United States District Court, E.D. Missouri, Eastern Division
R&R PROPANE, LLC, LAURA BORMAN, and RICHARD BORMAN, Plaintiffs,
BILL ANGLIN and ROGER ANDERSON d/b/a ANDERSON'S AUTO SALES, Defendants.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Motion to Set Aside
Judgment and Settlement Agreement filed by attorney Joshua M.
Avigad on behalf of Plaintiff R&R Propane, LLC (Doc. 46).
The matter is fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. §
636(c) (Doc. 9). For the following reasons, the Court will
DENY the Motion to Set Aside Judgment and
21, 2016, Plaintiffs R&R Propane, LLC
(“R&R”), Laura Borman, and Richard Borman
(collectively the “Bormans”) filed a petition in
the Twenty-Third Judicial Circuit, Jefferson County against
Defendant Bill Anglin (“Anglin”) and his employer
Defendant Roger Anderson (“Anderson”) doing
business as Anderson's Auto Sales for negligence (Doc.
2). The petition arises from an accident that occurred on
November 10, 2011 when a 1993 International Harvester
operated by Anglin rolled into a 30, 000 gallon propane
storage tank located on Plaintiffs' property causing the
release of liquid propane and resulting in an explosion
(Id.). On August 1, 2016, Defendants removed the
action to this Court, the Court subsequently entered a case
management order, and after completing alternative dispute
resolution, the parties reached a settlement (Docs. 1, 13,
26, 39). On December 5, 2017, the Parties filed a Stipulation
for Dismissal signed by all of the parties (Doc. 41). The
Stipulation for Dismissal does not reference the settlement
agreement or request the Court retain jurisdiction to enforce
the settlement agreement (Id.). The Court
acknowledged the stipulation and closed the case on December
7, 2017 (Doc. 42).
the week of December 18, 2017, Mr. Avigad, Lawrence Kaplan,
and Catherine Grantham (hereinafter “New
Counsel”) appeared in this closed action for R&R
(Docs. 43-45). Mr. Kaplan and Ms. Grantham indicate in their
entries of appearances that Plaintiff Richard Borman
instituted this cause of action and settled the case to the
detriment of R&R and its managing member, Roy Renegar
(Docs. 43, 44). Sean Flaherty (“Prior Counsel”)
represented Plaintiffs R&R, Richard Borman and Laura
Borman during the pendency of the action and remains counsel
of record for Plaintiffs. On December 20, 2017, New Counsel
filed the current motion on behalf of R&R (Doc. 46). On
December 22, 2017, the Court entered an order setting a
briefing schedule and directing New Counsel to file a
memorandum on behalf of R&R addressing the Court's
jurisdiction to take up the motion. In New Counsel's
amended response on behalf of R&R regarding the
Court's jurisdiction, counsel suggests the Court has
jurisdiction over the pending motion pursuant to Federal
Rules of Civil Procedure 11 and 60 (Doc. 52 at 2). New
Counsel suggests that Plaintiffs “committed a fraud on
the court” (Id.). New Counsel argues that a
voluntary dismissal does not deprive a district court of
jurisdiction to hear a Federal Rule of Civil Procedure 60(b)
matter (Id. at 3).
December 26, 2017, New Counsel filed a Motion for Co-Counsel
to Produce All Settlement Related Documents (Doc. 50). On
January 5, 2018, New Counsel filed a Notice of Removal
purporting to remove No. 17JE-CC00935, an interpleader case
filed by Thurman, Howald, Weber, Senkel & Norrick, LLC
pending against Roy Renegar, R&R Propane, LLC, Kimberly
A. Burch f/n/a Kimberly Renegar, Richard Borman, Laura
Borman, and Kaplan Associates (Doc. 53).
“federal courts do not retain authority to enforce
settlement agreements unless the dismissal order states that
the district court is retaining jurisdiction over the
agreement or the court incorporates the terms of the
agreement into an order.” Jenkins v. Kansas City
Mo. Sch. Dist., 516 F.3d 1074, 1081 (8th Cir. 2008);
Miener v. Mo. Dep't of Mental Health, 62 F.3d
1126, 1127 (8th Cir. 1995) (same). However, some circuits
hold that the Court may retain jurisdiction to set aside a
settlement agreement and associated judgment as a result of
that settlement agreement pursuant to Federal Rule of Civil
Procedure 60(b). Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 378 (1994) (“It must be
emphasized that what respondent seeks in this case is
enforcement of the settlement agreement, and not merely
reopening of the dismissed suit by reason of breach of the
agreement that was the basis for dismissal. Some Courts of
Appeals have held that the latter can be obtained under
Federal Rule of Civil Procedure 60(b)(6).”). See
also Pedroza v. Lomas Auto Mall, Inc., 304 F.R.D. 307,
321 (D.N.M. 2014) (listing cases from the 6th, 7th, 10th, and
Rule of Civil Procedure 60(b) provides, in relevant part:
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) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; . .
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(3), (6). To prevail upon a Rule
60(b)(3) motion, [Movant] must show, with clear and
convincing evidence, that the opposing party engaged
in a fraud or misrepresentation that prevented the movant
from fully and fairly presenting [its] case.”
United States v. Metro. St. Louis Sewer Dist., 440
F.3d 930, 935 (8th Cir. 2006) (internal quotations marks
omitted) (emphasis added). Rule 60(b)(3) therefore
contemplates fraud by an adverse party. Fraud by the
party's own counsel or coplaintiffs, as alleged here, is
properly raised under Federal Rule of Civil Procedure(b)(6).
See McKinney v. Boyle, 404 F.2d 632, 634 (9th Cir.
60(b)(6) is the catchall provision which allows a court to
relieve a party from final judgment for “any other
reason that justifies relief.” Fed.R.Civ.P. 60(b)(6);
Jones v. Swenson, 512 F.3d 1045, 1049 (8th Cir.
2008). Rule 60(b) relief is an extraordinary remedy which
requires the moving party to demonstrate exceptional
circumstances are present in order to ...