Generally speaking, 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 . See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. Universal Oil Products, 169 F.2d 514 (3d Cir. 1948); 7 J.W. Moore, Federal Practice, ¶ 60.33 at 510-11.
Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2 (Nev. 1981)
Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2 (Nev. 1981) (“”[I]n order to set aside a judgment or order because of fraud upon the court under Rule 60(b) . . . it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” England v. Doyle, supra, 281 F.2d at 309. See also United States v. Standard Oil Co. of California, 73 F.R.D. 612, 615 (N.D.Cal. 1977).”)
Fraud directed at the “judicial machinery” can mean conduct that fraudulently coerces or influences the court itself or a member of the court, such that the impartial nature of the court has been compromised.Bulloch v.United States,721F.2d 713,718 (10th Cir.1983).
Lepp v. Yuba Cnty., No. 2:17-cv-1317-KJM-EFB PS, at *4 (E.D. Cal. Mar. 11, 2019) (“”Fraud on the court” is “fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner.” Alexander v. Robertson, 882 F.2d 421, 424 (9th Cir. 1989).”)
Estate of Adams ex rel. Estate v. Fallini, 386 P.3d 621, 625-26 (Nev. 2016) (“However, counsel violates his duty of candor to the court when counsel: (1) proffers a material fact that he knew or should have known to be false, see generally Sierra Glass & Mirror v . Viking Indus., Inc. , 107 Nev. 119, 125–26, 808 P.2d 512, 516 (1991) (providing that counsel committed fraud upon the court “in violation of SCR 172(1)(a) and (d)” when he proffered evidence and omitted pertinent portions of a document to “buttress” his client’s argument, and that he “knew or should have known” that the omitted portion was harmful to his client’s position); cf.Seleme v. JP Morgan Chase Bank , 982 N.E.2d 299, 310–11 (Ind. Ct. App. 2012) (providing that under FRCP 60(b)(3), a party alleging fraud or misrepresentation must demonstrate that “the opposing party knew or should have known from the available information that the representation made was false, and … the misrepresentation was made with respect to a material fact which would change the trial court’s judgment” (internal quotation marks omitted)); and (2) relies upon the admitted false fact to achieve a favorable ruling, seeKupferman v. Consol. Research & Mfg. Corp. , 459 F.2d 1072, 1078–79 (2d Cir. 1972) (holding that counsel pursuing case with known complete defense could be fraudulent, where defense was unknown to the court, or, apparently, unknown to the defending parties); see also Conlon v. United States , 474 F.3d 616, 622 (9th Cir. 2007) ”)
Ehrenberg v. Roussos (In re Roussos), 541 B.R. 721, 729 (Bankr. C.D. Cal. 2015) (“Most fraud on the court cases involve a scheme by one party to hide a key fact from the court and the opposing party. For example, in Levandera corporate officer testified in a deposition that the corporation had not sold its assets, and a bankruptcy court subsequently entered a judgment against only the corporation. Levander,180 F.3d at 1116–17. It turned out that the corporation had in fact transferred all of its assets to a related partnership. Id. We held that the false testimony constituted fraud on the court, and the bankruptcy court was allowed to amend its order to include the partnership as an additional party to the judgment. Id.at 1122–23.”)
Could Judge Peterson fairly adjudicate this last order given that claims of fraud on the court attorney misconduct triggered the unwarranted restrictive order?
“”A judge is presumed to be impartial, and the party asserting the challenge carries the burden of establishing sufficient factual grounds warranting disqualification.” Rippo v. State, 113 Nev. 1239, 1248, 946 P.2d 1017, 1023 (1997). Under Nevada law, a judge must be disqualified whenever her “impartiality might reasonably be questioned,” NCJC Rule 2.11(A), which presents an objective inquiry: “whether a reasonable person, knowing all the facts, would harbor reasonable doubts about [the judge’s] impartiality,” Ybarra v. State, 127 Nev. 47, 51, 247 P.3d 269, 272 (2011) (quoting PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 438, 894 P.2d 337, 341 (1995)). Additionally, the Fourteenth Amendment’s Due Process Clause requires disqualification “when, objectively speaking, ‘the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.'” Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).”
Would a reasonable person think this conduct was impartial?
- not establishing that the interpleader action was filed in good faith
- refuse to resolve the interpleader action presented in 2021 by holding an evidentiary hearing
- dismissed unanswered claims of conversion
- not dismissing Nationstar and Wells Fargo when they failed to file a mandatory counter-claim for the proceeds and failed to file a timely answer to cross-claims
- refusing to allow their default to be taken
- 6. filing an order to show cause to get rid of the third-party complaint against attorneys
- holding the hearing anyway even after the voluntary dismissal order was signed
- who had no standing to hold an ex parte hearing with the attorneys for Tobin’s opponents
Would a reasonable person think she kept an open mind to the evidence?
[S]o long as a judge remains open-minded enough to refrain from finally deciding a case until all of the evidence has been presented, remarks made by the judge during the course of the proceedings will not be considered as indicative of disqualifying bias or prejudice.”
Wharff v. State, No. 72185 (Nev. App. Dec. 19, 2018)
“Disqualification is required when “a reasonable person, knowing all the facts, would harbor reasonable doubts about [the judge’s] impartiality.” Id.; see also NRS 1.230; Williams v. Pennsylvania, 579 U.S. ___, 136 S. Ct. 1899, 1905 (2016) (“The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias.” (internal quotation marks omitted)).”
Brofman v. The Eighth Judicial District court of the State, No. 85299-COA (Nev. App. Oct. 7, 2022)
“Generally, a judge’s remarks “made in the context of a court proceeding are not considered indicative of improper bias or prejudice unless they show that the judge has closed his or her mind to the presentation of all the evidence.””