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Where a plaintiff has brought suit seeking to set aside a judgment “due to extrinsic fraud on the court,” the defendants should be awarded summary disposition because the plaintiff fails to allege grounds for an independent action to set aside the judgment under MCR 2.612(C)(3).
“… Plaintiff filed the instant action against SS Mitx, LLC (‘SS Mitx’), Lamar Advertising of Michigan, Inc. (‘Lamar’), and the law firms, Alitor Law, PC, and Stark Reagan, PC, who represented Lamar and SS Mitx in the Original Case. Plaintiff also included as a Defendant Patrick Depa (‘Depa’), a witness who allegedly provided a false affidavit in the Original Case. …
“Plaintiff fails to allege grounds for an independent action to set aside the Judgment under MCR 2.612(C)(3). The fraud alleged, the drafting and obtaining a false affidavit to support its motion to set aside the first verdict is intrinsic fraud, is fraud occurring within the case.
“Additionally, courts have treated allegations of false statements in affidavits on par with false statements made during trial. …
“To the extent that the Complaint alleges that the actions of Defendant attorneys in filing the Depa Affidavit and/or making false statements to the court were fraudulent, these are actions which allegedly occurred within the case and are also properly classified as intrinsic fraud. …
“Based on the foregoing, Plaintiff has not alleged extrinsic fraud and therefore has failed to state a claim under MCR 2.612(C)(3). Summary disposition under MCR 2.116 (C)(8) is granted as to Count I. …
“Defendants first argue that Plaintiff’s tort claim for willful and wanton misconduct fails under the judicial proceedings privilege. …
“Based on the foregoing, the Court agrees that Defendants are immune from the allegation in Count IV under the judicial proceedings privilege. Summary disposition is granted under MCR 2.116(C)(8).”
