United States District Court, D. Nebraska
M. Gerrard, United States District Judge.
matter is before the Court on a "notice" filed by
the plaintiffs that the Court understands to be a motion for
relief from a final judgment pursuant to Fed.R.Civ.P. 60(b).
Filing 27. The motion will be denied.
plaintiffs expressly identify Rules 60(b)(2), (4), and (6) as
the basis for their motion. Filing 27 at 1. To support it,
they provide 43 pages of additional argument and over 100
pages of attached evidence. See filing 27. But the gravamen
of their argument and evidence is that the Court committed
legal error in granting the defendants' motion for
judgment on the pleadings (filing 24) and dismissing the
plaintiffs' complaint. Filing 25.
begin with, a Rule 60(b)(2) motion based on the discovery of
new evidence must show (1) that the evidence was discovered
after the court's order, (2) that the movant exercised
diligence to obtain the evidence before entry of the order,
(3) that the evidence is not merely cumulative or impeaching,
(4) that the evidence is material, and (5) that the evidence
would probably have produced a different result. Webb v.
Exxon Mobil Corp., 856 F.3d 1150, 1159-60 (8th Cir.
2017). The plaintiffs have made none of those showings. Many
of the attachments to the plaintiffs' motion have already
been presented to the Court in one form or another. The
plaintiffs have done nothing to explain why any new evidence
was not already presented. And the Court finds no basis to
conclude that any new evidence would have any effect on the
outcome of the proceeding. Motions under Rule 60(b)(2) on the
ground of newly discovered evidence are viewed with disfavor,
U.S. Xpress Enterprises, Inc. v. J.B. Hunt Transp.,
Inc., 320 F.3d 809, 815 (8th Cir. 2003), and there is no
support for the plaintiffs' motion here.
plaintiffs also suggest that the Court's judgment is
void. Filing 27 at 2-4. But the basis for that suggestion
seems to be that the Court "lost subject matter
jurisdiction" by committing the legal errors the
plaintiffs assert. See filing 27 at 42. And a Rule
60(b)(4) motion to void the judgment for lack of subject
matter jurisdiction will succeed only if the absence of
jurisdiction was so glaring as to constitute a total want of
jurisdiction or a plain usurpation of power so as to render
the judgment void from its inception. Hunter v.
Underwood, 362 F.3d 468, 475 (8th Cir. 2004).
another way, such plain usurpation of power occurs when there
is a total want of jurisdiction as distinguished from an
error in the exercise of jurisdiction. Id. An error
in interpreting jurisdiction or in assessing jurisdictional
facts does not render the judgment a complete nullity or a
plain usurpation of power for purposes of Rule
60(b)(4). Id. The plaintiffs seem to be
suggesting that the Court had jurisdiction, but somehow made
a mistake and lost it along the way. They have identified no
basis to find that the Court's judgment was void ab
initio, as opposed to at most an erroneous
interpretation or assessment of jurisdiction.
the plaintiffs also cite Rule 60(b)(6), which provides for
relief from a judgment for "any other reason that
justifies relief." But relief is available under Rule
60(b)(6) only where exceptional circumstances have denied the
moving party a full and fair opportunity to litigate its
claim and have prevented it from receiving adequate redress.
Murphy v. Missouri Dep't of Corr., 506 F.3d
1111, 1117 (8th Cir. 2007); see Buck v. Davis, 137
S.Ct. 759, 777-78 (2017). And Rule 60(b) is not a vehicle for
simple reargument on the merits, Broadway v. Norris,
193 F.3d 987, 990 (8th Cir. 1999), nor is it a substitute for
a timely appeal, Arnold v. Wood, 238 F.3d 992, 998
(8th Cir. 2001). The plaintiffs' insistence that the
Court erred in dismissing their complaint is not an
extraordinary circumstance-it is, in fact, quite ordinary for
the losing party to a lawsuit to believe that the Court got
it wrong. It does not warrant relief under Rule 60(b)(6).
IT IS ORDERED that the plaintiffs' Rule 60(b) motion
(filing 27) is denied.
 That is particularly true because much
of the plaintiffs' focus is on the issues that they
uniquely asserted in their purported amended complaint.
Compare filing 23 with filing 27. But the plaintiffs have
done nothing to demonstrate that the Court erred in striking
their amended complaint because of their failure to comply
with court rules. Filing 24 at 11. The plaintiffs go so far
as to complain that the undersigned "never says on what
legal basis he decided to strike it, " filing 27 at 9,