UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

____________________________________ 

 ) 

DAVID M. BOWIE, Pro Se ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 03-948 (RCL) 

 ) 

CHARLES C. MADDOX et al. ) 

 ) 

 Defendants. ) 

____________________________________)

MEMORANDUM OPINION

Plaintiff David M. Bowie moves under Federal Rule of Civil Procedure 60 for 

relief from this Court’s order of March 31, 2008 denying plaintiff’s motion for judgment 

as a matter of law and motion for a new trial. Plaintiff also moves for post-judgment 

discovery. Upon consideration of the motions [150, 159], the oppositions [155, 160], the 

replies [158, 161], the entire record of the case, and the applicable law, the Court 

concludes that the motions should be denied. 

I. Background 

 In August 2002, plaintiff was terminated from his position in the District of 

Columbia Office of the Inspector General (“DCOIG”). (Mem. Op. [146] at 1.) Plaintiff 

filed suit, alleging wrongful termination and violation of other federal and District of 

Columbia employment and civil rights laws. (Complaint [1] at 50–51.) On May 25, 

2007, the jury returned a verdict for defendants on each claim. (Verdict Form [120] at 1–

5.) Plaintiff moved for judgment as a matter of law or, in the alternative, for a new trial. 

(Mot. for J. as a Matter of Law [124] at 1.) This Court denied the motion on March 31, 
2

2008. (Order [147] at 1.) On March 31, 2009 at 10:57 PM, plaintiff filed a motion for 

relief from that order. (Pl.’s Mot. for Relief [150-2] Ex. R.) 

 Plaintiff alleges that the verdict and judgment in his case were procured through 

fraud when a fraud perpetrated in a separate case entered the proceedings. (Pl.’s Mot. for 

Relief [150] at 2.) In that separate case, Johnson v. Maddox, 270 F. Supp. 2d 38 (D.D.C. 

2003), aff’d sub nom. Johnson v. Williams, 117 F. App’x. 769 (D.C. Cir. 2004), Johnson 

sued his former DCOIG supervisor for wrongful termination and retaliation. An affidavit 

was submitted on behalf of plaintiff, who worked at the DCOIG at the time of Johnson’s 

dismissal. (Pl.’s Mot. for Relief [150] Exs. K, M.) Plaintiff asserts that he did not sign or 

otherwise approve the affidavit, which discussed plaintiff’s relationship with Johnson and 

the events leading to Johnson’s termination. (Id. Exs. H, M.) Plaintiff contends that the 

affidavit was a forgery and that defendants and their attorneys lied about its authenticity. 

(Id. at 6–10.) Because this Court “relied upon the fraudulent assertions of defendants in 

Johnson v. Maddox,” plaintiff contends that he was denied a “fair and impartial trial” and 

“the ability to fairly and fully present his case.” (Id. at 3.) He also claims defendants and 

their attorneys perpetrated various other acts of fraud, which are discussed below. 

II. Legal Standard 

 Plaintiff proceeds pro se in this matter, therefore the Court will construe his 

filings liberally. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). 

 Plaintiff’s fraud claims arise under the Court’s statutory and equitable powers. 

First, Rule 60(b)(3) permits a court to relieve a party from a “final judgment, order, or 

proceeding” for “fraud . . . misrepresentation, or misconduct by an opposing party.” 
3

(Pl.’s Mot. for Relief [150] at 1.) Second, the Court’s equitable power permits it to set 

aside judgments based on “fraud on the court.”1 (Id. at 2.) Accordingly, plaintiff seeks 

relief from judgment, an order to schedule discovery, and leave to file independent 

actions for fraud upon other courts. (Id. at 28; Pl.’s Mot. for Disc. [159] at 1.) 

 A motion for relief from judgment under Rule 60(b)(3) must be filed “within a 

reasonable time” and “no more than a year after the entry of the judgment or order . . . .” 

FED. R. CIV. P. 60(c)(1). “What constitutes a ‘reasonable time’ depends upon the facts of 

each case, taking into consideration the interest in finality, the reason for the delay, the 

practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to 

other parties.” Osborne v. Homeside Lending, Inc., 379 F.3d 277, 283 (5th Cir. 2004) 

(quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)). 

 “Fraud on the court” is a claim that exists to protect the integrity of the judicial 

process, and therefore a claim for fraud on the court cannot be time-barred. See 12 

JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 60.21[4][g] & n.52 (3d ed. 

2009) (citing Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)). Although the 

requirements for a successful claim of fraud on the court elude precise definition, several 

guiding principles emerge from the case law. First, the fraud must be egregious.2 

“‘Fraud upon the court’ . . . embrace[s] only that species of fraud which does or attempts 

to[] subvert the integrity of the court itself, or is a fraud perpetrated by officers of the 

 

1

 FED. R. CIV. P. 60(d)(3) provides that “[t]his rule does not limit a court’s power to set aside judgment for 

fraud on the court.” See also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245–46 (1944) 

(courts possess the equitable power “to set aside fraudulently begotten judgments”). 

2

 Fraud on the court does not encompass “ordinary fraud,” and thus must be distinguished from Rule 

60(b)(3), which permits relief from judgment even for unintentional misrepresentations. MOORE ET AL., 

supra, § 60.43[1][a]. “[I]f fraud that may form basis of independent action ‘is not kept within proper limits 

but is ballooned to include all or substantially all species of fraud within 60(b)(3) then the time limitation 

upon 60(b)(3) motions will be meaningless.’” Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 49 

(1st Cir. 1995) (quoting 7 MOORE ET AL., FEDERAL PRACTICE ¶ 60.33 (1995)). 
4

court so that the judicial machinery cannot perform in the usual manner its impartial task 

of adjudging cases that are presented for adjudication, and relief should be denied in the 

absence of such conduct.” Synanon Church v. United States, 579 F. Supp. 967, 974 

(D.D.C. 1984) (quoting 7 MOORE ET AL., FEDERAL PRACTICE ¶ 60.33 (1995)); see also

England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960) (fraud on the court requires “an 

unconscionable plan or scheme which is designed to improperly influence the court in its 

decision”) (citing Hazel-Atlas, 322 U.S. 238). An “indispensable” element is that the 

fraud “prevented a party from presenting his case.” Reintjes, 71 F.3d at 48 (citing 

Chicago, R.I. & P. Ry. v. Callicotte, 267 F. 799, 810 (8th Cir. 1920)). Second, the 

perpetrator of the fraud must possess a sufficient mental state. One list of essential 

elements requires the fraudulent conduct to be “intentionally false, wilfully blind to the 

truth, or [] in reckless disregard for the truth . . . .” Demjanjuk v. Petrovsky, 10 F.3d 338, 

348 (6th Cir. 1993); cf. Sununu v. Philippine Airlines, Inc., 638 F. Supp. 2d 35, 41 

(D.D.C. 2009) (listing knowledge of falsity and intent to deceive as elements of common 

law fraud). Third, the extraordinary step of setting aside a judgment requires “clear and 

convincing” evidence of fraud on the court. Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 

1476–77 (D.C. Cir. 1995). 

III. Discussion 

A. Timeliness of Plaintiff’s Rule 60(b)(3) Motion

 The order from which plaintiff seeks relief was entered on March 31, 2008. 

Plaintiff asserts that he filed his motion for relief from that judgment exactly one year 

later on March 31, 2009. Defendants argue that the motion was not actually filed until 
5

April 6, 2009, and not docketed until April 28.3

 (Defs.’ Mem. of P. & A. [155] at 1–2.) 

If the motion was filed later than March 31, 2009, it would have to be denied as untimely 

because Rule 60(b)’s one-year time limit is inflexible. See Carr v. District of Columbia, 

543 F.2d 917, 925–26 (D.C. Cir. 1976). The Court need not resolve this dispute because 

plaintiff’s motion was not filed “within a reasonable time,” as required by Rule 60(c)(1). 

 A movant must offer sufficient justification for delaying a Rule 60(b) motion 

almost until the one-year deadline. See White v. Am. Airlines, Inc., 915 F.2d 1414, 1425 

(10th Cir. 1990). Plaintiff argues that four grounds justify his delay. First, he argues that 

much of the information he needed to establish fraud upon the court came from the 

Johnson litigation, to which he was not a party. (Pl.’s Reply [158] at 2.) Johnson 

appealed his case upon judgment by the District Court, and thus “the precise contours of 

the fraud upon the court that serves as the basis for Plaintiff’s [R]ule 60 motion were 

unknown to him” until that appeal. (Id.) Second, plaintiff, who is proceeding pro se, has 

experienced “significant confusion” regarding the correct procedures to follow because 

the alleged fraud was visited upon multiple courts. (Id. at 2–3.) Third, because the order 

from the Court of Appeals granting him leave to file a Rule 60 motion was issued on 

March 19, 2009, he argues the dispositive question of timeliness is whether the twelveday period from March 19 to the date of his filing constituted an unreasonable delay. (Id.

at 4.) Finally, plaintiff argues he had to spend considerable time drafting his motion and 

obtaining the documents and records supporting his arguments. (Id. at 3–4.) The Court 

addresses each argument in turn. 

 

3

 Plaintiff first filed by e-mailing his documents to the Court instead of using the Court’s Electronic 

Document Filing System. (Pl.’s Mot. for Relief [150-2] Ex. R.) The clerk’s office informed him the next 

day that he did not have permission to file electronically. (Id.) He submitted paper filings, which the Court 

received after March 31. It is disputed whether plaintiff had permission to file electronically (Pl.’s Reply 

[158] at 1–2) and, if he did, whether sending filings to the Court by e-mail constitutes a valid filing. 
6

1. Information Needed for the Motion Was Unavailable 

 Plaintiff asserts that much of the information required to establish fraud under 

Rule 60(b)(3) was unknown to him until a case to which he was not a party, Johnson v. 

Maddox, came before the Court of Appeals. (Id. at 2.) The Johnson litigation is relevant 

here, plaintiff argues, because fraud perpetrated in that case entered into plaintiff’s own 

case. (Pl.’s Mot. for Relief [150] at 2–3.) The Court is not convinced that information 

from the Johnson case was actually unavailable to plaintiff. 

Plaintiff’s basic argument is that defendants submitted a fraudulent affidavit in his 

name in the Johnson case and then lied about the authenticity of that affidavit throughout 

those proceedings. (Pl.’s Mot. for Relief [150] at 6–10.) It is unclear how plaintiff 

remained unaware of this purported fraud and why the information he needed to establish 

the fraud remained unavailable until Johnson v. Maddox came before the Court of 

Appeals. (See Pl.’s Reply [158] at 2.) Plaintiff has submitted one exhibit related to the 

Johnson case as it was presented to the Court of Appeals—a brief written on behalf of the 

defendants in that case, some of whom are also defendants in plaintiff’s case—but that 

exhibit is dated April 23, 2004, about four years before final judgment was entered in 

plaintiff’s case. (Pl.’s Mot. for Relief [150-2] Ex. O.) Unless plaintiff was prevented 

from accessing the court filings in Johnson v. Maddox for the past five years (which he 

does not allege), the Court does not see how the appeal of the Johnson case is relevant to 

his claim of not having the information needed to support his argument. 

The Court must reject plaintiff’s claim that he did not have the information he 

needed to support his fraud argument. Plaintiff states that he was aware as early as 2003 

that defendants may have perpetrated a fraud. (Pl.’s Mot. for Relief [150] at 10–11.) 
7

Plaintiff testified before Magistrate Judge Facciola that the affidavit submitted on his 

behalf in the Johnson case was not actually his. (Id. at 10.) He later stated that though he 

was not prepared at that time to accuse anyone of fraud, he knew there was “something 

wrong.” (Id. Ex. M at 67.) Thus, at the time of judgment in plaintiff’s case in 2008, he 

had known for at least four years that a fraud may have occurred. Plaintiff’s one-year 

delay in filing a Rule 60 motion therefore could not have been reasonable. See Osborne,

379 F.3d at 283 (“What constitutes a ‘reasonable time’ depends upon the facts of each 

case, taking into consideration . . . the practical ability of the litigant to learn earlier of the 

grounds relied upon . . . .”); cf. United States v. Cleaver, 319 F. App’x. 728, 731 n.2 (10th 

Cir. 2009) (two-year delay in filing Rule 60(b)(6) motion not reasonable when movant 

knew immediately of his claim at the time judgment was rendered). To the extent that 

plaintiff was “ambushed” and “thrown for a loop” during his cross-examination before 

Magistrate Judge Facciola (Pl.’s Mot. for Relief [150] at 11), the Court finds that mere 

surprise is insufficient grounds for a one-year delay, especially when the “ambush” in 

question occurred four years before judgment was rendered in plaintiff’s case. 

2. Pro Se Movant Experienced “Significant Confusion”

 Plaintiff argues that the one-year delay in filing his Rule 60 motion resulted from 

the “unique nature of this case,” which caused him to experience “significant confusion” 

in how to pursue his fraud claim. (Pl.’s Reply [158] at 2.) Because the alleged fraud was 

perpetrated upon the Equal Employment Opportunity Commission, three district court 

judges, and the Court of Appeals, he argues, he did not know where to file his motion, 
8

even after researching the issue. (Id. at 2–3.) He ultimately filed with the Court of 

Appeals, which denied his motion without prejudice on March 18, 2009. (Id. at 3.) 

To the extent plaintiff argues—coming as a pro se plaintiff with no formal legal 

training—that his level of legal ability serves as grounds for a more relaxed standard of 

reasonableness, the Court cannot validate such a proposition. Although the Supreme 

Court has relaxed certain standards and rules when confronted with pro se filings by 

prisoners in criminal cases, it “ha[s] never suggested that procedural rules in ordinary 

civil litigation should be interpreted so as to excuse mistakes by those who proceed 

without counsel.”4

 McNeil v. United States, 508 U.S. 106, 113 (1993). 

Although the Supreme Court’s language in McNeil does not appear to act as a 

complete bar to an untrained pro se litigant being held to a lower standard than a licensed 

attorney, this case does not present circumstances compelling such a standard. Plaintiff 

had been representing himself for almost five years when the final judgment was 

rendered in his case. (See Compl. [1] at 1; Order & J. [148] at 1.) During that time, he 

must have become aware of the Court’s desire for speedy resolution of cases and the 

unforgiving standard for filing deadlines. He also must have developed a sense that the 

Court does not lightly forgive a lawyer’s failure to research and follow the correct 

procedures regardless of how complex the issue is. If plaintiff truly was having difficulty 

determining the correct procedure, the Court finds it implausible that he could not have 

consulted with an attorney for a modest fee or asked one of the numerous lawyers he 

must have come into contact with as a former federal law enforcement agent. 

 

4 McNeil deals with a filing deadline that has an absolute time limit rather than with the more flexible 

“reasonableness” standard at issue here. Nonetheless, the Supreme Court’s ruling was predicated on 

“evenhanded administration of the law,” which remains a valid principle here. 508 U.S. at 113 (quoting 

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). 
9

3. Time Period for Measuring Reasonableness of Delay 

 Plaintiff argues that, because he originally filed a Rule 60(b) motion with the 

Court of Appeals, and because it did not rule on his motion until March 18, 2009, the 

reasonableness of his delay in filing should be measured from that date rather than from 

when final judgment was rendered in his case on March 31, 2008. (Pl.’s Reply [158] at 

3–4.) Plaintiff does not cite and the Court has been unable to find any authority 

supporting that proposition. The timeliness of a Rule 60 motion is universally measured 

from the date of the judgment being attacked. See McMillian v. District of Columbia, 

241 F.R.D. 12, 14 (D.D.C. 2004) (collecting cases). As explained above, the Court will 

not excuse a pro se plaintiff’s procedural missteps in a civil case. Plaintiff argues he had 

to obtain leave from the Court of Appeals to file his Rule 60 motion after appealing his 

case (Pl.’s Reply [158] at 3), but he should have considered how an appeal would affect 

the timeliness of a Rule 60 motion. This conclusion also disposes of plaintiff’s claim that 

his delay is excused by his need to take time to draft his motion and obtain supporting 

documents and records once the Court of Appeals granted him leave to file. (Id. at 4.) 

4. Conclusion 

 Plaintiff filed a Rule 60 motion with little over an hour before the one-year time 

limit ran out. (Pl.’s Mot. for Relief [150-2] Ex. R.) Plaintiff did not adequately justify 

his delay and was already aware of the grounds upon which his motion relied. Balancing 

these factors against the interest in finality and prejudice to the defendants, Osborne, 379 

F.3d at 283, the Court denies plaintiff’s claims arising under Rule 60(b) as untimely filed. 
10

B. Fraud on the Court 

 Plaintiff alleges that defendants’ submission of a fraudulent affidavit in the 

Johnson litigation constituted fraud on the court when the Court “relied upon the 

fraudulent assertions of defendants” arising out of that separate case. (Pl.’s Mot. for 

Relief [150] at 2–3.) 

 Here, plaintiff’s claim of fraud on the court must be denied. First, plaintiff does 

not provide clear and convincing evidence of conduct that rises to the level of fraud on 

the court or of knowing or reckless misstatements on the part of defendants and their 

counsel. Second, he was aware of a possible fraud throughout the proceedings and thus 

was not prevented from presenting his case fully and fairly. 

1. Plaintiff Does Not Prove Fraud On The Court By Clear And Convincing Evidence 

 To constitute fraud on the court, the fraud must be part of an “unconscionable 

plan or scheme,” England, 281 F.2d at 309, or “subvert the integrity of the court itself.” 

Synanon Church, 579 F. Supp. at 974. Such a plan cannot be garden variety fraud; it 

must rise to the level of bribing a judge, jury tampering, designing a scheme intended to 

deceive the court, or involvement of an officer of the court in perpetrating a fraud. See

Lockwood, 46 F.R.D. at 632 (collecting cases). The fraudulent act must be “intentionally 

false, wilfully blind to the truth, or [] in reckless disregard for the truth . . . .” Demjanjuk, 

10 F.3d at 348. Plaintiff presents a litany of allegations about the purported fraud (Pl.’s 

Mot. for Relief [150] at 2–21), but fails to provide clear and convincing evidence that the 

alleged misrepresentations meet these requirements. See Shepherd, 62 F.3d at 1476–77. 
11

a. Plaintiff states that defendants lied when they told the Court of Appeals, Judge 

Urbina, and Magistrate Judge Facciola that they had submitted plaintiff’s affidavit to the 

EEOC and had in fact not done so. (Pl.’s Mot. for Relief [150] at 6, 14–15.) However, 

plaintiff’s claims are nothing more than bare allegations and hypotheses. For example, 

he asserts that the status of one of defendants’ attorneys as a deputy in the Office of 

Corporation Counsel by itself constitutes proof that an officer of the court asserted that 

plaintiff’s affidavit was submitted to the EEOC while knowing that assertion to be false. 

(Id. at 6.) Although her status may indicate that she is an officer of the court, it does 

nothing to prove the other elements of plaintiff’s assertion. Such non sequiturs permeate 

plaintiff’s motion, but nowhere does he provide clear and convincing evidence that 

defendants’ representations were more than mere oversight or mistake. 

b. Plaintiff asserts that defendants falsely represented the authenticity of 

plaintiff’s affidavit before Magistrate Judge Facciola. (Id. at 7.) First, he states that an 

affidavit submitted by one of the defendants’ attorneys, Gail Davis, proves that an 

attorney at DCOIG perjured herself when she testified about the authenticity of plaintiff’s 

affidavit. (Id. at 9.) He also claims that the information in the affidavit was “deliberately 

withheld from the Facciola court.” (Id. at 8.) Second, he provides e-mails between 

himself and the DCOIG attorney that are supposed to prove the falsity of her testimony. 

(Id. Exs. B, C.) Even if the attorney’s statements were false, plaintiff neglects that the 

events about which she testified occurred in 2000, three years before her testimony. (See 

id. at 9.) Plaintiff has failed to clearly and convincingly prove that the discrepancies 

resulted from anything more than mistake or the attorney’s faulty memory. Furthermore, 
12

if defendants failed to give information to Magistrate Judge Facciola, plaintiff submits no 

proof that this omission was knowing or reckless. 

c. Plaintiff asserts that the affidavit submitted in his name was a forgery. (Id. at 

10.) His evidence consists of typographic differences between the purported forgery and 

documents that he submitted, his own testimony before Magistrate Judge Facciola, and 

circumstantial evidence regarding the dates of the various affidavits and signatures to 

which plaintiff refers. At best, plaintiff’s evidence raises the mere possibility that 

defendants engaged in forgery, but he does not present the sort of unassailable evidence 

required to overcome the finality of a judgment. Cf. Lockwood, 46 F.R.D. at 634 (“[T]he 

law favors an end to lawsuits rather than a free reopening and retrial of them.”). 

d. Plaintiff further asserts that defendants perpetrated fraud on the EEOC when 

they made reference to plaintiff’s affidavit but had not submitted it to the EEOC. (Pl.’s 

Mot. for Relief [150] at 17.) Again, plaintiff makes only bare allegations and does not 

clearly and convincingly prove that defendants’ statement was more than mere mistake. 

e. Plaintiff takes issue with the Court’s reliance on Gail Davis’s statement in a 

2004 affidavit that “[plaintiff] was free to submit his affidavit on Johnson’s or his own 

behalf and independent from the OIG’s position statement.” (Id. at 18, Ex. P.) He argues 

that none of the defendants alerted plaintiff that his affidavit had not been sent to the 

EEOC. (Id. at 18.) Although plaintiff might have been less likely to submit his affidavit 

without knowledge that it had not already been submitted, he fails to show an 

affirmatively false statement on Davis’s part or that any defendant had an affirmative 

duty to tell him the affidavit had not been sent. 
13

f. Plaintiff claims that Gail Davis lied in a 2004 affidavit when she stated that 

plaintiff was out of his office when she met with defendants Maddox and Andersen. (Id.

at 19, Ex. P.) Plaintiff provides no proof that this statement was untrue. He merely states 

that Davis made no attempt to contact him before or during these meetings. Even if her 

statement was not true, plaintiff provides no clear and convincing evidence that her 

misstatement was more than a mistake or lapse of memory. 

g. Plaintiff argues that Davis fraudulently stated in a 2004 affidavit that plaintiff 

edited the affidavit she prepared on his behalf. (Id. at 19–20, Ex. P.) He argues this 

statement is fraudulent because he clearly refused to sign the affidavit she prepared and 

instead drafted his own. (Id. at 20.) Here, Davis may have been under the impression 

that plaintiff was cutting out her words in the affidavit and replacing them with his own, 

which is a valid definition of “edit.” She may also have mistakenly used the word “edit” 

when she meant something else. Plaintiff does not clearly and convincingly prove any 

knowing or reckless deception on her part. 

h. Plaintiff argues that Branson and Andersen were working on the allegedly 

forged affidavit two weeks after the EEOC filing deadline had passed for the sole purpose 

of providing Maddox a stronger legal defense in the Johnson case. (Id. at 20.) He also 

argues that they circumvented EEOC instructions only with respect to plaintiff’s 

affidavit, which evinces fraudulent intent. (Id. at 21.) Plaintiff provides no evidence to 

support these conclusory assertions. 

i. Plaintiff makes much of the fact that officers of the court were involved in some 

of the alleged misrepresentations. (Pl.’s Reply [158] at 10–13.) Even if they did make 

misrepresentations, their status as officers of the court is not enough to prove fraud on the 
14

court. Some form of intentional misconduct must be demonstrated. See Demjanjuk, 10 

F.3d at 348; In re Intermagnetics Am., Inc., 926 F.2d 912, 916–17 (9th Cir. 1991). As 

explained above, plaintiff has failed to clearly and convincingly show that any intentional 

misconduct has occurred. 

j. Plaintiff’s “newly discovered evidence” is similarly deficient. The affidavit by 

Robert Isom and accompanying evidence are supposed to prove that the re-inspection of 

plaintiff’s division at DCOIG, which formed the basis of his termination, was pretextual. 

(See Pl.’s Mot. for Relief [150] at 21–27, Exs. A-1 to -6.) Even assuming these exhibits 

prove fraudulent acts by the defendants, they do not show fraud on the court. Plaintiff 

does not provide clear and convincing evidence that defendants created any of the 

documentary evidence for the purpose of deceiving this or any other court, nor that 

defendants submitted these documents to the Court while knowing they were false. 

To the extent that plaintiff’s new evidence supports a Rule 60(b)(2) motion for 

“newly discovered evidence that, with reasonable diligence, could not have been 

discovered in time to move for a new trial under Rule 59(b),” such a motion would be 

barred as untimely. As explained above, plaintiff’s motion was not filed “within a 

reasonable time.” FED. R. CIV. P. 60(c)(1). 

2. Plaintiff Was Able to Present His Case Fully and Fairly 

In Reintjes, the First Circuit denied an independent action for relief from 

judgment when the movant only submitted proof of an adverse witness’s perjury at trial. 

71 F.3d at 46. The court reasoned that perjury did not amount to fraud on the court in 

part because the movant had the opportunity to counteract perjury through discovery and 
15

cross-examination.5

 Id. at 49. This case presents an analogous situation. Ever since the 

Johnson trial in 2003, plaintiff was aware of possible fraud by defendants. As a witness 

in that case, he challenged the authenticity of the affidavit that was submitted in his 

name. (Pl.’s Mot. for Relief [150] Ex. M.) He stated that, although he was not prepared 

to level any accusations of fraud at that time, he knew there was “something wrong.” (Id.

at 11, Ex. M at 67.) Thus, during the preparation for trial in his own case in 2007, 

plaintiff had both knowledge of possible fraud and the opportunity to engage in discovery 

to uncover fraud and to raise allegations thereof. Because the alleged fraud did not 

prevent plaintiff from presenting his case fully and fairly, Reintjes, 71 F.3d at 48, his 

claim of fraud on the court must be denied. 

C. Plaintiff’s Motion for an Order to Schedule Discovery

 Plaintiff requests that the Court order discovery to permit him to further develop 

his claims of fraud on the court.6

 Plaintiff cites to Pearson v. First NH Mortgage Corp., 

200 F.3d 30, 35 (1st Cir. 1999), for the proposition that the Court has the discretion to 

permit discovery proceedings “once the record evidence demonstrates a ‘colorable’ claim 

of fraud.” Plaintiff does not present a colorable claim, therefore discovery is denied. 

 “Colorable” is defined as “appearing to be true, valid, or right.” BLACK’S LAW 

DICTIONARY 282 (8th ed. 2004). Plaintiff has so far presented only bare allegations and 

evidence that points to the mere possibility of fraud on the court, but presents no evidence 

 

5

 The Reintjes court does imply that involvement of an officer of the court in perjury could constitute fraud 

on the court even if the adverse party had the opportunity to cross-examine witnesses. 71 F.3d at 49. 

Although plaintiff alleges perjury and submission of fraudulent documents by officers of the court, he fails 

to provide clear and convincing evidence of intentionally or recklessly false statements or conduct. 

Demjanjuk, 10 F.3d at 348. 

 

6

 Because plaintiff’s Rule 60(b)(3) claim of fraud or misrepresentation is untimely, discovery at this point 

could only support a claim of fraud on the court. 
16

that makes his claim “appear to be true.” Cf. Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 556–57 (2007) (bare allegations of parallel conduct and conspiracy are insufficient 

to state a claim under the Sherman Act). To permit discovery now would be to subject 

defendants to a costly and time-consuming process without an iota of rational 

justification, and the Court will not engage in such an abuse.7

 Plaintiff’s request for discovery is also undermined by the fact that many of his 

claims revolve around issues that he should have addressed at or before trial. Plaintiff 

was aware of a possible fraud as early as 2003. (Pl.’s Mot. for Relief [150] at 10–11.) 

He had every opportunity before trial to engage in discovery to determine the existence of 

fraud and to raise that issue with the Court. The defendants should not be subjected to 

discovery when plaintiff failed to take advantage of that opportunity. 

D. Leave to File Separate Independent Actions For Fraud Upon Other Courts 

 This Court does not have jurisdiction to grant or deny leave to request relief from 

judgments rendered by other courts. 

IV. Conclusion 

For the foregoing reasons, the plaintiff’s Motion for Relief from Judgment [150] 

and Motion for Discovery [159] will be DENIED. 

 A separate order shall issue this date. 

 

7

 Although plaintiff correctly states that “the law favors discovery and correction of corruption of the 

judicial process even more than it requires an end to lawsuits” (Pl.’s Reply [161] at 3 (citing Lockwood v. 

Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)), plaintiff appears to misunderstand the meaning of this 

proposition. It refers to the absence of a time limit on filing a claim for fraud on the court, not to any 

standard for permitting discovery. 
17

Date

January 6, 2010. 

 _____/s/_______________ 

 ROYCE C. LAMBERTH 

 Chief Judge 

 United States District Court