United States v. Arens , 7 F.R.D. 480 ( 1947 )

BYERS, District Judge.

This is a motion by the defendant, noticed for May 21, 1947, to vacate a judgment dated January 28, 1943, entered upon his written consent acknowledged January 28, 1943, that the certificate of naturalization granted to him on March 15, 1940, he vacated, cancelled and set aside. Thus more than four years elapsed between the judgment and the attempt to vacate it.

Rule 60 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, gives the Court power to relieve a party from a judgment or proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect, but such a motion must be made within six months. Thus it follows that power to grant the motion must be sought elsewhere.

A bill of review in equity lies to vacate a consent decree where it is voidable because of fraud or duress. Restatement— Judgments, § 121; Thompson v. Maxwell, 95 U.S. 391, 24 L.Ed. 481.

The statements made by Alrich Arens to the Assistant U. S. Attorney and to the Special Assistant to the Attorney General, which antedated the complaint and the consent herein, have been examined, and are quite destructive of any contention that he executed the consent as the result of fraud practiced upon him, or because he was under duress, mental or physical.

The motion is denied for failure to present any facts which would justify granting it.

Settle order.