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Estate of Brewington v. Lombardo

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


September 29, 2010

THE ESTATE OF PERRY BREWINGTON
v.
JOSEPH LOMBARDO, ET AL.

The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge

MEMORANDUM ORDER

AND NOW, this 29th day of September, 2010, upon consideration of plaintiff's Motion For a New Trial Pursuant to Federal Rules of Civil Procedure 59(a) and 60(b) (the "Motion") (Doc. No. 75), and defendants' response thereto (Doc. No. 76), it is hereby

ORDERED that the motion is DENIED.

Plaintiff relies exclusively on Fed. R. Civ. P. 60(b)(3) in support of the Motion. Rule 60(b)(3) provides that the court may relieve a party from a final judgment for fraud, misrepresentation, or other misconduct of an adverse party. A motion for relief from a judgment under Rule 60(b) is "addressed to the sound discretion of the trial court." Wagner v. Pennsylvania R.R. Co., 282 F.2d 392, 397 (3d Cir. 1960). A party seeking relief under Rule 60(b)(3) on the ground that the opposing party engaged in fraud, misrepresentation, or other misconduct must prove fraud by clear and convincing evidence. Simons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir. 1983); Total Containment, Inc. v. Environ Products, Inc., 1996 WL 239877, at *2 (E.D. Pa. May 6, 1996).

Plaintiff has failed to show by clear and convincing evidence that defendants engaged in fraud or misrepresentation. Plaintiff claims that there are inconsistencies between defendants' deposition testimony taken during discovery and their testimony at trial. Plaintiff alleges that the officers testified during discovery that if the Protection From Abuse Order ("PFA Order") required the officers to confiscate a weapon from a suspect, they would be required to do so. At trial, the evidence showed that the PFA Order issued in this case only required the defendant to "relinquish the firearm" to the Sheriff of Philadelphia County. There was no explicit order from the court to the police officers to seize the firearm. Accordingly, this court finds that defendants did not make any misrepresentations or commit a fraud upon the court.*fn1

Therefore, the court cannot disturb the verdict of the jury, and the Motion must be DENIED.


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