Pyramid Technology Corp. v. Nicoles, Inc.

MEMORANDUM *

Appellant Nicoles, Inc. (“Nicoles”), appeals the denial of a motion to vacate an award of summary judgment on the grounds that the prevailing party, Pyramid Technology Corporation (“Pyramid”), committed a fraud on the court. We affirm for three reasons.

First and most important, Nicoles failed to prove that Pyramid committed a fraud on the court. Pyramid’s counsel’s statements at closing argument show no fraud, much less an unconscionable plan or scheme to defraud. See England v. Doyle, 281 F.2d 304, 309 (9th Cir.1960). Regardless of appellants’ argument that England should not be the standard for determining what constitutes a fraud on the court, by any standard a fraud on the court requires a fraud. See In re Levander, 180 F.3d 1114, 1119-20 (9th Cir.1999). Nothing in the record establishes that Pyramid used false evidence or did anything else that was fraudulent in support of its motion for summary judgment on the counterclaims by Nicoles.

Second, the timing of this motion-nearly three-and-a-half years after trial-is improper. The alleged fraud occurred in open court during trial. Nicoles failed to object to the closing argument, failed to raise the issue of…