                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          May 15, 2015
                          UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                       TENTH CIRCUIT


 VINCENT P. JIMENEZ,

           Plaintiff - Appellant,
 v.                                                             No. 14-2195
 JEFFREY STONE;                                    (D.C. No. 1:11-CV-00707-WJ-SMV)
 KEVIN TODACHEENIE;                                             (D.N.M.)
 CITY OF ALBUQUERQUE,

           Defendants - Appellees.


                                    ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.**


       Proceeding pro se, Plaintiff Vincent Jimenez filed this § 1983 action in August 2011,

alleging Defendants, Albuquerque police officers, falsely arrested and beat him. Nearly two

years later, in May 2013, a magistrate judge issued a Report and Recommendation (R&R)

recommending that the district court, upon Defendants’ motion, dismiss Plaintiff’s action

pursuant to Fed. R. Civ. P. 16(f), 37(b), and 41(b) as a pretrial discovery sanction:


       *
         This order and judgment is not binding precedent except under the doctrines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.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
       I FIND that Plaintiff has repeatedly failed to comply with orders of this Court
       and the rules of procedure. I further FIND that such failures have caused
       prejudice to the Defendants, that such failures have interfered with the judicial
       process, that Plaintiff is culpable for his failures despite multiple warnings that
       such failures could result in dismissal of his case, and that lesser sanctions
       have not been effective.

       The litany of facts on which the magistrate judge based his findings are well stated

in the R&R, and we need not restate them here. Suffice to say Plaintiff’s repeated failures

to provide Defendants with initial discovery disclosures as required by Fed. R. Civ. P. 26(a)

and D.N.M.L.R.–Civ. 26.3 sounded the death knell of his lawsuit. See Ehrenhaus v.

Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992) (delineating a set of factors a court should

consider before choosing dismissal as a sanction). The magistrate judge, to no avail, had

ordered Plaintiff to comply with the Rules on five separate occasions and previously had

imposed sanctions short of dismissal. On October 4, 2013, the district court overruled

Plaintiff’s objections, adopted the R&R, and granted Defendants’ motion to dismiss with

prejudice.

       Plaintiff did not appeal. Rather, over a year later on October 6, 2014, Plaintiff filed

a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(3). That Rule provides

a district court may relieve a party from a final judgment rendered as a result of fraud,

misrepresentation, or misconduct by an adverse party. A motion under Rule 60(b)(3),

however, “must be made within a reasonable time . . . [and] not more than a year after the

entry of the judgment.” Fed. R. Civ. P. 60(c)(1). The district court denied Plaintiff’s post-

judgment motion as untimely. This time, Plaintiff timely appealed. Our jurisdiction to


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review the denial of Plaintiff’s Rule 60(b)(3) motion arises under 28 U.S.C. § 1291.

       We review a district court’s denial of a Rule 60(b) motion for an abuse of discretion.

Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1293 (10th Cir. 2005). Relief from

judgment pursuant to Rule 60(b) is extraordinary and reserved for exceptional circumstances.

We will reverse the denial of a Rule 60(b) motion only if no reasonable basis exists for the

district court’s decision and we are certain its decision is wrong. Id. In deciding the

timeliness of a Rule 60 motion, “the court examines ‘the facts of each case, taking into

consideration the interest in finality, the reason for the delay, the practical ability of the

litigant to learn earlier of the grounds relied upon, and prejudice to other parties.’” Mullin

v. High Mountain, 182 F. App’x 830, 833 (10th Cir. 2006) (unpublished) (quoting Ashford

v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981)). Assuming a Rule 60(b)(3) motion is timely,

the movant then—

       must, by adequate proof, clearly substantiate the claim of fraud, misconduct
       or misrepresentation. In other words, [he] 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
       to fully and fairly to prepare for and proceed to trial. Subsection (b)(3) is
       aimed at judgments which were unfairly obtained . . . .

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

       Plaintiff points out that October 4, 2014 fell on a Saturday, so he had until the

following Monday, October 6, 2014, to meet Rule 60(b)(3)’s one-year deadline. See Fed.

R. Civ. P. 6(a)(1)(C). Plaintiff, however, misreads Rule 60(b)(3). Subsection (b)(3) does not

provide every movant claiming fraud against an adverse party with one year in which to file


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a motion for relief from judgment. Rather, Rule 60(c)(1) tells us such motion must be filed

within a reasonable time, and, in no event, more than a year after entry of judgment. In this

case, Plaintiff sent a personal letter dated January 31, 2014, to Federal District Judge James

Parker complaining of his treatment before the district court. (Judge Parker was not the

judge assigned to Plaintiff’s case.) Therein, Plaintiff states “I would also like to preserve my

right to refile the complaint and if I have to, change the charges to police corruption and

fraud.” Yet Plaintiff did not file his Rule 60(b)(3) motion alleging fraud against Defendants

until over eight months later. We have carefully reviewed Plaintiff’s motion and conclude

that he knew or reasonably should have known the purported grounds for his motion long

before October 6, 2014. Nor does Plaintiff provide any good reason for the extended delay.

Accordingly, we cannot say the district court abused its discretion when it dismissed

Plaintiff’s Rule 60(b)(3) motion as untimely pursuant to subsection (c)(1).

       Even assuming otherwise, however, Plaintiff still cannot prevail. First, Plaintiff

utterly fails to “clearly substantiate” his fraud claim by “clear and convincing proof.” Zurich,

426 F.3d at 1290. Plaintiff provided the district court with no evidence, just bald assertions,

many of which were contained in his original complaint, to support his claim that “[u]nder

the current case . . . fraud has been perpetuated numerous times.” Second, we fail to see how

Defendants’ alleged misconduct “substantially” hindered Plaintiff from meeting his initial

discovery obligations in the district court—the very reason the district court dismissed

Plaintiff’s case. Id.




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      Accordingly, Plaintiff’s motion to proceed on appeal in forma pauperis is

ALLOWED, and the district court’s denial of Plaintiff’s motion for relief from judgment

pursuant to Fed. R. Civ. P. 60(b)(3) is AFFIRMED. Plaintiff’s motion for appointment of

counsel is DENIED as moot.

                                        Entered for the Court


                                        Bobby R. Baldock
                                        United States Circuit Judge




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