GORDON KEENE VELLA. - On Point News

ARGUMENT
The Defendant has requested relief from judgment under Rule 60(b)(3) or, in the
alternative, under Rule 60(b)(6).
To prevail on a Rule 60(b)(3) motion, the moving party must show with clear and
convincing evidence that the opposing party engaged in fraud, misrepresentation or misconduct
that prevented the movant from fully and fairly presenting its case. 4
Harley v. Zoeschi, 413 F.3d
866 (8th Cir. 2005); Sellers v. Mineta, 350 F.3d 706 (8th Cir. 2003). See also In re Vioxx Prods.,
489 F. Supp. 2d 587, 589 (E.D. La. 2007). Such relief is appropriate where material information
has been withheld, or incorrect or perjured information has been intentionally supplied. Matter
of Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir. 1981).
Significantly, relief under subsection (b)(3) does not require the Court to find that “the
information withheld be such that it can alter the outcome of the case.” Hesling v. CVX Transp.
Inc., 396 F.3d 632, 641 (5th Cir. 2005). That onerous standard is reserved for instances
involving allegations of misconduct “directed to the court itself, such as bribery of a judge or
jury or fabrication of evidence by counsel.” Greiner v. City of Champlin, 152 F.3d 787, 789 (8th
Cir. 1998). Rather, Rule 60(b)(3) is aimed at judgments that are unfairly obtained, and not
necessarily at those that are factually incorrect. In re Vioxx, 489 F. Supp. 2d at 589 (ordering
4
In this Motion for relief, Vella is asserting that Dr. Daniel Brown made numerous and
varied misrepresentations before this Court and before the jury. In reviewing the Rule 60(b)(3)
Motion, the Court must find that misrepresentations where made; however, misrepresentation is
rarely susceptible of direct proof. Under Nebraska law, proof of misrepresentation and the
underlying intention to deceive can be established by circumstantial evidence and legitimate
inferences arising therefrom, rather than direct evidence. Such inferences may be gathered from
a chain of circumstances depending largely on the common sense knowledge of the motives and
intention of men in like circumstances. Lincoln Ben. Life Co. v. Edwards, 45 F. Supp. 2d 722
(D. Neb. 1999); Matter of Laursen, 214 B.R. 378 (D. Neb. 1997); Erickson v. Nat’l Trans. Safety
Bd., 785 F.2d 285 (8th Cir. 1985); Jensen v. Sohler, 601 F.2d 353 (8th Cir. 1975); Rowe Intern.
Inc. v. J-B Enter., Inc., 647 F.2d 830 (8th Cir. 1981).
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