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March 2, 1994

IRENE WELDON, Plaintiff,

The opinion of the court was delivered by: HOWARD G. MUNSON



 In Weldon v. United States, 744 F. Supp. 408 (N.D.N.Y. 1990) ("Weldon I"), this court granted defendant United States' motion for summary judgment, finding that Plaintiff failed to raise any material issues of fact to warrant a trial on her claim for damages under the Federal Tort Claims Act and the Swine Flu Act and that the United States was entitled to judgment on those claims as a matter of law. This independent equity action seeks vacatur of the court's judgement in favor of the United States in Weldon I on the ground that the defendant United States committed fraud upon the court both at the trial and appellate levels. Presently before the court are defendant's motions for dismissal, or in the alternative, for summary judgment on the grounds that (1) this court lacks subject matter jurisdiction over the controversy at bar, (2) the complaint fails to state a claim of fraud or fraud upon the court, and (3) summary judgment is appropriate because there is no genuine issue of material fact in dispute. Plaintiff cross-moves for summary judgment, for suppression of several affidavits offered by defendant, and to strike defendant's answer. Oral argument was heard on November 13, 1992, after which the court reserved decision. This Memorandum-Decision and Order constitutes the court's final decision regarding these motions.


 On October 20, 1981, plaintiff filed a complaint under the National Swine Flu Immunization Program of 1976 and the Federal Tort Claims Act ("FTCA") alleging that she developed several neurologic disorders, including Guillain-Barre Syndrome ("GBS"), as a result of a swine flu vaccination she received on November 16, 1976 at the PennCan Mall in North Syracuse, New York. The action was transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the District of Columbia for coordinated pretrial proceedings. Subsequently, the action was returned to this court for further proceedings, and on April 7, 1989, defendant filed a motion for summary judgment.

 Defendant's motion for summary judgment was based upon four grounds. First, defendant contended that the neurologic illness plaintiff suffered in 1979 was a central nervous system disorder and not GBS, which is a peripheral nervous system disorder. Second, defendant contended that the swine flu vaccine did not cause plaintiff's illness, regardless of diagnosis. Third, defendant contended that plaintiff could not establish a theory of liability under New York law. Fourth, defendant asserted that plaintiff's failure to respond to requests for admissions that were dispositive of each of the previous issues mandated summary judgment regardless of the evidence produced by plaintiff.

 On September 13, 1990, this court granted the government's motion for summary judgment based on two grounds. First, the court found that plaintiff did not suffer from GBS. Second, the court found that the swine flu vaccination plaintiff received in 1976 did not cause the neurologic illness she suffered in February 1979. See Weldon I, 744 F. Supp. at 410-13.

 On September 27, 1990, plaintiff filed motions to reopen the judgment pursuant to Rules 59 and 60(b) of the Federal Rules of Civil Procedure, and for further discovery pursuant to Rule 56(f). Plaintiff's motions were denied by the court on January 15, 1991. On February 8, 1991, plaintiff filed a notice of appeal with the United States Court of Appeals for the Second Circuit, challenging the appropriateness of summary judgment on the issues of diagnosis and causation. The Second Circuit affirmed the court's judgment on November 26, 1991. Plaintiff's subsequent petition for rehearing was denied. Finally, on June 15, 1992, the Supreme Court denied plaintiff's petition for a writ of certiorari. Nine days later, on July 24, 1992, plaintiff returned to this court to file her present complaint.

 The basis for the instant action is plaintiff's claim that defendant repeatedly and fraudulently misrepresented the record concerning the viewpoints of several potential witnesses in Weldon I. The misrepresentations allegedly spanned the time period from oral argument and memoranda in support of the motion for summary judgment in Weldon I to defendant's briefs submitted to the Second Circuit on appeal. Additionally, plaintiff contends that defendant's attorney improperly interviewed plaintiff's treating physicians during the pendency of Weldon I. Plaintiff charges that defendant's conduct constituted (1) fraud, misrepresentation, and other misconduct within the meaning of Fed. R. Civ. p. 60(b)(3), and (2) "fraud upon the court" within the meaning of Fed. R. Civ. P. 60(b). The complaint seeks equitable relief in the form of an order vacating the September 13, 1990 summary judgment, scheduling the original case for trial, and awarding costs, disbursements, and attorney's fees in this equity action.


 A. Jurisdiction

 As an initial matter, the court must determine whether it has jurisdiction to hear this dispute. Plaintiff bears the burden of persuasion on the existence of federal jurisdiction. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 612 n. 28, 60 L. Ed. 2d 508, 99 S. Ct. 1905 (1979).

 Federal Rule of Civil Procedure 60(b) allows relief from a final judgment in a civil case for any of six enumerated reasons, including fraud, misrepresentation, or other misconduct of an adverse party, Fed. R. Civ. P. 60(b)(3), as well as "any other reason justifying relief from the operation of the judgment". Fed. R. Civ. P. 60(b)(6). The Rule contemplates two distinct procedures for obtaining relief from a final judgment: post-judgment motion, or independent action. If the former procedure is pursued, a motion alleging fraud under Rule 60(b)(3) must be filed within one year after judgment was entered, and a motion based on "any other reason" must be filed "within a "reasonable time." If the latter procedure is pursued, there is no specified time limitation within which an aggrieved party must institute an independent action for relief from judgment based on a fraud upon the court. Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985). A party proceeding by post-judgment motion need not establish the jurisdiction of the court, because the court already has jurisdiction based on the underlying suit. Where the party invokes that portion of 60(b) which permits an independent action, however, he must support the action with independent jurisdictional grounds. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir. 1990); see also Woodrum, 750 F.2d 876, 882-83 (11th Cir. 1985) (by its terms Rule 60(b) only preserves otherwise existing jurisdiction; it does not create jurisdiction), cert. denied, 474 U.S. 821, 88 L. Ed. 2d 58, 106 S. Ct. 71 (1985).

 In this case, plaintiff opted to file an independent action charging a fraud upon the court, and thus she must establish an independent jurisdictional basis. In its motion to dismiss plaintiff's complaint, the United States strenuously argues that the principle of sovereign immunity precludes the court's jurisdiction over this action. Plaintiff responds by citing "the historic power of equity to set aside fraudulently begotten judgments," Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245, 88 L. Ed. 1250, 64 S. Ct. 997 (1944), and arguing that jurisdiction in the case at bar is ancillary to that in Weldon I. Because this circuit has not squarely addressed the issue of whether sovereign immunity precludes an independent action against the United States for fraud upon the court, the court first looks to the presently competing principles behind the doctrine of sovereign immunity and the tradition of the court's equity powers.

 The concept of sovereign immunity is of ancient vintage. While legal scholars debate the origin of the doctrine, *fn1" the Supreme Court has declared that "it is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction" in federal district court. United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983). The doctrine of sovereign immunity thus precludes suit against the federal government unless the United States expressly waives its immunity. See generally United States v. Nordic Village, Inc., U.S. , 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992). A waiver of sovereign immunity must be clear, express, and unambiguous; it cannot be implied from vague language. United States v. Sherwood, 312 U.S. 584, 486, 85 L. Ed. 1058, 61 S. Ct. 767 (1941) ("consent, since it is a relinquishment of sovereign immunity, must be strictly interpreted"); Nordic Village, 112 S. Ct. at 1015 ("consent to be sued must be construed strictly in favor of the sovereign, and not enlarged . . . beyond what the language requires" (quotations and citations omitted)).

 According to the government, the relief requested by plaintiff can not be granted by the court because the United States has not waived its sovereign immunity from tort claims seeking equitable relief. Rather, it argues, waiver of sovereign immunity under the Federal Tort Claims Act is limited to tort suits seeking money damages. See 28 U.S.C. § 1346(b) ("district courts . . . shall have jurisdiction of civil actions on claims against the United States, for money damages"). Therefore, defendant argues, plaintiff's claim must fail in light of the inviolable defense of sovereign immunity.

 Notwithstanding the protestation of the United States, the court concludes based on Second Circuit precedent that it has ancillary jurisdiction over the present dispute.

 In Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 70 (2d Cir. 1990), the Second Circuit held that

when the basis for federal jurisdiction of the original suit no longer exists, either because there is no longer diversity of citizenship or because the claims in the new suit do not arise under federal law, the district court that entered the original judgment has inherent "ancillary" equitable jurisdiction to entertain the suit for relief from the judgment. 922 F.2d at 70.

 The court cited two cases to support this principle. In Pacific R.R. of Missouri v. Missouri Pac. Ry., 111 U.S. 505, 521-22, 28 L. Ed. 498, 4 S. Ct. 583 (1884), the Supreme Court found that where the diversity upon which jurisdiction of the original suit rested was destroyed before initiation of the second suit, there was "no doubt" that the lower court that entered the earlier decree had jurisdiction to hear a suit seeking vacatur of the decree based on fraud. Jurisdiction existed, the Court held, because "the bill [of review], though an original bill in the chancery sense of the word, is a continuation of the former suit, on the question of the jurisdiction of the . . . Court." *fn2" Pacific R.R. of Missouri, 111 U.S. at 522. In Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798, 800 n.1 (1960), the Second Circuit expanded the holding of Pacific R.R. of Missouri, holding that where the independent action to set aside a judgment on the basis of fraud is brought before the court that rendered the original judgment, ancillary jurisdiction over the independent action exists despite the absence of the diversity of citizenship or federal question that formed the basis of the court's jurisdiction over the original action.

 In adopting the reasoning of Pacific R.R. of Missouri and Martina Theatre, Cresswell serves to illuminate the principles which guide the court in its analysis of the delicate balance between the court's equitable powers and the traditional limitation of sovereign immunity. Although Cresswell did not directly address the issue at bar, it is indicative of a view that independent actions in equity are derivative of the initial litigation. For example, it broadly notes that "ancillary jurisdiction is sufficiently flexible that the action may be maintained against a person who was not a party to the original action," including persons who were attorneys in that action. ...

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