UNITED STATES of America, Appellee, v. Bruce H. MASON, Defendant, Judy Martino Mason, Claimant-Appellant, 477 F. App'x 846

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order entered on December 28, 2010, is AFFIRMED. Judy Martino Mason appeals pro se from the denial of her Fed.R.Civ.P. 60(

b) motion seeking relief from an earlier denial of a Fed.R.Crim.P. 41(

g) motion for return of seized property. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm. We review the denial of a Rule 60(

b) motion for abuse of discretion, see Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998), which we will only identify where the decision rests on legal error or clearly erroneous factual finding, or falls outside the range of permissible decisions, see RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir.2003), We identify no such abuse here.

Fed.R.Civ.P. 60(b)(3) states that a “court may relieve a party ... from a final judgment, order, or proceeding for ... fraud ..., misrepresentation, or misconduct by an opposing party.” Such relief “cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits” of the underlying decision. Fleming v. N.Y. Univ., 865 F.2d 478, 484 (2d Cir.1989). Here, the district court found that Mason did not carry this burden with respect to the government’s representation that a seized fire alarm panel is no longer in its possession.

The government’s statement that it discarded the alarm panel because it suffered “smoke and heat damage” and was “filthy,” App. 255, is not so inconsistent with Mason’s evidence indicating that the alarm panel was not burned and that the alarm’s memory “would not have been damaged by what little heat or fire impinged on” it, App. 54, as to demonstrate fraud or material misrepresentation clearly and convincingly. Nor is such an inference compelled by evidence that the government denied a defense witness’s pretrial requests to examine the alarm panel.

Although Mason failed to carry her burden of proof under Rule 60(b)(3), there is no question that her reasons for seeking relief from judgment fell within that specific clause, precluding her from seeking relief alternatively under Rule 60(b)(6). See United States v. Int’l Bhd. of Teamsters, 247 F.3d 370, 391-92 (2d Cir.2001). Thus, the district court also acted within its discretion in denying Mason Rule 60(b)(6) relief. We have considered Mason’s remaining arguments and conclude that they are without merit. Accordingly, the district court’s order is AFFIRMED.