United States District Court, M.D. Alabama, Southern Division
KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE.
the court are the following motions: Marla Y. Newman's
pro se motions to vacate the judgment against
Malcolm Rance Newman (Doc. # 112; Doc. # 114); Defendant LFP,
Inc.'s motion to revive the judgment (Doc. # 115); and
Barbara Holland's motion for relief from judgment (Doc. #
117). On December 13, 2017, the court held oral argument on
the motions. Present at oral argument were counsel for
Defendant LFP, counsel for Barbara Holland, and Barbara
Holland. Marla Y. Newman and Malcolm Rance Newman were not present.
Rance Newman filed this case on behalf of Barbara Holland
d/b/a Choice Video. Based on the clear, uncontradicted
evidence and an independent review of the record, the court
finds that Malcolm Rance Newman was never authorized to
represent Barbara Holland or any entity known as Choice
Video. At the time the lawsuit was filed, there was no
business entity known as “Barbara Holland d/b/a Choice
Video.” Malcolm Rance Newman never met or spoke
with Barbara Holland. Barbara Holland had no or limited
dealings with the Defendants, and she had no motive or desire
to sue any of them. Until Barbara Holland received Defendant
LFP, Inc.'s motion to revive the judgment in May 2017,
she was unaware of the existence of this case, the filing of
the frivolous appeal, and the judgment awarding
attorney's fees and costs for the pursuit of the
Holland bore no personal responsibility for the frivolous
appeal. The judgment against Barbara Holland is the product
of Malcom Rance Newman's fraud on the
court. Moreover, because Barbara Holland was
never a party to this case and did not appear in the case
prior to entry of the judgment, the judgment is void as to
her. Therefore, Barbara Holland is entitled to relief from
the judgment awarding attorneys' fees and costs for that
appeal. See Fed. R. Civ. P. 60(b)(6)
(“On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding” on grounds that the judgment is
void or for “any . . . reason that justifies
relief” not listed in Rule 60(b)(1)-(5)); Fed.R.Civ.P.
60(d)(3) (providing that a court may “set aside a
judgment for fraud on the court”); Chambers v.
NASCO, Inc., 501 U.S. 32, 44 (1991) (noting the
court's “inherent power . . . to vacate its own
judgment upon proof that a fraud has been perpetrated upon
the court”). Cf. Ala. Code § 34-3-22
(“If it is alleged by a party for whom an attorney
appears that he or she does so without authority, the court
may at any stage of the proceedings, upon proof of the
allegation, relieve the party for whom the attorney has
assumed to appear from the consequences of his or her
on the clear, undisputed evidence, the court finds that
Malcolm Rance Newman acted in bad faith and perpetrated a
fraud on the court when he filed this case in the name of a
person who was not his client. He also violated Alabama state
law, the Alabama Rules of Professional conduct, and the local
rules of this court.Therefore, the court finds it appropriate
to sanction Malcolm Rance Newman by requiring him to pay
Defendants' reasonable attorney's fees and costs
incurred in relation to this case, and by requiring him to
pay Barbara Holland's reasonable attorney's fees and
costs incurred in conjunction with her motion for relief from
judgment. This sanction is designed as a reasonable and
proportional remedy for the damage caused by Malcolm Rance
Newman's bad faith conduct. Chambers, 501 U.S.
32, 43, 45-46 (1991) (holding that “a federal court has
the [inherent] power to control admission to its bar and to
discipline attorneys who appear before it, ” and that,
“if a court finds that fraud has been practiced upon
it, or that the very temple of justice has been defiled, it
may assess attorney's fees against the responsible
party” or attorney (citations and internal quotation
lawyer is entitled to notice and an opportunity to be heard
before sanctions are imposed. Chambers, 501 U.S. at
50 (1991) (“[A] court . . . must comply with the
mandates of due process, both in determining that the
requisite bad faith exists and in assessing fees.”).
However, in this case, a show cause order would be futile.
Malcolm Rance Newman's whereabouts are unknown. The
court's previous service attempts were unsuccessful.
Malcolm Rance Newman cannot be found at any address on file
with this court or with the Alabama State Bar Association.
The court's independent effort to locate his correct
address through public records has been unfruitful. Barbara
Holland and Defendant LFP, Inc., have also attempted,
unsuccessfully, to locate him.
the court will allow Malcolm Rance Newman an opportunity to
seek relief from the imposition of sanctions under the
following conditions: he may appear to oppose the imposition
of sanctions no later than 14 days after being served a
motion for attorney's fees. If Defendants or Barbara
Holland are unable, with reasonable diligence, to timely
serve Malcolm Rance Newman with their motions for
attorney's fees, or if Malcolm Rance Newman does not file
a timely response to a motion for attorney's fees, then
he will be deemed to have waived his right to contest the
imposition and amount of sanctions.
and for the reasons stated at oral argument, it is ORDERED as
Marla Y. Newman's motions to vacate the judgment against
Malcolm Rance Newman (Doc. # 112 and Doc. # 114) are DENIED.
Defendant LFP, Inc.'s motion to revive the judgment (Doc.
# 115) is DENIED IN PART as to the judgment against Barbara
Holland. As to the judgment against Malcolm Rance Newman, the
court will reserve ruling on the motion until January 5,
2018, to allow Defendant LFP, Inc., an opportunity to perfect
service in accordance with the applicable rules of procedure.
On or before January 5, 2018, Defendant LFP,
Inc., shall file either (1) proof of proper service on
Malcolm Rance Newman of the motion to revive the judgment
(Doc. # 115), or (2) a notice briefly describing its
unsuccessful service attempts and stating whether it wishes
to proceed with the motion to revive judgment as to Malcolm
On or before January 5, 2018, Barbara
Holland or any Defendant may file a well-supported motion for
all attorneys' fees and costs incurred as a result of
this case, except for the costs and attorneys' fees
incurred in litigating appeals. Motions for attorney's
fees should be supported with evidentiary submissions
establishing the reasonableness of the award
requested. The movants shall file written notice
with the court if they are unable, with reasonable effort, to
serve Malcolm R. Newman with their motions.
Malcolm Rance Newman may respond to any motion for
attorney's fees not later than 14 days after
being served with that motion.
On or before December 22, 2017, Barbara
Holland shall (1) file and serve a proposed order granting
her motion for relief from judgment; and (2) submit a copy of
the proposed order, in Microsoft Word or