United States District Court, W.D. Louisiana, Lafayette Division
DONALD E. WALTER, UNITED STATES DISTRICT
the Court is a motion filed by the plaintiff, Brandon Scott
Lavergne (“Lavergne”), entitled “Petition
For Relief From Judgement Rule 60(b) and (d) FRCP.”
See Record Document 90. For the following reasons,
Lavergne’s motion is DENIED.
pled guilty to two counts of first-degree murder and received
concurrent sentences of life in prison at hard labor, without
benefit of parole, probation, or suspension of sentence. On
April 10, 2018, this Court, after considering
Lavergne’s objections, adopted the Report and
Recommendation issued by Magistrate Judge Kathleen Kay and
denied Lavergne’s petition for writ of habeas corpus.
See Record Document 86. The Court also denied a
certificate of appealability. See id. Thereafter, on
June 17, 2019, the Fifth Circuit also denied Lavergne’s
request for a certificate of appealability. See
Record Document 88. Lavergne now requests relief pursuant to
Federal Rule of Civil Procedure 60(b) and (d), suggesting
that this Court “should set aside the judgement denying
 habeas corpus relief due to the fraud of both the
Magistrate and State.” Record Document 90 at 4.
Notably, many of the arguments made in Lavergne’s
motion currently pending before the Court were made both in
Lavergne’s objections to the Report and Recommendation
and in his arguments to the Fifth Circuit.
relies upon Federal Rule of Civil Procedure 60(b), which
provides that “[o]n 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).
has not shown fraud, misrepresentation, or misconduct by an
opposing party as is required by Rule 60(b). Furthermore, he
cannot rely on the provisions of Rule 60(b)(3) because
motions made pursuant to that subsection “must be made
. . . no more than a year after the entry of the judgment. .
. .” Fed.R.Civ.P. 60(c)(1). The judgment adopting the
Report and Recommendation was entered on April 26, 2018, and
Lavergne filed the instant motion on September 19, 2019.
Therefore, even if Lavergne were otherwise entitled to
relief, which he is not, his motion would be untimely as to
claims under this subsection.
a motion pursuant to Rule 60(b)(3) must be filed within one
year of the judgment, Rule 60(d)(3) functions as a savings
clause, by allowing courts to “set aside a judgment for
fraud on the court” without a strict time bar. However,
the standard for “fraud on the court” is
demanding: “[O]nly the most egregious misconduct, 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 fraud on the court.”
Jackson v. Thaler, 348 Fed.App’x 29, 34 (5th
Cir. 2009) (quoting Rozier v. Ford Motor Co., 573
F.2d 1332, 1338 (5th Cir. 1978)). In the instant case, there
simply was no fraud on the court. Lavergne has not shown that
anyone hatched “an unconscionable plan or scheme . . .
designed to improperly influence the court in its
decision.” Rozier, 573 F.2d at 1338 (quotation
and citation omitted). “Fraud upon the court requires
that there was a material subversion of the legal process
such as could not have been exposed within the one-year
window” provided by Rule 60(c). Apotex Corp. v.
Merck & Co., 507 F.3d 1357, 1360 (Fed. Cir. 2007).
In Lavergne’s case, there was no material subversion of
the legal process. Even if there had been material subversion
of the legal process, the circumstances in this case would
not have prevented its exposure for so long that
Lavergne’s only recourse was Rule 60(d)(3).
IS ORDERED that Lavergne’s motion (Record
Document 90) is DENIED.