FRAUD UPON THE COURT
We have previously stated that “fraud upon the court includes . . . fraud by an officer of the court, including an attorney.” In re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir. 2000). This would, at first blush, appear to support Conrad’s position. However, we have clarified in other cases that “[a]lthough perjury by a witness will not suffice, the involvement of an attorney, as an officer of the court, in a scheme to suborn perjury” constitutes fraud on the court. Cleveland Demolition Co. v. Azcon Scrap Corp., a Div. of Gold Fields Am. Indus., 827 F.2d 984, 986 (4th Cir. 1987), United States v. Conrad No. 16-6579 (4th Cir. Jan. 13, 2017)
Courts and authorities agree that “fraud upon the court” must be narrowly construed so that this “otherwise nebulous concept” does not “overwhelm the specific provision of 60(b)(3) and its time limitation and thereby subvert the balance of equities contained in the Rule.” Great Coastal Express, Inc. v. International Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982) (citing numerous cases).
Because the power to vacate a judgment for fraud upon the court is so free from procedural limitations, it “is limited to fraud that `seriously’ affects the integrity of the normal process of adjudication,” 12 James Wm. Moore et al., Moore’s Federal Practice P 60.21[a] (3d ed. 1999). For example, fraud upon the court includes fraud by bribing a judge, or tampering with a jury, or fraud by an officer of the court, including an attorney. See id. P 60.21[a], [b].In re Genesys Data Technologies 198 F.3d 128 (4th Cir. 1999)
“Fraud upon the court” should, we believe, 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 can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action. Great Coastal Exp. v. International Broth 675 F.2d 1349 (4th Cir. 1982)
“There is an irrefragable linkage between the courts’ inherent powers and the rarely-encountered problem of fraud on the court. Courts cannot lack the power to defend their integrity against unscrupulous marauders; if that were so, it would place at risk the very fundament of the judicial system.” Triffin, supra, 394 N.J.Super. at 253.
Tara points to cases which have permitted a judgment to be reopened some years after entry because a fraud was perpetrated upon the court. Von Pein v. Von Pein, 268 N.J.Super. 7, 632 A.2d 830 (App.Div. 1993) (concluding that a divorce judgment entered some six years earlier should be reopened because it had been obtained through fraud upon the court);
Hyland v. Kirkman, 157 N.J.Super. 565, 385 A.2d 284 (Ch.Div. 1978) (refusing to dismiss as untimely challenges to judgments entered in quiet title actions in the face of an allegation of “massive fraud upon the courts and land recordation system of the State.“). Id. at 570, 385 A.2d 284.
Perjurious testimony alone and not accompanied or concealed by other and collateral acts of fraud may be a ground for relief as a fraud upon the court in a proper case. The contrary view expressed in U.S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878), and recently repeated in Dowdy v. Hawfield, 189 F.2d 637 ( Ct. App., D.C. 1951), cert. den. 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. ___ (1951), when interpreting Federal Rule 60(b) is not favored by us. That view holds that perjurious testimony standing alone is intrinsic fraud and that relief for a fraud upon the court is limited to “frauds, extrinsic or collateral, to the matter tried by the court.” A public policy that there be an end to litigation is given for the distinction: “* * * the mischief of retrying every case in which the judgment or decree rendered on false testimony, given by perjured witnesses, * * *, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases.” U.S. v. Throckmorton, supra, 98 U.S. pp. 68-69, 25 L.Ed. p. 96.
Whether the Throckmorton principle is still controlling law in the federal courts is not clear. It has been suggested that the case may have been overruled by the subsequent decision in Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870 (1891).Publicker v. Shallcross, 3 Cir., 106 F.2d 949 ( C.C.A. 3 1939), cert. den. 308 U.S. 624, 84 L.Ed. 521 (1940).
However, both decisions were cited in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944), without giving a clear answer to the question. And see Josserand v. Taylor, 159 F.2d 249, 34 C.C.P.A., Patents, 824 ( Ct. Cust. Pat. App. 1946); Annotations, 126 A.L.R. 390; 88 A.L.R. 1201.
Both Rule 3:60-2 and Federal Rule 60(b) expressly abandon the distinction for the purposes of a motion by a party, or his legal representative, made within one year of the final judgment by providing that “the court may relieve a party or his legal representative, from a final judgment * * * for * * * (3) fraud (whether heretofore denominated intrinsic or extrinsic) * * * of an adverse party.” Balip Automotive Repairs, Inc., v. Atlantic Casualty Ins. Co., 7 N.J. 152 (1951), affirming 8 N.J. Super. 238 ( App. Div. 1950) which reversed on the merits 6 N.J. Super. 511 ( Law Div. 1949).
However, the fourth sentence of the two rules allowing relief without time limitation for “fraud upon the court” is not similarly specific. Nevertheless, upon principle, we hold that relief for fraud upon the court may be allowed under our rule whether the fraud charged is denominated intrinsic or extrinsic. The notion that repeated retrials of cases may be expected to follow the setting aside of judgments rendered on false testimony will not withstand critical analysis. Rather it is more logical to anticipate that the guilty litigant committing or suborning testimony will not risk pursuing the cause further. And, in any event, a court may not set aside a final judgment merely because some testimony is perjured. All perjury is an affront to the dignity of the court and to the integrity of the judicial process, but the law is not without other effective means to punish the perpetrator of the crime. Cf. Swanson v. Swanson, 8 N.J. 169 (1951).
Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all the circumstances not a bar to relief. Balip Automotive Repairs, Inc., v. Atlantic Casualty Ins. Co., supra. Clearly, the necessity to satisfy these tests before the judgment may be disturbed is itself a deterrent to repeated litigation of the same factual issues. See 22 Harvard Law Review, 600. For these reasons we agree that it is “a journey into futility to attempt a distinction between extrinsic and intrinsic matter.” Moore Rogers, Federal Relief from Civil Judgments, 55 Yale Law Journal, 623, at 658 (June 1946).
“* * * the spectacle of the machinery of the law bearing down mercilessly, and perhaps ruinously, to collect and deliver over the fruits of undoubted fraud (is) peculiarly odious.” 126 A.L.R. 393. Plainly, the encouragement of vexatious litigation is the lesser evil. We prefer to follow the equity of the matter and to take away an unjust judgment obtained by vital perjury when the injustice and inequity of allowing it to stand are made evident. “[A] fraud on the court occurs ‘where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.'” Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 298 (App. Div. 2010) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)).
“[U]nlike common law fraud on a party, fraud on a court does not require reliance.” Ibid. The Court in Shammas indicated that “[p]erjurious testimony alone and not accompanied or concealed by other and collateral acts of fraud may be a ground for relief [from judgment] as a fraud upon the court in a proper case.” Shammas, supra, 9 N.J. at 328. In re Estate of Tanksley DOCKET NO. A-1056-11T2 (N.J. Super. App. Div. Jan. 18, 2013) Von Pein v. Von Pein 632 A.2d 830 (N.J. Super. App. Div. 1993) Concluding that a divorce judgment entered some six years earlier should be reopened because it had been obtained through fraud upon the court [The court rejected a more limited rule that would limit relief for a fraud upon the court to “frauds, extrinsic or collateral, to the matter tried by the court”] We prefer to follow the equity of the matter and to take away an unjust judgment obtained by vital perjury when the injustice and inequity of allowing it to stand are made evident. [ Id. at 330, 88 A.2d 204]. Pavlicka v. Pavlicka 202 A.2d 200 (N.J. Super. App. Div. 1964) ”
On motion, with briefs, and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; * * *. The motion shall be made within a reasonable time * * *. This rule does not limit * * * the court’s power to set aside a judgment, order or proceeding for fraud upon the court. * * *”Deutsche Bank Nat’l Trust v. Eddings DOCKET NO. A-4022-11T2 (N.J. Super. App. Div. Jun. 27, 2013)
We reject defendants’ argument that Rule 4:50-3 applies because plaintiff committed “fraud upon the court” by obtaining final judgment knowing it lacked standing. Any such alleged fraud would be against a party, not the court, and thus not within the ambit of the Rule. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:50-3 (2013); see also Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 53 (App. Div. 2004) (noting relief may be granted from a judgment obtained by fraud upon the court without limitation as to time). Defendants may not circumvent the one-year limitation on motions to vacate final judgment under Rule 4:50-1(c) by recasting their claims under Rule 4:50-3. See Tara Enters., Inc., supra, 369 N.J. Super. at 53. P Gaskill v. Abex Corp. DOCKET NO. A-4871-09T1 (N.J. Super. App. Div. Dec. 11, 2012) 7 more… The concept of fraud upon the court is most often invoked as a ground for vacating a judgment alleged to have been procured by perjured testimony or the submission of falsified evidence. See, e.g., Shammas v. Shammas, 9 N.J. 321, 330 (1952) (“Perjured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposefully falsely given, and to have been material to the issue tried . . . .”); Gilgallon v. Bond, 279 N.J. Super. 265, 267 (App. Div. 1995). Rule 4:50-1(c) expressly authorizes a court to vacate a judgment procured through fraud, as well as “other misconduct of an adverse party.” See Von Pein v. Von Pein, 268 N.J. Super. 7, 16 (App. Div. 1993) (conspiring to “hide assets and deprive defendant and the court of knowledge to the true facts” is also a ground to vacate.)