DeBose v. USF Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ANGELA W. DEBOSE,

Plaintiff,

v. Case No: 8:15-cv-2787-T-33AEP

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES, et al.,

Defendants.

____________________________/

ORDER

This cause comes before the Court pursuant to pro se

Plaintiff Angela DeBose’s Motion for Independent Action for

Relief from Judgment to Remedy Fraud on the Court (Doc. #

588), filed on May 12, 2020, DeBose’s Motion for an

Evidentiary Hearing (Doc. # 600), filed on June 6, 2020, and

DeBose’s Motion for Extension of Time to File a Second Amended

Appeal (Doc. # 603), filed on June 9, 2020. Defendant

University of South Florida Board of Trustees (USFBOT) has

responded to all three motions. (Doc. # 599, 604, 605). For

the reasons detailed herein, the Motions are denied.

I. Background

This case has a long and complex history, one that the

parties are familiar with. For now, it is sufficient to say

that, following her termination from USF, DeBose brought this

lawsuit against both USFBOT and Ellucian Company, L.P., a

software developer whose products are used for academic and

administrative recordkeeping. (Doc. # 45). This Court granted

summary judgment to Defendants on several counts, including

all counts against Ellucian. (Doc. # 210). After a jury found

for DeBose on the remaining counts, the Court granted judgment

as a matter of law to USFBOT and denied DeBose’s post-trial

motions. (Doc. ## 471, 548, 549). DeBose appealed to the

Eleventh Circuit and, on April 28, 2020, the Eleventh Circuit

affirmed in full. (Doc. # 587).

Shortly after the Eleventh Circuit handed down its

decision, DeBose filed the instant Motion for Independent

Action, which argued that, due to various alleged frauds that

USFBOT and related entities had perpetrated on the Court, the

Court should allow DeBose to pursue an independent action for

relief from judgment and/or should set aside the judgment,

pursuant to Federal Rule of Civil Procedure 60(d). Although

DeBose raises multiple allegations of fraud in her Motion,

the thrust of her argument is that USFBOT engaged in wrongful

and nefarious conduct in order to impede discovery and the

administration of justice in this case, including, among

other things, wrongly destroying her personnel file,

including various employment contracts, presenting false

testimony to the Court, and convincing the Court to wrongfully

exclude certain witnesses and evidence proffered by DeBose.

(Doc. # 588).

In its response, USFBOT outlines in great detail the

procedural history of this case, including the numerous

motions and other filings submitted by DeBose in which she

alleged that USFBOT had destroyed or withheld evidence,

persuaded witnesses to lie under oath and otherwise suborned

perjury. (Doc. # 599 at 3-9). As the response explains, and

as the record bears out, this Court repeatedly rejected

DeBose’s arguments because the allegations were never

accompanied by competent evidence or were “thinly veiled”

attempts to attack substantive orders. See, e.g., (Doc. # 548

at 9) (“The Court and the assigned Magistrate Judge have

exhaustively addressed on multiple occasions the issues and

arguments raised by the instant Motion for Sanctions. Since

the outset of this litigation, DeBose has failed to

substantiate her allegations against the Board related to her

‘employment contracts,’ whether it be in the form of their

concealment, destructions, or breach.”); (Doc. # 144 at 7-8)

(“In essence, Plaintiff, based upon unsupported hearsay

statements and conjecture, requests that the Court conclude

that numerous individuals . . . all agreed to lie under oath

and agreed to execute elaborate steps to shred information

directly relevant to Plaintiff’s claims in this case. The

Court is unpersuaded by Plaintiff’s renewed Motion. Rather,

yet again, Plaintiff has simply failed to provide any

competent evidence to demonstrate that Defendant acted with

bad faith in the shredding of her departmental personnel

file.”).

USFBOT therefore argues that DeBose’s instant Motion for

Independent Action is an improper effort to relitigate issues

already decided by the Court and, in any event, does not meet

the “heightened Rule 60(d) fraud standard.” (Doc. # 599 at

13-17).

DeBose also seeks an evidentiary hearing pertaining to

her request for an independent action and has requested that

the Court enlarge her time to file an amended notice of appeal

in appellate case number 18-13545. (Doc. ## 600, 603). USFBOT

has responded in opposition to these Motions as well (Doc. ##

604, 605), and the Motions are all ripe for review.

II. Legal Standard

Federal Rule of Civil Procedure 60(d) authorizes a Court

to (1) “entertain an independent action to relieve a party

from a judgment, order, or proceeding,” or (2) “set aside a

judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(1),

(3).

Because an independent action under Rule 60(d) is an

equitable one, the proponent must show a meritorious claim or

defense and that the judgment should not, in equity and good

conscious, be enforced. Travelers Indem. Co. v. Gore, 761

F.2d 1549, 1151 (11th Cir. 1985) (citation omitted); Jeffus

v. Att’y Gen. for State of Fla., No. 6:10-cv-1174-Orl-28,

2011 WL 2669147, at *2 (M.D. Fla. July 6, 2011). “The Supreme

Court has made clear that such independent actions must, if

Rule 60(b) is to be interpreted as a coherent whole, be

reserved for those cases of injustices which, in certain

instances, are deemed sufficiently gross to demand a

departure from rigid adherence to the doctrine of res

judicata.” Aldana v. Del Monte Fresh Produce N.A., Inc., 741

F.3d 1349, 1359 (11th Cir. 2014) (quoting United States v.

Beggerly, 524 U.S. 38, 46 (1998)) (internal quotations and

citation omitted). Indeed, “relief under Rule 60(d) is

reserved for the rare and exceptional case where a failure to

act would result in a miscarriage of justice.” Jeffus, 2011

WL 2669147, at *2; see also Fox v. Brewer, 620 F.2d 177, 180

(8th Cir. 1980) (noting that Rule 60(d) “provides for

extraordinary relief on a showing of exceptional

circumstances”).

As to Rule 60(d)(3), courts have similarly found that

“only the most egregious misconduct, such as bribery of a

judge or members of a jury, or the fabrication of evidence by

a party in which an attorney is implicated, will constitute

a fraud on the court.” Galatolo v. United States, 394 F. App’x

670, 672 (11th Cir. 2010); see also Gupta v. Walt Disney World

Co., 519 F. App’x 631, 632 (11th Cir. 2013) (movant must show

an “unconscionable plan or scheme” to improperly influence

the court’s decision).

III. Analysis

There are no extraordinary circumstances here that

warrant relief under Rule 60(d). DeBose accuses USFBOT of

suborning perjury and fabricating evidence. But “[p]erjury

and fabricated evidence do not constitute fraud upon the

court, because they ‘are evils that can and should be exposed

at trial,’ and ‘[f]raud on the court is therefore limited to

the more egregious forms of subversion of the legal

process, . . . those we cannot necessarily expect to be

exposed be the normal adversary process.’” Council v. Am.

Fed’n of Governmental Emps., 559 F. App’x 870, 873 (11th Cir.

2014) (quoting Travelers Indemnity Co., 761 F.2d at 1552). In

a similar vein, the simple nondisclosure of facts or

withholding of discovery does not establish fraud on the

court. See BDT Invs., Inc. v. Lisa, S.A., No. 18-22005-CIV,

2019 WL 7344829, at *9 (S.D. Fla. Oct. 25, 2019) (“The mere

nondisclosure of allegedly pertinent facts also does not

ordinarily rise to the level of fraud on the court.”); Bryant

v. Troutman, No. 3:05-cv-162-J-20MCR, 2006 WL 1640484, at *1

(M.D. Fla. June 8, 2006) (holding that party’s averments that

their adversary lied under oath, gave misleading answers,

thwarted their discovery efforts, and concealed certain

pertinent evidence did not rise to the level of fraud on the

court).

But more importantly, DeBose’s allegations have already

been considered, weighed, and rejected by this Court on

multiple occasions. As explained above, the Court

consistently found that DeBose’s claims were unsupported by

competent evidence. In the instant Motion, DeBose claims that

she has “new evidence.” The Court’s review of the deposition

transcripts and affidavits attached to the Motion, however,

reveals that these documents either were or could have been

previously submitted to the Court, or contain information

that is duplicative of other accusations already lodged by

DeBose earlier in the litigation.

Under such circumstances, DeBose cannot demonstrate a

miscarriage of justice, as required for relief under Rule

60(d). See Council, 559 F. App’x at 873 (rejecting a Rule

60(d)(3) claim where the claimant made conclusory averments,

unsupported by probative facts, that the other party

committed perjury and fabricated evidence).

Instead, the Court agrees with USFBOT that the instant

request for an independent action is an attempt to re-litigate

issues that have been, or could have been, raised by DeBose

while the litigation was active. See Travelers Indem. Co.,

761 F.2d at 1552 (explaining that a plaintiff “cannot use an

independent action as a vehicle for the relitigation of

issues”); Maye v. United States, No. 8:10–cv–2327–T–30TBM,

2010 WL 4279405, at *2 (M.D. Fla. Oct. 25, 2010) (“A party

cannot relitigate ‘in the independent equitable action issues

that were open to litigation in the former action where he

had a fair opportunity to make his claim or defense in that

action.’”). For these reasons, DeBose’s request for an

independent action must be denied.

Furthermore, DeBose has requested an evidentiary hearing

on her motion for an independent action. (Doc. # 600). For

the reasons described herein, her Motion is meritless and, as

such, the Court will not hold an evidentiary hearing. See

Cano v. Baker, 435 F.3d 1337, 1342-43 (11th Cir. 2006) (the

district court did not abuse its discretion by denying request

for an evidentiary hearing where holding such a hearing would

not aid the court’s analysis on a question of law).

Finally, DeBose seeks an extension of time in which to

file an amended notice of appeal in appellate case number 18-

13545. (Doc. # 603). By way of background, in 2018, DeBose

appealed this Court’s July 20, 2018, order denying her motion

for sanctions and its subsequent order denying her motion for

reconsideration of its July 20 order. (Doc. ## 293, 296, 316,

527). As the Eleventh Circuit correctly pointed out, neither

of these orders were final, appealable orders at the time

DeBose filed her notice of appeal. (Id.). Accordingly, the

Eleventh Circuit dismissed the appeal for lack of

jurisdiction, although it noted that nothing prevented DeBose

from appealing the final judgment. (Id.). The final judgment

in favor of USFBOT was entered on February 14, 2019. (Doc. #

549).

Typically, under the Federal Rules of Appellate

Procedure, notices of appeal must be filed within 30 days

from entry of the judgment or order appealed from. Fed. R.

App. P. 4. A district court can extend that time if a party

files a motion within 30 days after the deadline expires and

it shows “excusable neglect or good cause.” Fed. R. Civ. P.

4(a)(5). In addition, the time to file an appeal may be

reopened for 14 days if: (1) the moving party did not receive

notice of the entry of judgment or order appealed within 21

days after entry; (2) the motion is filed within 180 days

after the judgment or order is entered or within 14 days of

when the moving party received notice of the entry; and (3)

no party would be prejudiced. Fed. R. App. P. 4(a)(6). Even

if all three prongs are met, however, a district court retains

the discretion to deny a motion to reopen. Watkins v.

Plantation Police Dep’t, 733 F. App’x 991, 994 (11th Cir.

2018).

DeBose did not file her motion within 30 days of entry

of the judgment here, nor 30 days after that time expired.

Moreover, DeBose had the opportunity to appeal these orders

within her plenary appeal, but she did not do so. Nor can

DeBose plausibly allege that she did not receive notice of

the orders she seeks to appeal or the final judgment. What’s

more, Rule 4(a)(6) does not provide DeBose relief because the

final judgment against USFBOT was entered more than 180 days

ago. In short, the Federal Rules of Appellate Procedure do

not allow this Court to reopen or extend the time for DeBose

to file the requested amended notice of appeal.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Plaintiff Angela DeBose’s Motion for Independent Action

for Relief from Judgment to Remedy Fraud on the Court

(Doc. # 588) is DENIED.

(2) DeBose’s Motion for an Evidentiary Hearing (Doc. # 600)

is DENIED.

(3) DuBose’s Motion for Extension of Time to File a Second

Amended Appeal (Doc. # 603) is DENIED.

DONE and ORDERED in Chambers, in Tampa, Florida, this

23rd day of June, 2020.

fami 9n. Mumenby Cree

VIRGINIA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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