* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 22 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID PFLUM,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 00-3242

(D.C. No. 99-CV-4093-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR, BALDOCK, and LUCERO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
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Plaintiff David Pflum, proceeding pro se, appeals from an order of the

district court denying his motion, filed pursuant to Fed. R. Civ. P. 60(b), to vacate

its judgment in this case. We affirm.

Mr. Pflum filed a petition in federal district court seeking to quash

summonses issued by the Internal Revenue Service to three financial institutions

seeking information in their possession concerning the years 1994 to 1998. He

asserted that he had not been served with proper notice of the summonses. The

district court denied the petition. Almost two months later, Mr. Pflum filed a Rule

60(b) motion seeking vacation of the district court’s order on the ground that the

government already possessed some of the records it sought in the summonses and

had received and examined some of the summoned documents before the court

issued its order denying his petition. The district court denied relief holding that

even if the government had possessed some of the records, Mr. Pflum could not

prevail as he had not shown a lack of good faith in the government’s actions. See

Rule 60(b)(3) . 

On appeal, Mr. Pflum contends that he does not have to show a lack of good

faith, only that the government already possessed some of the records it sought in

the summonses. We review the district court’s ruling on a Rule 60(b) motion for

abuse of discretion. Servants of the Paraclete v. Does, I-XVI , 204 F.3d 1005,

1009 (10th Cir. 2000). “Relief under Rule 60(b) . . . is extraordinary and may
-3-

only be granted in exceptional circumstances.” Yapp v Excel Corp. , 186 F.3d

1222, 1231 (10th Cir. 1999) (quotation omitted). Under Rule 60(b)(3), Mr. Pflum

must prove the government’s alleged misconduct by clear and convincing

evidence, showing that the government “acted with an intent to deceive or defraud

the court, by means of a deliberately planned and carefully executed scheme.” Id.

(quotations omitted). Mr. Pflum has alleged only that the government had some of

the documents sought in the summonses. He has offered no evidence beyond his

conclusory statement that the investigating officer actually examined the one

packet of documents rather than resealing them and handing them over for

safekeeping as he attested. Mr. Pflum “has not . . . shown that the district court

made a clear and definite error in concluding that [the government]’s behavior did

not rise to the level of Rule 60(b)(3) misconduct.” Id.

Finding no abuse of discretion, the judgment of the United States District

Court for the District of Kansas is AFFIRMED for substantially the reasons stated

by the court in its order of July 6, 2000.

Entered for the Court

Bobby R. Baldock 

Circuit Judge