United States District Court, N.D. California
GEERTE M. FRENKEN, Plaintiff,
CHRISTOPHER PERRY HUNTER, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION, RE: DKT. NO. 75
HAYWOOD S. GILLIAM, JR.United States District Judge
April 13, 2018, Plaintiff Geerte Frenken moved for
reconsideration of the Court's order granting summary
judgment in favor of Defendant Christopher Perry Hunter. Dkt.
Nos. 75-1 (“Mot.”); see also Dkt. No. 72
(“Order”). Specifically, Plaintiff requests that the
Court reconsider its Order under Federal Rules of Civil
Procedure (“Rule(s)”) 60(b)(1), 60(b)(3), and
60(b)(6). Defendant filed an opposition to the motion on
April 27, 2018. Dkt. No. 76 (“Opp.”). After
carefully considering the parties' arguments, the Court
DENIES Plaintiff's motion.
60(b) allows courts to relieve a party from a final judgment
or order for:
(1) mistake, inadvertence, surprise, or excusable neglect;
(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);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or (6) any other reason that justifies relief.
Rule 60(b)(3), the moving party must establish by clear and
convincing evidence that a judgment was obtained by fraud,
misrepresentation, or misconduct, and that the conduct
complained of prevented the moving party from fully and
fairly presenting the case.” Lafarge Conseils Et
Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791
F.2d 1334, 1338 (9th Cir. 1986). Rule 60(b)(6) is read as
“exclusive of the preceding clauses, ” and is
reserved “for extraordinary circumstances.”
Id. (quotations omitted).
seeks reconsideration on two overlapping grounds. First,
Plaintiff claims that reconsideration under Rule 60(b)(1) and
60(b)(6) is appropriate because the Court erroneously relied
on false statements by Defendant's counsel, failed to
consider several documents in the record, and cited
distinguishable case law. Mot. at 4-6. Second and similarly,
Plaintiff argues that relief is appropriate under Rule
60(b)(3) because defense counsel obtained the Court's
summary judgment ruling by making fraudulent representations.
Court disagrees. Turning first to Plaintiff's allegations
of fraud, Plaintiff identifies three supposedly false
statements from defense counsel's declaration: (1)
Plaintiff took Child to the Netherlands without Father's
consent, Mot. at 2-3; (2) Father obtained sole physical
custody over Child in November 2014, Mot. at 3; and (3) the
Marin County Superior Court found that California is
Child's habitual residence. Mot. at 3-4. None of these
statements warrant Rule 60(b) relief. With respect to whether
Father consented to Plaintiff's trip with Child to the
Netherlands, the documents cited by Plaintiff do not
controvert the statement made by defense counsel.
See Order at 2; Dkt. No. 41-3 (“Reiter
Decl.”) ¶ 7. Plaintiff's documents state, in
sum, that Plaintiff was not legally required to
obtain Father's written consent to travel with
Child to the Netherlands; rather, Plaintiff needed only to
notify Father. See Mot. at 2-3. These documents do
not show that defense counsel made a false statement by
representing that Father did not, in fact, consent to this
addition, this statement was not dispositive of the
Court's Order. As the Court stated in its Order, the key
issue before the Court was Child's place of habitual
residence. Order at 5-6. In finding that that Child's
habitual residence was the United States, the Court cited
four other court decisions so stating, and documents that
Plaintiff attached to her own complaint. See Id.
That Plaintiff informed Father of her travel with Child to
the Netherlands did not then determine and does not now alter
the Court's habitual residence finding. As a result,
Plaintiff cannot show under Rule 60(b)(1) that the Court
mistakenly or erroneusly relied on this statement.
Furthermore, even assuming that this statement was false, it
does not create the kind of gross injustice that compels
departing from res judicata principles under Rule 60(b)(3).
See Appling v. State Farm Mut. Auto. Ins. Co., 340
F.3d 769, 780 (9th Cir. 2003) (holding that an action under
Rule 60(b) to “to set aside a judgment for fraud on the
court is ‘reserved for those cases of injustices which,
in certain instances, are deemed sufficiently gross to demand
a departure from rigid adherence to the doctrine of res
judicata'” (quoting United States v.
Beggerly, 524 U.S. 38, 46 (1998)); In re
Levander, 180 F.3d 1114, 1119 (9th Cir. 1999) (finding
“fraud on the court” where the court itself
relied on the allegedly false statements in a prior holding);
In re ...