Enrique Patterson v. Salvador Lew , 265 F. App'x 767 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 13, 2008
No. 07-13227 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20925-CV-JAL
ENRIQUE PATTERSON,
Plaintiff-Appellant,
versus
SALVADOR LEW,
in his individual capacity,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 13, 2008)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Enrique Patterson appeals the district court’s sua sponte dismissal of his
complaint to set aside a judgment for fraud upon the court. For the reasons set
forth below, we affirm.
I. BACKGROUND
On August 5, 2004, Patterson filed an amended complaint against Salvador
Lew, claiming that Lew, as Director of the Office of Cuba Broadcasting (“OCB”),
a federal agency, had racially discriminated against Patterson. Patterson, who is
black and Cuban, claimed that he had contracted with the OCB for the production,
writing, and voicing of a special features show that would air three times per week.
He claimed that his fee was reduced in December 2001 until early 2003 to $85 per
performance, but that two other non-black Cubans were hired during the same
period and were paid $200 and $400 per performance for their shows that also
aired three times a week.
The district court denied Lew’s motion for summary judgment and the case
was tried before a jury. The jury returned a verdict for Lew on January 3, 2005,
and judgment on the verdict was entered on the same day. On January 12, 2005,
Patterson filed a Rule 59 motion for new trial, claiming various evidentiary errors,
but the district court denied the motion. We affirmed the judgment on appeal in
December 2005.
In January 2006, Patterson filed a verified rule 60(b) motion for relief from
2
judgment, claiming that Lew had concealed certain material evidence, namely that
several of the non-black contractors whose fees had been reduced in 2001
complained to OCB management and had their fees increased. Patterson claimed
that this amounted to fraud on the court that tainted the final judgment. The
district court denied Patterson’s motion, and Patterson did not appeal.
On April 5, 2007, Patterson filed a complaint to set aside a judgment for
fraud upon the court, alleging facts identical to those he had raised in his Rule
60(b) motion. The district court dismissed the complaint sua sponte, and Patterson
filed a timely notice of appeal.
II. STANDARD OF REVIEW
We review a district court’s dismissal of an independent action under Fed.
R. Civ. P. 60(b) for abuse of discretion. Booker v. Dugger, 825 F.2d 281, 285
(11th Cir. 1987).
III. DISCUSSION
Generally, “only the most egregious misconduct, such as bribery of a judge
or members of a jury, or the fabrication of evidence by a party in which an attorney
is implicated, will constitute a fraud on the court.” Rozier v. Ford Motor Co., 573
F.2d 1332, 1338 (5th Cir. 1978).1 It is clear that the conduct Patterson complains
1
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as precedent all decisions from the former Fifth Circuit prior to October 1, 1981.
3
of was not egregious enough to constitute fraud on the court.
We have consistently held that a fraud between parties is not a fraud on the
court. For example, we held in S.E.C. v. ESM Group, Inc., 835 F.2d 270 (11th Cir.
1988), that an attorney’s failure to disclose information that may have been helpful
to the defense was not fraud on the court. Id. at 274. We even declared in that
case that perjury does not constitute fraud on the court. Id. at 273. Here, Patterson
has alleged that Lew failed to disclose that the payments to some of the employees
had been increased after those employees complained to management. In support
of his position, Patterson cites Kerwit Medical Prods., Inc. v. N. & H. Instruments,
Inc., 616 F.2d 833 (5th Cir. 1980). In that case, however, the court declared the
“well-settled rule that the mere nondisclosure to an adverse party and to the court
of facts pertinent to a controversy before the court does not add up to ‘fraud upon
the court’ for purposes of vacating a judgment under Rule 60(b).” Id. at 837. We
have squarely held, therefore, that conduct like that which Patterson alleges
occurred here does not constitute fraud on the court.
IV. CONCLUSION
The district court did not abuse its discretion in dismissing Patterson’s
complaint. Accordingly, we affirm.
AFFIRMED.
4