Kirklin v. Stone

D. Colorado

Kirklin v. Stone

191 F. Supp. 2d 1198, 2002 U.S. Dist. LEXIS 11002, 2002 WL 424443

CourtDistrict Court, D. Colorado

DecidedJanuary 23, 2002

DocketCIV.00-B-1613

StatusPublished

This text of 191 F. Supp. 2d 1198 (Kirklin v. Stone) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kirklin v. Stone, 191 F. Supp. 2d 1198, 2002 U.S. Dist. LEXIS 11002, 2002 WL 424443 (D. Colo. 2002).

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Opinion

ORDER

BABCOCK, Chief Judge.

On December 21, 2001, plaintiffs filed their “Motion For Relief From Judgment Under Rule 60(b)(2)(3)(6), F.R.C.P.” The sheriff defendants and school defendants have responded to the motion.

Plaintiffs’ motion proffers as newly discovered evidence a journal by Eric Harris and reports by the Brown family.

“Rule 60(b) relief is only appropriate under extraordinary circumstances.” Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir.1994). I analyze a Rule 60(b)(2) motion based upon the ground of newly discovered evidence according to the same standard as that applied under Rule 59. My November 27, 2001 Order of Dismissal in this case incorporated the legal analysis and conclusions set forth in the companion case of Castaldo, et al. v. Jefferson County Sheriff John C. Stone, 192 F.Supp.2d 1124 (D.Colo.2001). The controlling law of duty, causation, and immunity set forth in Castaldo, as applied to this case, remains unchanged. First, I will assume that the Harris journal here is newly discovered and could not have been discovered through the exercise of diligence. That assumption appears unwarranted, however, as to the Brown reports. I next conclude that under Castaldo’s legal matrix, such evidence is cumulative, immaterial, and has no probability of changing the result.

To obtain relief pursuant to Fed. R.Civ.P. 60(b)(3) for fraud, misrepresenta *1200 tion or other misconduct of an adverse party, the movant must establish such conduct by clear and convincing evidence. Additionally, the fraud must have prevented the moving party from fully and fairly being heard. Plaintiffs have failed to meet their Rule 60(b)(3) burden.

Finally, plaintiffs have failed to show such extraordinary circumstances as would justify relief pursuant to Fed.R.Civ.P. 60(b)(6).

IT IS THEREFORE ORDERED that the motion is DENIED.

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ORDER

BABCOCK, Chief Judge.

On December 21, 2001, plaintiffs filed their “Motion For Relief From Judgment Under Rule 60(b)(2)(3)(6), F.R.C.P.” The sheriff defendants and school defendants have responded to the motion.

Plaintiffs’ motion proffers as newly discovered evidence a journal by Eric Harris and reports by the Brown family.

“Rule 60(b) relief is only appropriate under extraordinary circumstances.” Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1330 (10th Cir.1994). I analyze a Rule 60(b)(2) motion based upon the ground of newly discovered evidence according to the same standard as that applied under Rule 59. My November 27, 2001 Order of Dismissal in this case incorporated the legal analysis and conclusions set forth in the companion case of Castaldo, et al. v. Jefferson County Sheriff John C. Stone, 192 F.Supp.2d 1124 (D.Colo.2001). The controlling law of duty, causation, and immunity set forth in Castaldo, as applied to this case, remains unchanged. First, I will assume that the Harris journal here is newly discovered and could not have been discovered through the exercise of diligence. That assumption appears unwarranted, however, as to the Brown reports. I next conclude that under Castaldo’s legal matrix, such evidence is cumulative, immaterial, and has no probability of changing the result.

To obtain relief pursuant to Fed. R.Civ.P. 60(b)(3) for fraud, misrepresenta *1200 tion or other misconduct of an adverse party, the movant must establish such conduct by clear and convincing evidence. Additionally, the fraud must have prevented the moving party from fully and fairly being heard. Plaintiffs have failed to meet their Rule 60(b)(3) burden.

Finally, plaintiffs have failed to show such extraordinary circumstances as would justify relief pursuant to Fed.R.Civ.P. 60(b)(6).

IT IS THEREFORE ORDERED that the motion is DENIED.

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Bluebook (online)

191 F. Supp. 2d 1198, 2002 U.S. Dist. LEXIS 11002, 2002 WL 424443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirklin-v-stone-cod-2002.

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