McKinney v. Boyle

• Decision Date: 21 April 1969
• Docket Number: No. 22374.,22374.
• Parties: Mervin C. McKINNEY, Appellant, v. Joseph BOYLE et al., Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

404 F.2d 632 (1968)

Mervin C. McKINNEY, Appellant, v. Joseph BOYLE et al., Appellee.

No. 22374.

United States Court of Appeals Ninth Circuit.

December 4, 1968.

Rehearing Denied December 18, 1968.

Certiorari Denied April 21, 1969.

Mervin C. McKinney, in pro per.

Kenneth S. Scoville (appeared), Leroy W. Hofmann, Phoenix, Ariz., for appellee.

Before HAMLEY, DUNIWAY and CARTER, Circuit Judges.

Certiorari Denied April 21, 1969. See 89 S.Ct. 1481.

DUNIWAY, Circuit Judge:

This is a diversity action for damages growing out of an automobile accident which occurred on April 7, 1961. The suit was commenced by Mervin C. McKinney on April 26, 1961. It was dismissed with prejudice on December 4, 1962, pursuant to a stipulation of that date signed by the attorneys for all parties, including plaintiff. On June 16, 1967, plaintiff, proceeding under Rule 60(b), Federal Rules of Civil Procedure, moved to vacate and set aside the order dismissing the action. McKinney appeals from the order denying that motion.

Defendants moved to dismiss the appeal on the ground that the motion had not been filed in the district court within the time provided by Rule 60(b) (3). This would be a reason for affirming the order of the district court denying the motion, but would not be an appropriate ground for dismissing the appeal. The motion to dismiss the appeal is therefore denied.

Plaintiff moved in this court to require defendants to supplement the record by supplying copies of a document, and providing other information not now in the record before us, and which had not been produced in the district court proceedings. The motion is denied.

In his complaint, McKinney sought special damages in an unspecified amount, and general damages in the sum of $50,000. Defendants counterclaimed against McKinney for damages in the sum of $510,450, and cross complained against additional parties for damages in the same amount. As plaintiff, McKinney was represented by one firm of attorneys; as cross defendant, by another firm. Both firms signed the stipulation for dismissal.

The Rule 60(b) motion was made on the ground of "fraud and deceit." In a supporting affidavit, McKinney alleged in substance: He refused all offers of settlement, never accepted or entered into any settlement, never authorized his attorney to settle, never gave his former wife any authority to settle, and never authorized anyone to settle. The defendants and their attorneys and his former wife, who obtained a divorce in February, 1963, conspired to effectuate a settlement by fraud, without McKinney's knowledge, for the purpose of obtaining money for McKinney's injuries. The fraud was known to McKinney's insurance company. McKinney does not know what the settlement was and has received nothing from it. He then says:

"That prior to December 23, 1963, and since July 18, 1962, I was outside the continental limits of the United States, and since December 23, 1963, I have been illegally incarcerated and not a free agent, unable to prosecute or handle my legal affairs in the proper manner.

"That I was uninformed of the illegal and fraudulent settlement of the herein attached civil matter by the parties at interest until approximately the month of September, 1966. That since that time, I have diligently sought copies of the entire civil file on the matter, that said copies were obtained from the court and forwarded to me by Mrs. Viola McKinney, my mother. That after having received said copies, I did prepare and submit to this instant Court, a `Notice of Intent to file Civil and Criminal Complaint.\' That said complaint was never filed, that I was denied permission to proceed in forma pauperis and that the aforementioned `complaint\' documents were returned to me about June 5, 1967."

Defendants resisted the motion on the sole ground that it was not timely, because not filed within one year, as required by Rule 60(b) and our decision in Kathe v. United States, 9 Cir., 1960, 284 F.2d 713. No evidence, by affidavit or otherwise, was offered in opposition to the motion.¹ We assume, therefore, that the court denied the motion as not timely because barred by the one year requirement of the rule. For the purpose of the appeal, we assume that plaintiff's factual allegations are true, as we would on a motion to dismiss.²

The pertinent provisions of Rule 60(b) are:

"On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order, or proceeding for the following reasons: (1) * * * (2) * * * (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

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