     Case: 11-30129   Document: 00511674718   Page: 1   Date Filed: 11/23/2011




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                              November 23, 2011

                                 No. 11-30129                   Lyle W. Cayce
                                                                     Clerk

ADA D. TURNER; RONNIE TURNER,

                                           Plaintiffs-Appellants
v.

NEAL E. PLEASANT; RPIA OF DELAWARE, INCORPORATED;
STANDARD FIRE INSURANCE COMPANY,

                                           Defendants-Appellees



                 Appeal from the United States District Court
                     for the Eastern District of Louisiana


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        Ada and Ronnie Turner seek to reopen a judgment entered in 2001. Their
personal injury claims were heard in the United States District Court for the
Eastern District of Louisiana. After a bench trial, Judge G. Thomas Porteous,
Jr. entered judgment for the defendants. The Turners moved for a new trial, or,
alternatively, for Judge Porteous to recuse himself because of their claim that
the judge had an overly close relationship with the defendants’ attorney. Judge
Porteous denied these motions. This court affirmed.
        In June 2010, after Judge Porteous’s impeachment and removal from
office, the Turners filed what they termed an independent action in equity in the
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same district court on the grounds that the judgment was procured by fraud
involving the district judge. A new district judge dismissed the suit as barred
by the doctrine of res judicata. We REVERSE and REMAND.
                                          FACTS
       On June 3, 2001, Ada and Ronnie Turner were on a small fishing boat on
the Intracoastal Waterway in Houma, Louisiana.1 They were passed by a yacht
controlled by Neal Pleasant. The Turners allege that the high speed and size of
the yacht created large swells in the waterway. The swells grew so large that
the Turners’ boat was thrown into the air. The Turners claim that Ada Turner
injured her back when she landed.
       The Turners brought a personal injury lawsuit against the yacht’s
operator, owner, and insurance company: Neal Pleasant, RPIA of Delaware, and
the Standard Fire Insurance Company, respectively. The case, filed in the
Eastern District of Louisiana, was assigned to Judge G. Thomas Porteous, Jr.
Originally, the defendants were represented by Mark S. Taylor, a lawyer in
Metairie, Louisiana.        One week before the preliminary conference, the
defendants retained Richard A. Chopin as well. While Taylor still worked on the
case, Chopin was designated as the trial attorney of record.
       Chopin and Judge Porteous were friends. They would dine and travel
together. Their relationship was such that Chopin served as an intermediary
when a company unrelated to this litigation provided Judge Porteous with
all-expenses-paid hunting trips. Chopin accompanied Judge Porteous on these
trips, sharing a room at least twice. One of these trips occurred during the
pendency of the original lawsuit, after the complaint was filed but three months
before Chopin was retained by the defendants.



       1
        These facts are drawn from the Turners’ complaint and, given the posture of the case,
are accepted as true. Hale v. King, 642 F.3d 492, 498-99 (5th Cir. 2011).

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      A central evidentiary battle at trial was between expert witnesses. The
defendants’ experts disputed the assertion that the yacht caused the wake and,
even if it did, that Ada was injured. The defendants presented evidence that at
the time of the accident, Ada suffered from a pre-existing injury to her lower
back. Dr. Christopher Cenac, Sr. testified for the defendants. Chopin frequently
retained Cenac to be the medical expert in personal injury cases. Like Chopin,
Cenac and Judge Porteous spent time together outside of court including
traveling on luxury hunts; they certainly appeared to be friends. Ultimately,
Judge Porteous ruled in favor of the defendants, relying heavily on his
determination that Cenac was more credible than the Turners’ expert.
      The Turners moved for a new trial and for the judge to recuse himself.
Most of the motion concerned reasons for a new trial. Only the final paragraph
presented arguments for recusal. No facts were introduced, but the motion
asserted “the findings of fact and the conclusions of law reflect [partiality] and
bias in favor of the defendant and/or defense counsel in this case.”          The
defendants’ response described the recusal motion as “an act of desperation
never previously witnessed” that “vituperatively attacked the Court and its
integrity.” The merits of the Turners’ arguments were not addressed because
the defendants refused to “dignify the plaintiffs’ allegations by according them
any additional print.”
      Judge Porteous denied both motions, explaining that any suggestion of
partiality was “utterly unsubstantiated,” “unfounded and without merit,” and
“not supported by any evidence.” He admitted to being Chopin’s friend and
asserted, inaccurately according to the current pleadings, that he was friends
with the Turners’ counsel as well. The plaintiffs appealed.
       On appeal, the judge’s insistence of his impartiality and the absence of
any factual support for the allegations led this court to deny the “unsupported”



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claims and affirm the district court’s orders. Turner v. Pleasant, 127 F. App’x
140, 141 (5th Cir. 2005). For two years, the case appeared resolved.
      In May 2007, the Department of Justice sent a Complaint of Misconduct
against Judge Porteous to the Chief Judge of this court regarding misconduct
unrelated to this case. After investigating the complaint, the Judicial Council
of the Fifth Circuit determined that Judge Porteous’s misconduct might be
grounds for impeachment. Accordingly, it certified its determination to the
Judicial Conference of the United States. The Judicial Conference unanimously
decided to transmit the report to the House of Representatives, pursuant to 28
U.S.C. § 355(b)(1).
      On September 17, 2008, the House of Representatives authorized the
House Judiciary Committee to conduct an investigation to determine whether
impeachment was warranted. This authorization was renewed at the beginning
of the 111th Congress. In January 2009, the House Judiciary Committee
delegated the investigation to a special sub-committee. The sub-committee
concluded its report in early 2010, and recommended to the full committee that
Judge Porteous be impeached. The members of the full committee agreed,
introducing Articles of Impeachment on January 21, 2010. H.R. Res. 1031,
111th Cong. (2010).
      On March 4, days before the House was to vote on the matter, the House
Judiciary Committee printed a Report detailing its investigation into Judge
Porteous’s misconduct. On March 11, 2010, the House unanimously voted to
impeach on four articles of impeachment. 156 Cong. Rec. H1334-1337 (daily ed.
Mar. 11, 2010). On December 8, 2010, the Senate removed Judge Porteous from
office. 156 Cong. Rec. S8608-11 (daily ed. Dec. 8, 2010).
      This personal injury action was one of the cases discussed in the report of
the House Judiciary Committee. Placing Turner v. Pleasant in context of Judge
Porteous’s other alleged misconduct, the House Report stated that, at the time

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the Turners filed their motion for recusal, Judge Porteous was presiding over
another trial in which Chopin was an attorney. At that trial, Chopin was
representing a company that secretly provided the judge with all-expenses-paid
hunting trips. Chopin served as the intermediary for these gifts. The Turners,
after reviewing the House Report, filed a new complaint seeking to set aside the
prior judgment.
      The new cause of action repeated the argument concerning Judge
Porteous’s relationship with Chopin. But it also made new allegations. The
complaint alleged that the defendants and Chopin improperly used Cenac as a
witness in an attempt to gain favorable treatment. It also gathered facts and
details from the House Report. The complaint claimed Chopin frequently bought
meals for Judge Porteous, that the judge and the defendants’ expert witness
were friends who hunted together, that Chopin and the judge shared a hotel
room while the underlying case was on appeal to this court, and that Judge
Porteous made deceptive statements in his order denying recusal in an attempt
to hide his relationship with Chopin and cloud the record on appeal.
      The defendants filed a motion to dismiss on the basis that the complaint
was barred by res judicata. The district court granted the motion. The court
held that the complaint, as a collateral attack on a prior judgment, was barred
by res judicata. It also discussed in a footnote the claim of fraud, finding it
unsupported by any facts. The Turners timely appealed.
                                 DISCUSSION
      We review de novo a district court’s dismissal for failure to state a claim.
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d 248, 252 (5th Cir. 2011). We
construe facts in the light most favorable to the nonmoving party, as a motion
to dismiss under 12(b)(6) “is viewed with disfavor and is rarely granted.”
Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)
(quotation marks and citation omitted). Dismissal is appropriate only if the

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complaint fails to plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).2 To satisfy
this standard, the complaint must provide more than conclusions, but it “need
not contain detailed factual allegations.” Colony Ins. Co., 647 F.3d at 252. Yet,
it must allege enough facts to move the claim “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 570. Determining whether the plausibility
standard has been met is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1950 (2009).
       The Turners filed an independent action in equity.3 A significant hurdle
for them, one the district court found had not been cleared, was that a few years
earlier they had made the same general assertions in the district court and on
the appeal from the final judgment. Res judicata generally bars re-litigation of
claims that actually were or should have been made earlier. Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). The doctrine ensures the
finality of judgments, shelters litigants from successive litigation, and conserves
judicial resources. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 (5th
Cir. 2004).
       Res judicata must at times yield to a well-pled independent action in
equity. See United States v. Beggerly, 524 U.S. 38, 45-46 (1998). In order to
prevent an independent action in equity from making null the limitations of the
related Rule 60(b)(3) right to relief for one year after judgment due to fraud, the
injustice to be remedied must be so severe as to overcome the purposes for the

       2
       The complaint includes Plaintiffs’ Exhibit A, which is a collection of excerpts from the
House Report. See Fed. R. Civ. P. 10(c).
       3
        Such an action is distinct from a motion to set aside a judgment for fraud on the court.
Compare Fed. R. Civ. P. 60(d)(1) with Fed. R. Civ. P. 60(d)(3). Even so, the fraud alleged in
an independent action may be of the kind that could accurately be described as fraud on the
court. See Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 48-49 (1st Cir. 1995).

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doctrine of res judicata. Id. at 47. The actions are “governed not by rule or
statute but by the control necessarily vested in courts to manage their own
affairs.” See Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (quotation marks
and citation omitted). The Federal Rules preserved a court’s power to hear an
independent action to grant relief from a judgment. See Fed. R. Civ. P. 60(d)(1).
      The defendants argue one of our precedents controls and should cause us
to affirm. See Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663 (5th
Cir. 1981). In that case, a litigant sought to reopen a judgment by claiming the
judge was biased and that a witness committed perjury. Id. at 668. On appeal,
we discussed that the plaintiff presented both an independent action for relief
from judgment, which would be under Rule 60(d)(1), and a claim of fraud on the
court – a Rule 60(d)(3) claim. Id. at 667 n.6. We held the independent action
failed because “the plaintiff has alleged no facts indicating that the issues raised
were not open to litigation in the former action or that he was denied a fair
opportunity to make his claim or defense” in the original lawsuit. Id. at 668.
The case did not limit this court’s historic power to set aside past judgments
when necessary to preserve the integrity of the courts, but it did require a proper
pleading to invoke that power.
      In our analysis, we identified five elements of an independent action in
equity: (1) a prior judgment which “in equity and good conscience” should not be
enforced; (2) a meritorious claim in the underlying case; (3) fraud, accident, or
mistake which prevented the party from obtaining the benefit of their claim; (4)
the absence of fault or negligence on the part of the party; and (5) the absence
of an adequate remedy at law. Addington, 650 F.2d at 667-68.
      The Turners allege that the defendants or their agents improperly
exploited the relationships between Judge Porteous and Chopin as well as
between the judge and Cenac. The House Report, excerpted in the complaint,
details the claim that Chopin served as a middleman for improper gifts and

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payments to Judge Porteous from a company that appeared before him in
another case. H.R. Rep. No. 111-427, at 127 (2010). Allegedly, the Turners’
recusal motion threatened to disclose this fact. Moreover, the Report claims that
Judge Porteous ruled in a manner which prevented a fair assessment of the
recusal motion on appeal. This tactic allegedly was also employed by Chopin,
who refused to refute the merits of the motion, instead simply labeling the
allegations “unsubstantiated.”
      The Turners also alleged that Judge Porteous inhibited any investigation
of his relationships.   “He disclosed no pertinent material facts about his
relationship with Chopin, failed to address the discrete allegations known and
raised by the moving counsel and made deceptive statements that distorted the
factual record as to his relationship with the attorney at issue.” Id. at 135. As
alleged in the Report, his conduct “assured affirmance on appeal of his denial of
the recusal motion, and a victory below for Chopin.” Id. Allegedly, Chopin and
Porteous engaged in a “sustained effort to keep Judge Porteous’s hunting trips
a secret from litigants who would have reason to believe their interests before
the court might be affected.” Id. at 136 n.643. This is far more than an
allegation of friendship by the judge for an attorney and a witness.
      These allegations make it plausible that Chopin, Cenac, and Porteous
acted in their pecuniary self-interest at the expense of the court’s integrity.
Such self-dealing could have caused Judge Porteous to enter judgment against
the Turners. If this proves to be true, the judgment should not be enforced
because equity will not enforce judgments procured by fraud or bribery. See
Restatement (Second) of Judgments § 70 (1982).
      Next, the Turners allege that their personal injury claim is meritorious.
They claim the outcome of the trial hinged on credibility determinations made
by the trier of fact. If Judge Porteous had found Cenac to be less credible, it is



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plausible that the Turners would have prevailed. Because it is plausible that the
Turners may present a winning claim, we cannot say it is without merit.
      We also require a plausible allegation of fraud.           Simple fraud is
insufficient. If that is the case, a motion under Rule 60(b)(3) is the proper
vehicle to reopen judgment. See Beggerly, 524 U.S. at 46. Rather, the fraud
alleged must be of a greater order of magnitude. Describing the degree of
severity that separates the two types of fraud will always escape precision. Cf.
In re Levander, 180 F.3d 1114, 1119-20 (9th Cir. 1999); Wilkin v. Sunbeam
Corp., 466 F.2d 714, 717 (10th Cir. 1972); 11 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2870 (2d ed. 1987).
      The Turners’ complaint alleges facts that make it plausible that Chopin
and Cenac conspired with the district judge, and that Chopin and the judge –
both officers of the court – acted in a manner calculated to prevent this court
from undertaking meaningful appellate review. This court, like the public at
large, relies on the integrity and honesty of the district judges. We presume
judges to be honest. See Withrow v. Larkin, 421 U.S. 35, 47 (1975). When
confronted with such unusual facts, it is at least plausible that the district court
did not perform its task in the manner expected.
      This case’s historic context amplifies this concern. Judge Porteous is only
the eighth judge ever impeached and removed from office by the United States
Congress. When viewing the complaint in its proper context, assuming all the
facts alleged are true, and construing it in the light most favorable to the
Turners, we conclude that it is plausible that there was fraud of a sufficient
magnitude that the procedural requirements of Rule 60(b)(3) do not control.
      Our inquiry does not end there. The Turners must also allege that they
were not at fault for failing to uncover the fraud. The Turners argue that they
used every tool at their disposal during the original trial. The defendants
contend that this is not true, as the Turners could have sought to depose Judge

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Porteous or Chopin in order to develop a more detailed factual record. Yet the
Turners’ counsel did diligently bring a motion for recusal upon learning of Judge
Porteous’s trip with Chopin.      The House Report asserts that Chopin and
Porteous attacked the complaint in tandem to “seal off further inquiry into” the
relationship. H.R. Rep. No. 111-427, at 135.
      We disagree that the alleged scheme was discoverable by the Turners
simply because it was eventually uncovered by the House of Representatives.
The House of Representatives is part of a co-equal branch of government. It has
the power to compel testimony. See Watkins v. United States, 354 U.S. 178, 200-
201 (1957). It has the power to hold those who refuse to testify in contempt. Id.
at 207 n.45. By comparison, the Turners would have been forced to seek Judge
Porteous’s permission to conduct depositions. Regardless of any suggestions of
additional efforts they might have undertaken, the Turners’ ability to uncover
immediately after trial what the House Report later claimed was occurring was
virtually nonexistent.
      Assuming the allegations contained in the complaint are true, there is a
reasonable inference that Porteous and Chopin conspired to prevent the Turners
from ever learning the truth about Porteous’s bias. With the presiding judge and
opposing counsel both actively attempting to hide facts from the Turners, the
Turners have put forward sufficient facts to plausibly allege that they were not
at fault for failing to uncover the fraud.
      We are left with the last element. The Turners must allege they have no
adequate remedy at law. They do not. The opportunity to file a Rule 60(b)
motion passed long ago. See Fed. R. Civ. P. 60(c).
      We REVERSE the district court’s dismissal and REMAND.




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