15-769-cv, 15-913-cv
Commercial Union Ins. Co. v. Lord

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of May, two thousand sixteen.

PRESENT:           JOSÉ A. CABRANES,
                   CHESTER J. STRAUB,
                   RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.


COMMERCIAL UNION INSURANCE COMPANY,

                             Plaintiff-Appellee,

                             v.                            Nos. 15-769-cv, 15-913-cv

FRANKLIN LORD, JR.,

                             Defendant-Appellant.

SHARON SCHUMANN,

                             Defendant.



FOR PLAINTIFF-APPELLEE:                                 David R. Hornig & Val Wamser, Nicoletti
                                                        Hornig & Sweeney, New York, NY.

FOR DEFENDANT-APPELLANT:                                Franklin Lord, Jr., Stonington, CT.



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      Appeal from a February 13, 2015 order of the United States District Court for the District of
Connecticut (Dominic J. Squatrito, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court is AFFIRMED.

        Defendant-appellant Franklin Lord, Jr., (“Lord”) appeals from a February 13, 2015 order of
the District Court denying his March 27, 2014 motion to reopen its October 7, 2005 grant of
summary judgment to plaintiff-appellee Commercial Union Insurance Company (“Commercial
Union”). See Commercial Union Ins. Co. v. Lord, 392 F. Supp. 2d 402 (D. Conn. 2005), aff’d sub nom.
Commercial Union v. Lord, 224 F. App’x 41 (2d Cir. 2007). Lord filed his motion to reopen the District
Court’s 2005 judgment pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

         We review the denial of a Rule 60(b) motion for “abuse of discretion.” See Gomez v. City of
New York, 805 F.3d 419, 423 (2d Cir. 2015).1 “A district court is said to abuse its discretion if it
bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence, or renders a decision that cannot be located within the range of permissible decisions.” Id.
(alterations and internal quotation marks omitted). Upon independent review of the record and
relevant law, we conclude that the District Court did not abuse its discretion here.

         Rule 60(b)(3) provides that, “[o]n motion and just terms, the court may relieve a
party . . . from a final judgment . . . for . . . fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). Such a motion
must be made “no more than a year after the entry of the judgment.” Fed. R. Civ. P. 60(c)(1). Lord
filed his motion more than eight years after the District Court’s entry of judgment. His motion is
therefore untimely insofar as it is predicated on fraud that Commercial Union allegedly perpetrated
against him.

         A “motion to vacate for fraud committed upon the court,” however, “is not subject to [Rule
60(b)’s] one year limitation period.” King v. First Am. Investigations, Inc., 287 F.3d 91, 95 (2d Cir. 2002);
see Fed. R. Civ. P. 60(d)(3) (“This rule does not limit a court’s power to . . . set aside a judgment for
fraud on the court.”). Nevertheless, insofar as Lord’s motion is predicated on fraud that Commercial
Union allegedly perpetrated against the District Court, it is meritless. “Fraud upon the court[,] as
distinguished from fraud on an adverse party[,] is limited to fraud which seriously affects the


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      “As we have often explained, ‘abuse of discretion’ is a distinctive term of art that is not meant
as a derogatory statement about the district judge whose decision is found wanting.” Vill. of Freeport
v. Barrella, 814 F.3d 594, 610–11 (2d Cir. 2016) (some internal quotation marks omitted).

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integrity of the normal process of adjudication,” and “should embrace only that species of fraud
which does or attempts to . . . defile the court itself, or is a fraud perpetrated by officers of the court
so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging
cases.” King, 287 F.3d at 95 (alterations and internal quotation marks omitted). Lord’s allegations do
not rise to this level of severity.

                                            CONCLUSION

       We have considered all of Lord’s arguments on appeal and found them to be without merit.
Accordingly, the February 13, 2015 order of the District Court is AFFIRMED.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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