Free Relief from Judgment - Rule 60 - District Court of Federal Claims - federal

Case 1:06-cv-00124-MCW

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Filed 07/29/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROBERT WILLIAMS and LAVERNE WILLIAMS, Plaintiffs, vs. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 06-124C (Mary Ellen Coster Williams)

MOTION FOR RELIEF FROM ORDER Come now the plaintiffs, Robert and Laverne Williams, by and through their undersigned counsel, and move this Honorable Court, pursuant to Rule 60(b) of the Rules of the Unites States Court of Federal Claims, to grant unto them relief from its Order of Dismissal. In support of this motion, the plaintiffs would show unto the Court as follows: 1. The plaintiffs' former attorney, James W. Myart, Jr., of San Antonio, Texas, filed

the above-styled action on February 22, 2006. 2. On August 22, 2007, Mr. Myart filed a Notice of Voluntary Dismissal on behalf

of Laverne Williams, requesting a dismissal with prejudice. In this Notice Mr. Myart avers to the Court that he "has advised Plaintiffs of the statutory and applicable case law prohibiting this action. Plaintiffs have approved the filing of this pleading." (Docket Entry 25) 3. On August 23, 2007, this Court ordered that the above-styled case be dismissed

with prejudice pursuant to the Notice of Voluntary Dismissal. (Docket Entry 26) 4. On February 4, 2008, the Clerk of the Court entered a Judgment dismissing the

plaintiffs' complaint with prejudice. (Docket Entry 27)

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5.

Mr. Myart was not authorized by the plaintiffs to file a Notice of Voluntary

Dismissal on their behalf. (See attached declarations of Robert Williams, Laverne Williams, and Gwen Boyd) 6. In fact, the plaintiffs had no knowledge of Mr. Myart's intention to file a Notice

of Voluntary Dismissal, or his actual filing of said notice. 7. The plaintiffs have never desired that their case be dismissed, and certainly have

not desired that it be dismissed with prejudice. 8. The plaintiffs were unaware that a Notice of Voluntary Dismissal had been filed

in the above-styled action, and moreover were unaware that the Court had actually dismissed their case with prejudice until June 2008, when they were instructed of this circumstance by their undersigned counsel. 9. Mr. Myart has committed a fraud upon this Court by intentionally misrepresenting

that he had the authority to dismiss the plaintiffs' complaint, and that the plaintiffs were informed of and consented to such a dismissal. 10. As a result of Mr. Myart's fraudulent actions, the plaintiffs have been deprived of

their Constitutional Right to Due Process of Law, and have been denied their ability to seek redress for the harm alleged in their complaint. 11. The plaintiffs assert that the circumstances of this case present a claim of mistake,

inadvertence, surprise, or excusable neglect sufficient to justify relief from the operation of the Court's Order and Judgment of Dismissal, pursuant to Rule 60(b)(1) of the Rules of the United States Court of Federal Claims. 12. Further, the plaintiffs assert that the circumstances of this case present a

compelling case justifying relief from the operation of the Court's Order and Judgment of

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Dismissal, pursuant to the general provision of Rule 60(b)(6) of the Rules of the United States Court of Federal Claims. WHEREFORE, the premises considered, the plaintiffs move this Honorable Court to grant their prayer for relief from the Court's Judgment, and reinstate the above-styled action. Respectfully submitted on this the 29th day of July, 2008. /s/ Howell Roger Riggs_______________ Howell Roger Riggs Attorney for the Plaintiff Dick Riggs Miller LLP 200 Clinton Avenue West, Suite 1050 Huntsville, Alabama 35801 Tel: (256) 564-7317 Fax: (256) 564-7319 [email protected]

Certificate of Service I, Howell Roger Riggs, do hereby certify that as of the 29th day of July, 2008, a true and correct copy of the foregoing Motion has been lawfully served upon counsel for the defendant incident to the electronic filing hereof, and by U.S. Mail, postage pre-paid and properly addressed to the following: Doris Susan Finnerman U.S. Department of Justice, Civil Division 1100 L. Street, N.W. Classification Unit, 8th Floor Washington, DC 20530 Kirk Thomas Manhardt U.S. Department of Justice, Civil Division 1100 L. Street, N.W. Classification Unit, 8th Floor Washington, DC 20530 /s/ Howell Roger Riggs_______________ Howell Roger Riggs

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