Archive for the ‘extrinsic fraud’ Category

SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG v. Hanne

October 30, 2012

I briefly blogged about the Alberta Court of Appeal decision in  Grundstuecksverwaltungsgesellschaft MBH v. Hanne last year, mostly because I found the style of cause amusingly long.

If you think that’s a tongue-twister, check out the subsequent decision in SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG v. Hanne, 2012 ABQB 624 (CanLII).

Incidentally, Madam Justice Erb of the Alberta Queen’s Bench ultimately rejected the defendant, Dr. Hanne’s impeachment defences of fraud, natural justice and public policy and held that the German judgment was enforceable in Alberta:

“In this summary trial, the Plaintiff SHN Grundstuecksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG, also known as SHN Grundstücksverwaltungsgesellschaft MBH & Co. Seniorenresidenz Hoppegarten-Neuenhagen KG (“SHN”) seeks an Order for recognition and enforcement in Alberta of a judgment issued by the Berlin Regional Court of Germany against the Defendant Dr. Juergen Hanne, also known as Dr. Jürgen Hanne (“Dr. Hanne”).

[98]           I find that this action is appropriate for summary trial; viva voce evidence was not required for the proper hearing of the issues and the test for enforcement of foreign judgments in Alberta has been satisfied and the defences raised by Dr. Hanne are without merit.

Disposition

[99]           Accordingly, there will be an Order recognizing and enforcing the German judgment in Alberta in the total amount of the Canadian equivalent of —1,056,800.25 and interest thereon which includes:

(i) Judgment of the German Regional Court, dated November 11, 2002, for —1,022,583.70 plus interest;

(ii) the order for costs of the German Regional Court, dated November 29, 2002 (and the subsequent order for correction dated January 13, 2003) in the amount of  —21,582.25 and interest thereon; and

(iii) Costs Decision of the German Appeal Court, dated September 26, 2006, for —12, 634.30 and interest thereon.”

[100]      If the parties cannot agree with respect to the calculation of interest, they may seek an order within 30 days. Costs may be spoken to if necessary.

 And now…for a musical interlude….Tongue Tied by GroupLove:

Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”

May 5, 2011
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Dustin B. Benham (Texas Tech University School of Law) has published “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”, SMU Law Rev., Vol. 64, 2011.

The abstract reads:

The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.

This article proceeds in five parts. Part II examines the origins and history of modern post-judgment relief before and after the adoption of Rule 60. Next, Part III explores the distinction between intrinsic and extrinsic fraud in the context of independent actions. Part IV of this article addresses the rise of plausibility pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In these cases, the Supreme Court overruled Conley v. Gibson, announcing a new pleading paradigm that applies to all civil actions filed in federal court, including a judgment-relief action. In a move away from notice-pleading, the Court held that a civil complaint must plausibly allege a cause of action. Finally, Part V of this article contends that this increased pleading scrutiny serves as a better screening mechanism for post-judgment fraud claims than the distinction between intrinsic and extrinsic fraud does. By screening fraud claims individually, a court can better assess whether the claim could have been raised in the original litigation. Screening cases for this trait results in a better balance between the often-competing values of judgments that reflect truth and judgments that are final.

(Number of Pages in PDF File: 59)

The article may be downloaded via SSRN here.



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