653 F2d 353 Lester v. Empire Fire and Marine Insurance Company

653 F.2d 353

Dorey LESTER, d/b/a Union 76 Truck Stop, Appellant,
v.
EMPIRE FIRE AND MARINE INSURANCE COMPANY, Appellee.

No. 80-1789.

United States Court of Appeals,
Eighth Circuit.

Submitted June 18, 1981.
Decided July 10, 1981.

C. H. Parsons, Jr., Parsons & Mitchell, P. C., Dexter, Mo., for appellant Dorey Lester.

Byron D. Luber, Ward & Reeves, Caruthersville, Mo., for appellee, Empire Fire and Marine Ins. Co.

Before LAY, Chief Judge, and BRIGHT and STEPHENSON, Circuit Judges.

ORDER OF AFFIRMANCE

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1

Seventeen months after the district court entered final judgment dismissing his claim for fire damage to property insured by defendant-appellee Empire Fire and Marine Insurance Co., plaintiff-appellant Dorey Lester brought this motion to set aside the judgment for fraud under Fed.R.Civ.P. 60(b). As grounds for relief, Lester alleged that a material witness, who testified on behalf of defendant-appellee that the fire had been deliberately set, falsely and fraudulently stated his qualifications as an expert on arson.

2

The district court1 denied the motion as untimely, ruling that Rule 60(b) (6) governs a motion to set aside a judgment for fraud by a nonparty and that such a motion must be filed within one year after the judgment, consistent with the time limitation of Rule 60(b)(3) governing fraud by a party.2 In essence, the court concluded that although Rule 60(b)(6) states only that the motion be filed within "a reasonable time," it would be unreasonable, absent special circumstances, to permit reopening of a judgment on grounds of third-party fraud when a similar motion based on fraud by a party would be barred by Rule 60(b)(3).

3

Under the particular facts and circumstances of this case, we agree with the district court's conclusion. Accordingly, we affirm the judgment on the basis of the district court's well-reasoned opinion, as published in 87 F.R.D. 466 (E.D.Mo.1980).

1

The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri

2

Rule 60(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * * or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.