United States District Court, District of Nebraska
MEMORANDUM AND ORDER
Laurie Smith Camp Chief United States District Judge
This matter is before the Court on the Plaintiff’s Rule 60(b) Motion to Vacate Judgment (Filing No. 52). Plaintiff Mayra Saldana (“Saldana”) contends that newly discovered evidence demonstrates that an affidavit presented by Defendant Rhonda Lahm (“Lahm”) in support of her Motion for Summary Judgment was false. While the parties’ briefs and evidence presented in connection with the pending motion do suggest that Lahm’s earlier affidavit (Filing No. 42-9) was somewhat misleading, the Motion to Vacate Judgment will be denied.
STANDARD OF REVIEW
Fed. R. Civ. P. 60 provides in pertinent 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: . . . .
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party[.]
To prevail under Rule 60(b)(2) a moving party must demonstrate that “(1) the evidence was discovered after trial; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result.” U.S. Xpress Enterprises, Inc. v. J. B. Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003) (citation omitted).
To prevail under Rule 60(b)(3) a moving party must demonstrate, “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.” Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005).
Motions to vacate judgment are disfavored. Heim v. Comm’r, 872 F.2d 245, 247 (8th Cir. 1989).
Saldana initiated this action on May 31, 2013. Discovery commenced on November 18, 2013 (Filing No. 33, ¶ 1.) Lahm moved for summary judgment on January 17, 2014 (Filing No. 40). In support of her motion, Lahm submitted her affidavit (Filing No. 40-9), describing how the Nebraska Department of Motor Vehicles (“DMV”) used the Systematic Alien Verification for Entitlements (“SAVE”) Program administered by the United States Citizenship and Immigration Services (“USCIS”), a division of the Department of Homeland Security. Lahm stated:
11. The DMV undertakes this procedure when processing an application from any non-U.S. citizen. From a lawful status verification perspective, the DMV does not differentiate among non-U.S. citizen immigration statuses, nor does it apply a more or less stringent verification process for an applicant of ...