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United States District Court, E.D. Pennsylvania

July 21, 2004.


The opinion of the court was delivered by: STEWART DALZELL, District Judge


AND NOW, this 21st day of July, 2004, upon consideration of plaintiff Sharletta Favors's motion for relief from judgment brought under Fed.R.Civ.P. 60(b)(2) and (3) (docket entry # 34), the defendants' response thereto, and Favors's reply brief in support of the motion, and the Court finding that:

(a) On April 5, 2001, defendant Deputy United States Marshal Wright Smith mistakenly arrested Favors in her boyfriend's apartment at 4429 Walnut Street in Philadelphia while attempting to execute a bench warrant for the arrest of one Charlotte Robinson, a fugitive believed to be at large in the Philadelphia area;

  (b) Within a few hours of the arrest, the Marshals released Favors after a fingerprint comparison revealed that she was not, in fact, Robinson;

  (c) Favors subsequently filed this action, and defendant Smith simultaneously answered the complaint and moved for summary judgment on qualified immunity grounds;

  (d) Smith attached a lengthy affidavit to the motion that set forth the reasons why he was looking for Robinson at 4429 Walnut Street and the circumstances that informed his decision to arrest Favors;*fn1

  (e) In response to the motion, Favors argued that summary judgment was inappropriate because there were "numerous material facts and/or inferences from material facts that are in dispute" that implicated the issue whether Smith acted reasonably in arresting her;

  (f) In support of this argument, Favors contended that she and Robinson do not look alike and pointed out that Smith had failed to attach affidavits from Officer Gregory Laszlo and apartment manager Jim Steuber;*fn2

  (g) However, Favors did not forward with any affidavits or new evidence that might contradict Smith's version of the events, and she also declined to file a motion for leave to conduct discovery on the qualified immunity issue;

  (h) On September 16, 2003, we granted the defendants' motion for summary judgment after concluding, inter alia, that Smith's decision to arrest Favors was objectively reasonable;

  (i) Favors appealed this decision, and while she was pursuing her case in the Court of Appeals, she located Mr. Steuber at his new home in Coral Springs, Florida;

  (j) On February 25, 2004, Mr. Steuber signed a declaration that provides an account of the events surrounding Favors's arrest that are strikingly at odds with Agent Smith's heretofore uncontradicted account how he came to believe that Charlotte Robinson was living at 4429 Walnut Street;

  (k) On May 7, 2004, our Court of Appeals granted Favors's motion for leave to file the Rule 60(b) motion now before us;

  (l) Favors's motion argues that she is entitled to relief under Rule 60(b)(2) and (3) on the basis of Mr. Steuber's declaration as well as a letter she has obtained from Scott Smith, who spoke with Agent Smith in his capacity as leasing manager at New Horizons Housing, which manages 4429 Walnut Street;

  (m) Because Favors's two theories of relief demand separate analysis, we examine each in turn;

  (n) Rule 60(b)(2) permits relief from judgment on the basis of newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

  (o) To prevail on a Rule 60(b)(2) motion, the movant must show that she exercised due diligence in obtaining the information, that the evidence is material and not merely cumulative, and that the information would have produced a different result if presented before the original judgment, see Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995); (p) The difficulty here is that Favors has failed to show that she could not have located Messrs. Smith and Steuber before responding to the motion for summary judgment;

  (q) Favors could easily have located Mr. Smith in his office at 41st and Baltimore in Philadelphia;

  (r) Mr. Steuber had apparently moved to Florida by the time the defendants filed their motion for summary judgment;

  (s) However, Favors has provided no reason to believe that Mr. Steuber attempted to conceal his whereabouts in Florida or that, on his way to Florida, he joined the CIA on the hunt for Osama bin Laden, immured himself in a Buddhist monastery in Nepal, or otherwise made himself so unavailable that she could not have tracked him down after securing leave to engage in discovery on the qualified immunity issue;

  (t) We therefore deny Favors's Rule 60(b)(2) motion for failure to show due diligence;

  (u) Rule 60(b)(3) allows a court to relieve a party from final judgment due to "fraud . . ., or other misconduct of an adverse party";

  (v) As the Court of Appeals for the Fifth Circuit has noted, "[t]he purpose of the rule is to afford parties relief from judgments which are unfairly obtained, not those which may be factually incorrect", Diaz v. Methodist Hospital, 46 F.3d 492, 496 (5th Cir. 1995);

  (w) To reopen a judgment under Rule 60(b)(3), the moving party must show, by clear and convincing evidence, "(1) that the adverse party engaged in fraud or other misconduct, and (2) that this conduct prevented the moving party from fully and fairly presenting his case", Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983); see also State Street Bank and Trust Co. v. Inversiones Errazuriz Limitada, ___ F.3d ___, 2004 WL 1336241, at *13 (2d Cir. June 15, 2004) (same); Palmer v. Barram, 184 F.3d 1373, 1380 (Fed. Cir. 1999) (same);

  (x) Moreover, the moving party must show that this fraud is attributable to the party or, at least, to counsel, Stridiron, 698 F.2d at 207;

  (y) Finally, the "due diligence" requirement of Rule 60(b)(2) is inapplicable to Rule 60(b)(3) motions, see Bethel v. McAllister Brothers, Inc., No. 91-2032, 1994 WL 328350, at *3 (E.D. Pa. Jul 11, 1994) (Bechtle, J.); Western Reserve Oil and Gas Co. v. Key Oil, Inc., 626 F. Supp. 948, 951 (S.D. W. Va. 1986); Tas Internat'l Travel Serv., Inc. v. Pan Am. World Airways, Inc., 96 F.R.D. 205, 206 (S.D.N.Y. 1982);

  (z) Here, there is no question that Favors's new witnesses offer accounts of their meetings with Agent Smith that are greatly at odds with his own declaration;

  (aa) However, even if Favors could prove that Agent Smith has engaged in fraud or other misconduct, she has failed to show that this misconduct prevented her from fully and fairly presenting her case;

  (bb) Unlike a party who is unfairly prejudiced by her adversary's concealment of documents or blindsided by the adversary's perjury at trial, see, e.g., Phillips v. Crown Central Petroleum Corp., 556 F.2d 702, 704-05 (4th Cir. 1977), Favors had full notice of Agent Smith's version of events and could have contested it if she had sought leave to engage in discovery — which we certainly would have granted — and then tracked down and interviewed Messrs. Smith and Steuber;

  (cc) Instead, Favors decided not to contest Agent Smith's account of her arrest and wrongly calculated that this Court would defer the qualified immunity issue until the close of discovery, despite the Supreme Court's clear injunction that a court should resolve immunity questions "at the earliest possible stage in litigation", Saucier v. Katz, 533 U.S. 194, 201 (2001);

  (dd) This case thus presents an example of a judgment is, perhaps, factually incorrect but not unfairly obtained;

  It is hereby ORDERED that the motion is DENIED.

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