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13. Should the court grant the motion?
On appeal from the stockbroker's criminal conviction, the appellate court reversed and vacated the conviction. The stockbroker promptly moved for relief from the final judgment in the civil action. The motion was filed 15 months after entry of the final judgment in the civil action.
A stockbroker was convicted in federal court of criminal fraud in the sale of certain securities. A former client then sued the stockbroker in a federal civil action, alleging fraud in the sale of the same securities for which the stockbroker had been criminally convicted. The client's attorney moved to preclude the stockbroker from relitigating the liability issues that were common to the criminal and civil actions. The court granted the motion and, after a bench trial on damages, entered judgment against the stockbroker for $100,000.
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A is incorrect. FRCP 60(c)(1) requires that motions under FRCP 60(b) be made within a «reasonable time» after the entry of the judgment. Here, the stockbroker promptly moved for relief under FRCP 60(b)(5) after the conviction was vacated, and therefore the motion was made within a «reasonable time.»
B is incorrect. FRCP 60(b) does not require that an appeal be taken before moving to set aside a judgment. Here, the stockbroker would not have been able to appeal the civil judgment because the court in the civil action properly gave preclusive effect to the conviction, and thus there was no error. Further, appealing is no longer possible because the time for appeal has expired.
C is incorrect. A final judgment in an action is entitled to preclusive effect. The fact that the judgment is subject to reversal on appeal does not undermine its preclusive effect unless the appeal reverses or vacates the judgment. See Restatement (Second) of Judgments § 13, cmt. f.