Jerry and Patricia A. Dixon, et al - Page 195




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          In sum, District Courts are vested with discretion to relieve a             
          party from a final judgment where the adverse party has committed           
          a fraud, misrepresentation, or other misconduct.  See Atchison,             
          Topeka & Santa Fe R.R. Co. v. Barrett, 246 F.2d 846, 849 (9th               
          Cir. 1957).                                                                 
          Although the decisions in these cases are not final, the                    
          parties seem to agree that these proceedings may be analogized to           
          proceedings under rule 60(b)(3) of the Federal Rules of Civil               
          Procedure.  We will assume for present purposes that the analogy            
          is valid in light of the apparent agreement of the parties.                 
               A judgment may be set aside under rule 60(b)(3) of the                 
          Federal Rules of Civil Procedure where fraud, misrepresentation,            
          or misconduct prevents a party from fully and fairly presenting             
          his or her case at trial.  See In re M/V Peacock, 809 F.2d 1403,            
          1405 (9th Cir. 1987); Simons v. Gorsuch, 715 F.2d 1248, 1253 (7th           
          Cir. 1983); Bunch v. United States, 680 F.2d at 1283; Atchison,             
          Topeka & Santa Fe Ry. Co. v. Barrett, supra at 849.  Relief does            
          not depend on whether the judgment is incorrect, only on whether            
          the judgment was obtained unfairly.  See Lonsdorf v. Seefeldt, 47           
          F.3d 893, 897 (7th Cir. 1995); Anderson v. Cryovac, Inc., 862               
          F.2d at 924 n.10.                                                           
          Some courts have held that the willful presentation of                      
          perjured testimony is grounds for granting the innocent party a             
          new trial pursuant to rule 60(b)(3) of the Federal Rules of Civil           
          Procedure.  See Diaz v. Methodist Hosp., 46 F.3d 492, 497 (5th              
          Cir. 1995).  However, it has been said that                                 

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