Rule 60(b)(2) motion to vacate a judgment in United States District Court

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is the topic of this blog post.

A Rule 60(b)(2) motion to vacate a judgment in United States District Court is filed using the  grounds of newly discovered evidence. Rule 60(b)(2) refers to the Federal Rules of Civil Procedure.

Rule 60(b)(2) states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

A district court may vacate a prior judgment where the court is presented with newly discovered evidence, an intervening change of controlling law, manifest injustice, or where the prior order was clearly erroneous. Fed. R. Civ. P. 60(b)(1)-(6); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998); School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) see also Stewart v. Dupnik, 243 F.3d 549, 549 (9th Cir. 2000).

A Rule 60(B)(2) motion to vacate a judgment is appropriate if you can meet the burden required of the moving party as detailed in this blog post.

Requirements for a Rule 60(B)(2) motion to vacate a judgment in United States District Court.

The party filing a Rule 60(b)(2) motion to vacate a judgment in United States District Court must meet their burden of showing that,

The newly discovered evidence was discovered after the trial;

They exercised diligence to discover the evidence;

The evidence is not just cumulative or impeaching evidence;

The evidence is material;

The evidence would most likely produce a different result if the judgment were set aside, and

The evidence could not have been discovered in time to move for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure which states that, “A motion for a new trial must be filed no later than 28 days after the entry of judgment.”

And several Circuit Courts of Appeal have also stated in published decisions that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence.

If you become aware of new evidence that was material to your claim or defense and could not have been discovered earlier you need to contact an experienced civil litigation attorney as soon as possible to increase the probability that your motion will be granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(2) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

Answer to a complaint in United States District Court

An answer to a complaint in United States District Court is the topic of this blog post.

An answer to a complaint in United States District Court must be filed within the time period specified in the Federal Rules of Civil Procedure unless you have obtained a stipulation from the opposing party or their attorney, or an order of the court granting you an extension of time to answer.

An answer to a complaint in United States District Court can also include a counterclaim against the plaintiff, or a crossclaim against other parties that involves the same set of facts alleged in the complaint.

Deadline to file an answer to a complaint in United States District Court.

Rule 12 of the Federal Rules of Civil Procedure specifies the time period that a defendant has to answer or otherwise respond, that time period is 21 calendar days after being served with the summons and complaint, although there are exceptions which are listed in Rule 12.

Rule 12 states in pertinent part that,

“(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.”

Requirements for an answer to a complaint in United States District Court.

An answer to a complaint in United States District Court should specifically deny each statement in the complaint that is untrue and admit each statement that is true.

Rule 8 of the Federal Rules of Civil Procedure states in pertinent part that,

“(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

  • accord and satisfaction;
  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata;
  • statute of frauds;
  • statute of limitations; and
  • waiver

It is very important that an answer to a complaint in United States District Court that you specifically deny each allegation or part of an allegation of the complaint that is untrue as any allegations of the complaint that are not specifically denied in the answer will be deemed admitted.

If you do not have sufficient information or belief as to whether to admit or deny an allegation in the complaint you can deny the allegation based on a lack of information or belief.

An answer to a complaint in United States District Court should also include any affirmative defenses that you may have as well as admitting or denying all of the allegations in the complaint.  An affirmative defense is basically a defense where, even assuming that all of plaintiff’s allegations in the complaint were true, the law does not permit the plaintiff to win the case.

An answer to a complaint in United States District Court should include all relevant affirmative defenses as Rule 12(b) of the Federal Rules of Civil Procedure states that certain defenses may be waived if they are not raised in the answer or another response such as a motion to dismiss.  If an affirmative defense is not included in an answer the defendant may not be allowed to raise it later in the case unless they the court grants them leave of court to amend their answer.

An answer to a complaint in United States District Court must also state enough facts to support each affirmative defense.  If the answer fails to do so the plaintiff may file a motion to strike the defense on the grounds of an insufficient defense, or an immaterial allegation pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.

An experienced litigation attorney can evaluate your situation and determine which affirmative defenses to include in your answer to the complaint as well as determine whether a counterclaim or crossclaim is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

 

 

Motion to vacate a judgment under Rule 60(b)(1) in United States District Court

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post.

A motion to vacate a judgment under Rule 60(b)(1) in United States District Court is filed on the grounds of mistake, inadvertence, surprise or excusable neglect.

Rule 60 of the Federal Rules of Civil Procedure states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.”  And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

Deadline to file Rule 60(b)(1) motion to vacate a judgment.

It should be noted that Rule 60 does state that the motion must be made within a reasonable time no more than one year after entry of the judgment or order, or date of the proceeding.   If you have recently become aware that a default judgment or any other judgment has been entered against you in Federal Court you need to act quickly to increase the probability that your motion to vacate a judgment under Rule 60(b)(1) as the Ninth Circuit Court of Appeal has stated that

the law is settled that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

You also need to emphasize that you have affirmative defenses to the complaint as you must show that you have a meritorious defense in order to prevail on the motion.

Relevant factors considered by the court on a Rule 60(b)(1) motion.

In ruling on a motion to vacate a judgment under Rule 60(b)(1) the court will look at three factors in deciding whether to grant relief from the default which are:

Whether the plaintiff will suffer prejudice if the judgment is vacated,

Whether the defendant has a meritorious defense

Whether the defendant engaged in any culpable conduct that led to the default or judgment being entered against them.

In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” See Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

However a motion to vacate a judgment under Rule 60(b)(1) can be denied if it is shown that the moving defendant was culpable, and that conduct led to the default.

And the United States Supreme Court has stated that the determination of what conduct constitutes “excusable neglect” under Rule 60(b)(1) and similar rules “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” See Pioneer Inv. Svcs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993).

A motion to vacate a judgment under Rule 60(b)(1) does have a longer deadline than a motion to vacate a judgment in California under Code of Civil Procedure section 473(b).  However it has one significant difference in that the moving party is required to show a meritorious defense.

An experienced litigation attorney can evaluate your situation and determine whether filing a motion to vacate a judgment under Rule 60(b)(1) is appropriate.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Contact attorney Nathan Mubasher for a free consultation and evaluation of your case.

Schedule a free consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.