NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-2414 __________
E. THOMAS SCARBOROUGH, III, Appellant
v.
COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY; SUPREME COURT OF PENNSYLVANIA ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-18-cv-02436) District Judge: Honorable Jeffrey L. Schmehl ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 9, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed: January 18, 2024) ___________
OPINION * ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Thomas E. Scarborough III appeals from the District Court’s
order denying his motion to alter or amend a judgment under Rule 59(e) of the Federal
Rules of Civil Procedure. For the following reasons, we will affirm.
In June 2018, Scarborough commenced an action pursuant to 42 U.S.C. § 1983
claiming that his due process rights had been violated during his child-custody
proceedings in Northampton County. 1 In the complaint, which he later amended, he
named as defendants the Court of Common Pleas of Northampton County and the
Supreme Court of Pennsylvania. The court defendants moved to dismiss the amended
complaint on the ground that they were immune from suit under the Eleventh
Amendment. The District Court granted their motion and dismissed the amended
complaint. We affirmed. Scarborough v. Ct. of Common Pleas of Northampton Cnty.,
794 F. App’x 238, 240 (3d Cir. 2020) (per curiam) (not precedential).
Approximately one and a half years later, Scarborough moved the District Court to
“vacate a judgment obtained by fraud on the court” under Rule 60(d)(3). 2 Mot. i, ECF
No. 17; see Fed. R. Civ. P. 60(d)(3) (recognizing an independent action to set aside a
1 Specifically, Scarborough asserted that the Court of Common Pleas violated his due- process rights by improperly deferring to recommendations from a master; granting primary physical custody to Scarborough’s ex-wife without holding a trial; ruling that Scarborough had agreed to a custody schedule when he had not actually agreed to it; and failing to fully consider his submissions. He also claimed that the Pennsylvania Supreme Court violated his due-process rights by dismissing his appeals. 2 In addition to moving the District Court to vacate the custody order based on fraud on the court, Scarborough also asked the District Court “for judicial notice, for expedited discovery, for preliminary injunctive relief, for partial summary judgment and for leave to file an amended complaint.” Mot., ECF No. 17. 2 judgment for fraud on the court). In the motion, he continued to challenge the legitimacy
of the state-court custody proceedings and asked the District Court to vacate the
unconstitutional custody order on the ground that his ex-wife had obtained primary
custody of their daughter through fraud. The District Court denied relief, explaining that
Scarborough could not use Rule 60(d)(3) to address alleged fraud in the state-court
proceedings. The District Court further explained that, to the extent that Scarborough
was in essence seeking reconsideration of the order dismissing his amended complaint,
he could not use Rule 60(d)(3) to relitigate matters of disagreement with the District
Court. The District Court also denied Scarborough’s various other requests for relief,
including, as discussed further below, his request to file a post-judgment amended
complaint.
Scarborough then filed a motion pursuant to Rule 59(e) challenging these rulings.
The District Court denied relief, stating that Scarborough had yet again essentially recited
the allegations of the underlying amended complaint. With respect to Scarborough’s
request to file a post-judgment amended complaint, the District Court stated that such use
of Rule 59(e) was improper. Scarborough appealed.
We have jurisdiction under 28 U.S.C. § 1291. We first stress the narrow scope of
this appeal. Scarborough’s notice of appeal is timely only as to the District Court’s order
denying his fraud-on-the-court motion and its subsequent order denying reconsideration
thereof, see Fed. R. App. P. 4(a)(4)(iv) (stating that a timely filed Rule 59 motion tolls
the time to file an appeal); York Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399,
401–02 (7th Cir. 2011); it is not timely as to the District Court’s underlying order
3 dismissing the amended complaint—which, in any event, we already reviewed and
affirmed, see Scarborough v. Ct. of Common Pleas of Northampton Cnty., 794 Fed.
App'x 238 (3d Cir. 2020); Fed. R. App. P. 4(a)(4)(A)(vi) (stating that a Rule 60 motion
suspends a judgment’s finality only if it filed within the time to file a Rule 59(e) motion;
that is, within twenty-eight days of its entry). We review the District Court’s order
denying the two motions for an abuse of discretion. See Max’s Seafood Café ex rel. Lou-
Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); United States v. Sierra Pac.
Indus., Inc., 862 F.3d 1157, 1166 (9th Cir. 2017).
We have carefully reviewed the record and see no abuse of discretion here. First,
the District Court acted within its discretion in denying Scarborough relief as to his fraud-
on-the-court claim. A district court “may set aside a judgment based upon its finding of
fraud on the court when an officer of the court has engaged in ‘egregious misconduct,’”
such as bribery or fabrication of evidence. In re Bressman, 874 F.3d 142, 150 (3d Cir.
2017) (quoting Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005)). Such a
finding “must be supported by clear, unequivocal and convincing evidence” of “(1) an
intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself;
and (4) in fact deceives the court.” Herring, 424 F.3d at 386 (citation omitted). In this
case, Scarborough asked the District Court to “quash the unconstitutional [custody]
order” on the ground that his ex-wife had fraudulently advised the state court that he had
consented to the custody agreement. Br. 30, ECF No. 8. As the District Court explained,
however, Scarborough could not use an independent action under Rule 60(d)(3) to
remedy alleged fraud on the state court, and Scarborough did not provide any evidence of
4 fraud directed at the District Court. See United States v. Washington, 549 F.3d 905
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 23-2414 __________
E. THOMAS SCARBOROUGH, III, Appellant
v.
COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY; SUPREME COURT OF PENNSYLVANIA ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-18-cv-02436) District Judge: Honorable Jeffrey L. Schmehl ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) January 9, 2024
Before: KRAUSE, MATEY, and CHUNG, Circuit Judges
(Opinion filed: January 18, 2024) ___________
OPINION * ___________
PER CURIAM
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Thomas E. Scarborough III appeals from the District Court’s
order denying his motion to alter or amend a judgment under Rule 59(e) of the Federal
Rules of Civil Procedure. For the following reasons, we will affirm.
In June 2018, Scarborough commenced an action pursuant to 42 U.S.C. § 1983
claiming that his due process rights had been violated during his child-custody
proceedings in Northampton County. 1 In the complaint, which he later amended, he
named as defendants the Court of Common Pleas of Northampton County and the
Supreme Court of Pennsylvania. The court defendants moved to dismiss the amended
complaint on the ground that they were immune from suit under the Eleventh
Amendment. The District Court granted their motion and dismissed the amended
complaint. We affirmed. Scarborough v. Ct. of Common Pleas of Northampton Cnty.,
794 F. App’x 238, 240 (3d Cir. 2020) (per curiam) (not precedential).
Approximately one and a half years later, Scarborough moved the District Court to
“vacate a judgment obtained by fraud on the court” under Rule 60(d)(3). 2 Mot. i, ECF
No. 17; see Fed. R. Civ. P. 60(d)(3) (recognizing an independent action to set aside a
1 Specifically, Scarborough asserted that the Court of Common Pleas violated his due- process rights by improperly deferring to recommendations from a master; granting primary physical custody to Scarborough’s ex-wife without holding a trial; ruling that Scarborough had agreed to a custody schedule when he had not actually agreed to it; and failing to fully consider his submissions. He also claimed that the Pennsylvania Supreme Court violated his due-process rights by dismissing his appeals. 2 In addition to moving the District Court to vacate the custody order based on fraud on the court, Scarborough also asked the District Court “for judicial notice, for expedited discovery, for preliminary injunctive relief, for partial summary judgment and for leave to file an amended complaint.” Mot., ECF No. 17. 2 judgment for fraud on the court). In the motion, he continued to challenge the legitimacy
of the state-court custody proceedings and asked the District Court to vacate the
unconstitutional custody order on the ground that his ex-wife had obtained primary
custody of their daughter through fraud. The District Court denied relief, explaining that
Scarborough could not use Rule 60(d)(3) to address alleged fraud in the state-court
proceedings. The District Court further explained that, to the extent that Scarborough
was in essence seeking reconsideration of the order dismissing his amended complaint,
he could not use Rule 60(d)(3) to relitigate matters of disagreement with the District
Court. The District Court also denied Scarborough’s various other requests for relief,
including, as discussed further below, his request to file a post-judgment amended
complaint.
Scarborough then filed a motion pursuant to Rule 59(e) challenging these rulings.
The District Court denied relief, stating that Scarborough had yet again essentially recited
the allegations of the underlying amended complaint. With respect to Scarborough’s
request to file a post-judgment amended complaint, the District Court stated that such use
of Rule 59(e) was improper. Scarborough appealed.
We have jurisdiction under 28 U.S.C. § 1291. We first stress the narrow scope of
this appeal. Scarborough’s notice of appeal is timely only as to the District Court’s order
denying his fraud-on-the-court motion and its subsequent order denying reconsideration
thereof, see Fed. R. App. P. 4(a)(4)(iv) (stating that a timely filed Rule 59 motion tolls
the time to file an appeal); York Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399,
401–02 (7th Cir. 2011); it is not timely as to the District Court’s underlying order
3 dismissing the amended complaint—which, in any event, we already reviewed and
affirmed, see Scarborough v. Ct. of Common Pleas of Northampton Cnty., 794 Fed.
App'x 238 (3d Cir. 2020); Fed. R. App. P. 4(a)(4)(A)(vi) (stating that a Rule 60 motion
suspends a judgment’s finality only if it filed within the time to file a Rule 59(e) motion;
that is, within twenty-eight days of its entry). We review the District Court’s order
denying the two motions for an abuse of discretion. See Max’s Seafood Café ex rel. Lou-
Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999); United States v. Sierra Pac.
Indus., Inc., 862 F.3d 1157, 1166 (9th Cir. 2017).
We have carefully reviewed the record and see no abuse of discretion here. First,
the District Court acted within its discretion in denying Scarborough relief as to his fraud-
on-the-court claim. A district court “may set aside a judgment based upon its finding of
fraud on the court when an officer of the court has engaged in ‘egregious misconduct,’”
such as bribery or fabrication of evidence. In re Bressman, 874 F.3d 142, 150 (3d Cir.
2017) (quoting Herring v. United States, 424 F.3d 384, 390 (3d Cir. 2005)). Such a
finding “must be supported by clear, unequivocal and convincing evidence” of “(1) an
intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself;
and (4) in fact deceives the court.” Herring, 424 F.3d at 386 (citation omitted). In this
case, Scarborough asked the District Court to “quash the unconstitutional [custody]
order” on the ground that his ex-wife had fraudulently advised the state court that he had
consented to the custody agreement. Br. 30, ECF No. 8. As the District Court explained,
however, Scarborough could not use an independent action under Rule 60(d)(3) to
remedy alleged fraud on the state court, and Scarborough did not provide any evidence of
4 fraud directed at the District Court. See United States v. Washington, 549 F.3d 905, 912
(3d Cir. 2008) (explaining that “a federal court has the inherent power to vacate its own
judgments when they have been procured by fraud” (emphasis added)). 3
Second, the District Court did not err in denying Scarborough’s request for leave
to file a post-judgment amended complaint. Among the factors justifying denial of leave
to amend under Rule 15(a)(2) are undue delay, bad faith or dilatory motive, prejudice to
the opposition, repeated failures to correct deficiencies with previous amendments, and
futility of the amendment. Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (citing
Forman v. Davis, 371 U.S. 178 (1962)). Scarborough explains that he wished to file a
new pleading in order to assert claims against Northampton County officers who “were
the policy makers with regard to intentional discrimination, maliciously, abusing
discovery and concealing fraud on the court.” Br. 40, ECF No. 8. But Scarborough had
ample opportunity earlier in the case to name new defendants. It was thus within the
District Court’s discretion to deny him leave to do so in connection with his Rule
3 To the extent that Scarborough argues that the District Court erred in denying his motion in part on the ground that it was time-barred, he misconstrues the District Court’s reasoning. The District Court did not consider the timeliness of the motion in denying relief. Scarborough also argues that the District Court erred in declining to consider several new claims that he presented in his motion, including claims under “§ 1985(3); § 1986; § 1988; § 12202, Title VII of the Civil Rights Act (1964), 23 Pa. Cons. Stat. Ann. § 5327(a); § 5328(a)(b) and § 6303.” Br. 29, ECF No. 8. Scarborough could not present these new causes of action in his fraud-on-the-court motion, which, as previously noted, is limited to allegations that “an officer of the court has engaged in ‘egregious misconduct,’” such as bribery or fabrication of evidence. In re Bressman, 874 F.3d at 150. Further, as discussed below, he failed to show that he was entitled to amend his complaint to assert new claims.
5 60(d)(3) motion, which he filed more than three years after the District Court had
dismissed his amended complaint. See, e.g., Cureton v. Nat’l Collegiate Athletic Ass’n,
252 F.3d 267, 273–74 (3d Cir. 2001) (affirming denial of post-judgment motion to amend
because, inter alia, the motion was filed three years after the complaint was filed and
almost two-and-a-half years after the plaintiffs learned the factual information on which
the proposed amendment relied). For this reason, the District Court likewise acted within
its discretion in denying Scarborough’s request for discovery and a “preliminary
injunction” relating to the proposed defendants.
We have considered Scarborough’s remaining arguments and conclude that they
are meritless. Accordingly, we will affirm.