgment in this case under 

Federal Rule of Civil Procedure 60(d)(3). Def. Mot., ECF 365. Defendant argues that new 

evidence gleaned from state court actions between the parties demonstrate that Plaintiff perjured 

himself in the 2018 trial in this case. Id. at 1. The Court denies Defendant’s motion.

Federal Rule of Civil Procedure 60(b) provides that the court may relieve a party from a 

final judgment for six reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

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2 – OPINION & ORDER

(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.

Courts also have “inherent equity power to vacate judgments obtained by fraud.” U.S. v. Estate 

of Stonehill, 660 F.3d 415, 443 (9th Cir. 2001). Courts “exercise the power to vacate judgments 

for fraud on the court with restraint and discretion, and only when the fraud is established by 

clear and convincing evidence.” Id. at 443–44 (internal citations and quotations omitted).

“Fraud on the court” should . . . embrace only that species of fraud which does or 

attempts to, defile the court itself, or is a fraud perpetuated 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.”

Id. at 444 (quoting In re Intermagnetics Am., Inc., 926 F.2d 912, 916 (9th Cir. 1991)).

First, Defendant’s Rule 60 motion is untimely. In order to bring a motion under Rule 

60(b)(3), the motion must be made “within a year after entry of the judgment.” Fed. R. Civ. P. 

60(b)(c)(1). The Amended Judgment was filed on September 20, 2021. Am. J., ECF 361. 

Defendant filed his original motion over a year later, on November 15, 2022.

Second, Defendant has not demonstrated that Plaintiff engaged in fraud. The Court has 

reviewed Defendant’s exhibits and argument and finds no evidence that Plaintiff committed

perjury or that Plaintiff’s counsel engaged in a scheme to defraud the Court by moving to 

exclude certain pieces of evidence. Moreover, the alleged perjury is not relevant to the 

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3 – OPINION & ORDER

underlying case, which sought to answer one narrow question: whether Defendant’s blogging 

activities constituted whistleblower retaliation against Plaintiff for participating in an underlying 

arbitration. Defendant’s motion is denied.

CONCLUSION

The Court DENIES Defendant’s Amended Motion to Vacate Judgment [365]. 

Defendant’s Motion to Vacate Judgment [363] is DENIED as moot.

IT IS SO ORDERED.

DATED:_______________________.

 

______________________________

MARCO A. HERNÁNDEZ

United States District Judge

March 17, 2023

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