NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-1490 ___________

CAROLYN J. FLORIMONTE, Appellant

v.

BOROUGH OF DALTON, also known as Borough Council ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-17-cv-01063) District Judge: Honorable Robert D. Mariani ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) August 23, 2018

Before: SHWARTZ, KRAUSE and FUENTES, Circuit Judges

(Opinion filed: August 24, 2018) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Carolyn Florimonte appeals the District Court’s order dismissing her complaint.

For the reasons below, we will affirm the District Court’s order.

The procedural history of this case and the details of Florimonte’s claims are well

known to the parties, are set forth in the Magistrate Judge’s Report and Recommendation,

and need not be discussed at length. Briefly, Florimonte filed a lawsuit in state court

complaining of drainage pipes that Appellee Borough of Dalton allegedly installed on her

property before she purchased it and which discharged water that damaged her property.

She obtained equitable relief (the filling and capping of the pipes), but waived her right to

damages. 1 She filed eight more actions in the state court which were dismissed because

she was suing over the same set of facts. In 2014, Florimonte filed a complaint in the

United States District Court for the Middle District of Pennsylvania. The District Court

dismissed her claims as barred by the doctrine of res judicata. Florimonte appealed, and

we affirmed the District Court’s decision. See Florimonte v. Borough of Dalton,

(3d Cir. May 20, 2015) (per curiam).

In June 2017, Florimonte filed another complaint in the District Court. Seeking to

undermine the res judicata ruling, she alleged that the Borough prevailed in all the prior

cases due to fraud and requested that all the state and federal judgments against her be

vacated. She contended that the District Court had the power under Fed. R. Civ. P.

1 The Commonwealth Court determined that Florimonte “abandoned her claim for money damages, specifically objected to the inclusion of damages, and stated she would only continue with her equitable claim. Accordingly, Appellant has affirmatively waived her right to recover money damages.” Florimonte v. Borough of Dalton, No 987 C.D. 2012,

, at *11 (Pa. Commw. Ct. April 4, 2013) (citations omitted). 2 60(d)(1) and (3) to entertain the action. She listed over thirty documents which she

believed were “self-explanatory” and provided a “comprehensive history of the frauds.”

The Borough filed a motion to dismiss, and Florimonte filed an amended complaint. A

Magistrate Judge recommended that the motion to dismiss be granted for failure to state a

claim. The District Court adopted the Magistrate Judge’s Report and Recommendation

and dismissed the complaint. Florimonte filed a timely notice of appeal.

We have jurisdiction pursuant to

. In his Report and

Recommendation, the Magistrate Judge set forth the lengthy litigation history between

the parties and performed a thorough analysis of Florimonte’s arguments. We have little

to add to his analysis. We agree with the District Court that Florimonte has failed to state

claims for relief under Fed R. Civ. P. 60(d)(1) & (3) and, therefore, has not shown that

the District Court’s earlier res judicata ruling should be set aside.

Pursuant to Rule 60(d)(1), an independent action is available to relieve a party

from a judgment, but “only to prevent a grave miscarriage of justice.” United States v.

Beggerly,

(1998). Under Rule 60(d)(3), a court may set aside a judgment

for fraud on the court. Fraud on the court must be intentional, directed at the court, and

committed by an officer of the court. In re Bressman,

(3d Cir. 2017).

A finding of fraud on the court requires “egregious conduct” and must be supported by

“clear, unequivocal, and convincing evidence.”

The fraud must deceive the court.

In her brief, Florimonte explains that the fraud she complains of is the Borough’s

alleged failure to admit that it installed the drainage pipes on her property. Br. at 10.

3 While she alleges that the Borough destroyed documents, her evidence in support is a

letter she wrote to her attorney alleging that an anonymous source told her that

unspecified documents were being shredded at the Borough’s office. Likewise, she

suggests that her own statements in her complaint provide proof of fabrication of

evidence. Br. at 19. Moreover, the documents she points to as evidence were available

to her at the time she filed her first federal complaint. Thus, she could have brought this

alleged fraud to the District Court’s attention during the proceedings addressing her first

federal complaint.

Florimonte has failed to set forth facts suggesting a grave miscarriage of justice.

Nor has she alleged egregious conduct or intentional fraud that deceived the District

Court. As noted by the Magistrate Judge in his Report and Recommendation, “[a]ll of

the conduct alleged occurred prior to the initiation of that federal civil action, none of it

was directed at this Court, and none of it can be said to have deceived this Court.”

Report and Recommendation at 17. Florimonte has not shown that the District Court

erred in refusing to set aside its prior judgment. 2

2 In her brief, Florimonte repeatedly criticizes the Magistrate Judge for mentioning that her witness, Robert Fisher, testified at the state court trial. She emphasizes that Fisher died in 2010 and state court trial was in 2011. However, Florimonte herself asserted in her amended complaint that “[o]n April 3, 2009, Fisher would testify that defendant secretly installed the pipes . . . and that the owners were angry with the Borough.” Am Compl. at 8. While Fisher may have died before the state court trial, he was available and provided testimony for Florimonte at a hearing for a preliminary injunction. This very minor issue does not undermine the Magistrate Judge’s thorough analysis of Florimonte’s arguments.

4 For the above reasons, we will affirm the District Court’s judgment. 3

Florimonte’s motion to strike Appellee’s brief is denied.

3 In Florimonte’s prior appeal, we declined the Borough’s request that she be restricted from filing additional appeals. We noted that: Although Florimonte has filed several actions in state court on this matter, this is her first in federal court, and thus an injunction on her access to this Court seems premature. If Florimonte files additional duplicative or frivolous actions on this matter in the future, then we will reconsider whether to restrict her access to this Court or to impose other appropriate sanctions, including monetary penalties. Florimonte,

. We strongly warn Florimonte that continued duplicative or vexatious litigation will lead to monetary sanctions and filing restrictions. 5