                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 24, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 CHARLES W. CAMPBELL,

          Plaintiff-Appellant,
 v.                                                      No. 09-3067
 MEREDITH CORPORATION,                           (D.C. No. 00-CV-2275-JAR)
                                                          (D. Kan.)
          Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Plaintiff-Appellant Charles W. Campbell, appearing pro se, 1 appeals from

the district court’s denial of his motion under Rule 60 of the Federal Rules of

Civil Procedure. We have jurisdiction over Campbell’s appeal pursuant to 28

U.S.C. § 1291, and we affirm.

                                          I

      In June 2000, Campbell filed suit in the federal district court in the District

of Kansas against his former employer Defendant-Appellee Meredith Corporation,

alleging wrongful termination under Title VII. 2 At various times throughout his

lawsuit, Campbell alternated between pro se status and being represented by three

different sets of attorneys. In May 2003, the district court granted summary

judgment to Meredith Corporation on Campbell’s claims, and Campbell did not

appeal. In February 2009, nearly six years later, Campbell filed a “request for

relief from final judgment,” based on “fraud and misconduct” and alleging he was

“denied a constitutional right to a fa[i]r and impartial trial.” ROA Vol. 6, Doc.

159 at 1-2. Campbell cited Fed. R. Civ. P. 60(b)(3), (b)(6), and (d)(3) as the basis

for his motion.

      Campbell claimed fraud was committed because one of his attorneys, who

represented Campbell for 180 days from October 25, 2001 to April 23, 2002, was


      1
        As he is proceeding pro se, we have construed Campbell’s pleadings
liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
      2
          Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

                                         -2-
suspended from practice for a period of time in the State of Kansas by the Kansas

Supreme Court. The attorney was suspended in October 2000 for failure to meet

continuing legal education requirements and was re-admitted in December 2003.

Campbell claims that the district court knew that his attorney was under the

Kansas license suspension and that the proceedings before the district court were

therefore unfair. 3 Campbell does not allege that the attorney was suspended from

practice before the federal district court. Campbell admits that the district court’s

order granting summary judgment to Meredith Corporation was “factually

correct,” although he claims that the judgment against him was “unfairly

obtained.” Id. at 1.

      The district court denied Campbell’s motion by text entry and this appeal

followed.

                                           II

      Rule 60 states, in pertinent part:

             (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:



      3
         Campbell submitted a letter from the clerk of the Kansas Appellate
Courts that stated that the Kansas “admissions office does notify the federal
courts of any attorney disciplinary actions taken by the Kansas Supreme Court.”
ROA Vol. 6, Doc. 159 Ex. 6. The letter does not mention the specific attorney at
issue and does not indicate whether a suspension for failure to comply with
continuing legal education requirements is an “attorney disciplinary action.”

                                           -3-
                   ...

                   (3) fraud (whether previously called intrinsic or
                   extrinsic), misrepresentation, or misconduct by an
                   opposing party;

                   (4) the judgment is void;

                   ...

                   (6) any other reason that justifies relief.

            (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.

                   ...

            (d) Other Powers to Grant Relief. This rule does not limit
            a court’s power to:

                   ...

                   (3) set aside a judgment for fraud on the court.

Fed. R. Civ. P. 60 (emphasis added).

      We construe that portion of Campbell’s motion alleging fraud by an

opposing party under Rule 60(b)(3), and review the denial of that portion of the

motion for abuse of discretion. Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d

1281, 1289 (10th Cir. 2005). We construe that portion of Campbell’s motion

alleging constitutional harms under Rule 60(b)(4), and review the denial of that




                                         -4-
portion of the motion de novo. 4 Amoco Oil Co. v. U.S. Envtl. Prot. Agency, 231

F.3d 694, 697 (10th Cir. 2000). We construe that portion of Campbell’s motion

alleging fraud on the court under Rule 60(b)(6), and review the denial of that

portion of the motion for abuse of discretion. United States v. Buck, 281 F.3d

1336, 1342-43 (10th Cir. 2002).

              Rule 60(b)(3) Motion Alleging Fraud by an Opposing Party

      Rule 60(b)(3) motions must be filed “no more than a year after the entry of

[] judgment.” Fed. R. Civ. P. 60(c)(1). Here, Campbell’s motion was filed nearly

six years after the entry of the judgment in this case. Therefore, Campbell’s Rule

60(b)(3) motion is not timely and the district court did not abuse its discretion in

denying it.

      Even if we were to consider Campbell’s motion under Rule 60(b)(3),

however, he has not adequately stated a claim under that Rule. 5

              Rule 60(b)(3) allows a court to relieve a party from a final
              judgment based on “fraud . . . , misrepresentation, or other
              misconduct of an adverse party.” Regardless of the
              specific form of the allegation, the party relying on Rule
              60(b)(3) must, by adequate proof, clearly substantiate the
              claim of fraud, misconduct or misrepresentation. In other

      4
         Meredith Corporation asserts Campbell is claiming this basis for relief
for the first time on appeal. However, Campbell did make this argument below,
he just did not title it under Rule 60(b)(4).
      5
         It is unclear whether Campbell continues to press his Rule 60(b)(3)
claim. See Aplt. Reply at 6 (“Campbell did not allege that Meredith engaged in
fraud. He alleged that the judicial system broke down . . . .”). Regardless, we
reject Campbell’s appeal of this issue for the multiple reasons stated herein.

                                          -5-
              words, they must show clear and convincing proof of
              fraud, misrepresentation, or misconduct. Moreover, the
              challenged behavior must substantially have interfered
              with the aggrieved party’s ability fully and fairly to
              prepare for and proceed at trial.

Zurich N. Am., 426 F.3d at 1290 (internal quotations and citations omitted).

Campbell alleged no fraud by an opposing party that substantially interfered with

his ability to prepare his case. The district court therefore could not have abused

its discretion with a merits denial of Campbell’s Rule 60(b)(3) motion. 6

                 Rule 60(b)(4) Motion Alleging Constitutional Harm

      A Rule 60(b)(4) motion alleges that a judgment is “void.” “A judgment is

void only if the court which rendered it lacked jurisdiction of the subject matter,

or of the parties, or acted in a manner inconsistent with due process of law.”

Buck, 281 F.3d at 1344 (internal quotations omitted). Campbell’s allegations of a

due process violation mirror exactly his allegations regarding fraud on the court.

Therefore, they will be addressed in the next section. 7 See id. at 1342 (“In this

      6
         The district court denied Campbell’s Rule 60 motion in its entirety
through a text entry on the docket, and there was, therefore, no order entered
explaining the district court’s justification for its denial. Although it is troubling
that the district court used a text entry to adjudicate a motion in which portions
allege matters we are to review for abuse of discretion, we are comfortable
affirming the district court’s text-entry order in this case. Here, Campbell’s
motion under Rule 60(b)(3) was so untimely, and, as discussed below, his motion
under Rules 60(b)(4) and (b)(6) was so lacking in support, that it is beyond
question that Campbell’s motion was insufficient to state claims for relief under
Rule 60.
      7
          Even if we were to separately consider the merits of Campbell’s claim
                                                                     (continued...)

                                          -6-
case no purpose would be served by denying Appellants relief on the ground that

the motion misstyled the plea for relief. The substance of the plea should control,

not the label.”).

                    Rule 60(b)(6) Motion Alleging Fraud on the Court

      Campbell claims fraud was committed on the district court via his

attorney’s practice before that court despite the suspension of the attorney’s state

license to practice. A Rule 60 motion for fraud on the court 8 is an allegation of

“fraud which is directed to the judicial machinery itself and is not fraud between

the parties . . . .” Id. (internal quotations omitted). Fraud on the court claims are

“much more difficult to prove” than claims of fraud by an adverse party. Zurich

N. Am., 426 F.3d at 1291.

      Concerning the severity of claims necessary to establish fraud on the court,

we stated in Zurich North America:

             Generally speaking, only the most egregious conduct, 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. Less

      7
       (...continued)
under Rule 60(b)(4), we would not find a sufficient basis to grant relief.
Campbell points to no evidence to support the notion that the district court
violated due process principles. See Orner v. Shalala, 30 F.3d 1307, 1310 (10th
Cir. 1994) (observing that we reject due process arguments under Rule 60(b)(4)
where “fundamental procedural prerequisites—particularly, adequate notice and
opportunity to be heard—were fully satisfied”).
      8
         Fraud on the court claims are exempt from the one-year time period for
filing claims under Rule 60(c)(1). Zurich N. Am., 426 F.3d at 1291.

                                          -7-
              egregious misconduct, such as nondisclosure to the court
              of facts allegedly pertinent to the matter before it, will not
              ordinarily rise to the level of fraud on the court.

              These parameters are strictly applied because a finding of
              fraud on the court permits the severe consequence of
              allowing a party to overturn the finality of a judgment.
              Intent to defraud is an absolute prerequisite to a finding of
              fraud on the court.

Id. (internal quotations and citations omitted). We have also stated that fraud on

the court is “fraud which is directed to the judicial machinery itself and is not

fraud between the parties or fraudulent documents, false statements or perjury.”

Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985). Fraud on the

court “is thus fraud where the court or a member is corrupted or influenced or

influence is attempted or where the judge has not performed his judicial

function—thus where the impartial functions of the court have been directly

corrupted.” Id. Fraud on the court must be shown by “clear and convincing

evidence.” Weese v. Schukman, 98 F.3d 542, 552 (10th Cir. 1996).

      Campbell attempts to support his claim of fraud on the court by pointing to

evidence that his attorney was suspended from practice by the Kansas Supreme

Court while representing Campbell. This fact, however, fails to establish fraud.

Campbell alleges that intent to defraud should be “implied” because the District

of Kansas’s local rules 9 require annual attorney certification that the attorney has


      9
          See D. Kan. Local R. 83.5.3(a) (“All attorneys admitted to the practice of
                                                                       (continued...)

                                           -8-
met the state court’s continuing legal education hours. There is no mechanism,

however, for “implying” fraud on the court. Campbell bears the burden of

establishing fraud on the court by clear and convincing evidence. Evidence that

Campbell’s attorney had not met the required continuing legal education hours is

not “clear and convincing evidence” that the court was defrauded. Campbell has

pointed to no evidence that the court was corrupted or unduly influenced by

Campbell’s attorney’s behavior, or that the court behaved with bias or was

corrupted by the turn of events. There is simply no allegation within Campbell’s

briefing that rises to the level necessary to establish fraud on the court.

      The only other specific allegation Campbell makes is that the suspended

attorney failed, in Campbell’s opinion, to properly pursue discovery responses

from Meredith Corporation. This is more akin to a claim of attorney malpractice,

and Campbell is focused on his attorney’s alleged “incompetence” rather than on

any fraud to the court. This allegation simply does not rise to the level necessary

for having evidence that the judgment against Campbell in the district court was

“unfairly obtained.” See Zurich N. Am., 426 F.3d at 1290 (stating that motions

under Rule 60 regarding fraud are not concerned with a judgment’s factual


      9
       (...continued)
law before this court shall annually, on or before the first day of July, register
with the clerk. . . . [T]he registrant shall certify that during the 12-month period
immediately preceding the date of registration he or she has earned at least the
minimum number of credit hours required by the Rule of the Supreme Court of
Kansas relating to continuing legal education. . . .”).

                                          -9-
correctness, but at “judgments which are unfairly obtained” (internal quotations

omitted)).

                                        III

      We AFFIRM the district court’s dismissal of Campbell’s Rule 60 motion.

Campbell’s request to supplement the record is DENIED, and his request to

withdraw his motion to strike is GRANTED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




                                       -10-
