How to oppose a motion to vacate judgment under Rule 60(b)(2) in United States District Court

How to oppose a motion to vacate judgment under Rule 60(b)(2) in United States District Court on the grounds of newly discovered evidence is the topic of this blog post.  The opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Parties served with a motion to vacate under Rule 60(b)(2) (“Rule 60”) should review the motion and all supporting documents very closely to determine what grounds exist for an opposition. 

Common grounds for opposition to a motion to vacate under Rule 60(b)(2) are:

The motion is untimely in that it is brought more than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

The newly discovered evidence was known or could have been discovered by the moving party before the trial.

The newly discovered evidence is merely cumulative, impeaching or not material.

The newly discovered evidence would not likely produce a different result if the judgment were set aside.

Numerous decisions of the Circuit Courts of Appeal including the Ninth Circuit have stated that the moving party must show that the newly discovered evidence was discovered after the trial, that they exercised diligence to discover the evidence, the evidence is not just cumulative or impeaching evidence, the evidence is material and that the evidence would most likely produce a different result if the judgment were set aside.

Several recent decisions of the Circuit Courts of Appeal have stated that impeachment evidence that is newly discovered does not support a motion to vacate under Rule 60 in most cases.

And several Circuit Courts of Appeal have also stated that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence

Attorneys or parties who would like to view a portion of an 11 page sample opposition to motion to vacate judgment under Rule 60(b)(2) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample opposition to Rule 60(b)(2) motion to vacate judgment

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.