Kadiyala et al v. Pupke et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-80732-GAYLES/MATTHEWMAN
RAVI KADIYALA, individually, and as the
Assignee of CREDIT UNION MORTGAGE
UTILITY BANC, INC., an Illinois corporation,
Plaintiff,
v.
MARK JOHN PUPKE and MARIE MOLLY
PUPKE,
Defendants.
______________________________________/
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION ON DEFENDANTS’
MOTION TO VACATE PLAINTIFFS’ JUDGMENT UNDER RULE 60(b)(6) [DE 356]
THIS CAUSE is before the Court upon Defendants Mark John Pupke and Marie Molly
Pupke’s (“Defendants”) Motion to Vacate Plaintiffs’ Judgment under Rule 60(b)(6) (“Motion”)
[DE 356]. This matter was referred to the Undersigned Chief U.S. Magistrate Judge by U.S.
District Judge Darrin P. Gayles. See DE 353. The Motion is fully briefed and is ripe for review.
See DEs 360, 364, 367, 371, 372. No hearing is necessary.
I. 	BACKGROUND
This case has a long and tortured history. The Complaint was originally filed on March 23,
2016, nearly 9 years ago. [DE 1]. After a great deal of pretrial skirmishing and motion practice
between the parties, the jury trial in this case began on November 8, 2021, before U.S. District
Judge Kenneth A. Marra.1 [DE 205]. On November 18, 2021, the jury found for Plaintiff Ravi
Kadiyala (“Plaintiff”) on his claim for fraud against Defendant Mark Pupke and awarded
1 This closed case was reassigned to The Honorable Darrin P. Gayles on September 9, 2025 [DE 352] upon the well-
earned retirement of the Honorable Kenneth A. Marra.
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$500,000.00 in compensatory damages and $1 million in punitive damages. [DE 213]. The jury
also found for Plaintiff on his claim for conspiracy to commit fraud against Defendant Marie Pupke
and awarded $250,000.00 in compensatory damages and $250,000.00 in punitive damages. Id.
Lastly, the jury found for Plaintiff on his aiding and abetting fraud claim against Defendant Marie
Pupke and awarded $250,000.00 in compensatory damages and $250,000.00 in punitive damages.
Id. Thereafter, on December 17, 2021, Judge Marra entered Final Judgment. [DE 235].
Defendants appealed the decision, and Plaintiff cross-appealed. On January 3, 2024, the
United States Court of Appeals for the Eleventh Circuit issued its Opinion affirming the District
Court’s Judgment as to Defendants’ appeal, and vacating and remanding, with instructions, with
respect to Plaintiff’s cross-appeal. Kadiyala v. Pupke, No. 22-10211, 2024 WL 33910, at *2 (11th
Cir. Jan. 3, 2024). On February 21, 2024, Judge Marra entered an Amended Judgment [DE 318]
in compliance with the Eleventh Circuit opinion. Defendants did not further appeal.
A Judgment on the attorney’s fees award was entered by Judge Marra on August 30, 2024.
After that date, nothing was filed in the case until September 8, 2025, when an attorney appeared
on behalf of Defendants, and Defendants also filed a Motion to Vacate Plaintiffs’ Judgment Under
Rule 60(b)(6). [DEs 349, 350]. That motion to vacate was later stricken by Defendants, as was the
notice of appearance. [DE 354].
The pending Motion was conventionally filed on September 10, 2025, by new counsel—
Jamie Todd Foreman, Esq.—on behalf of Defendants. [DE 357]. Mr. Foreman filed a Notice of
Appearance [DE 355] on the same date. In addition to the Motion, Response, and Reply,
Defendants have repeatedly attempted to supplement the evidence supporting the Motion. [DEs
365, 367, 372, 373, 376, 379, 380].
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II. 	MOTION, RESPONSE, AND REPLY
A. 	Defendants’ Motion [DE 356]
Defendants move under “Federal Rule of Civil Procedure 60(b)(6) and this Court’s
inherent authority to sanction egregious conduct arising to a fraud upon this Court” to vacate the
judgment. [DE 356 at 1]. Defendants also rely on Rule 60(d)(3) as a basis for relief. Id. at 14. They
assert that the “shareholder agreement admitted into evidence by Plaintiffs [DE 229-1]…contains
Mark Pupke’s signature precisely the same, appearing four times, and matching his signature on
the Stock Purchase Agreement dated November 7, 2012,” and that Plaintiffs “admitted fabricated
phone records and testified perjuriously at trial to identify Maria Pupke falsely as the broker who
they claimed fraudulently induced them into purchasing Defendant’s mortgage banking business,
Euro International Mortgage (‘Euro’).” Id. at 2. As relief, Defendants broadly request that the
Court “vacate the judgment, dismiss Plaintiff’s action with prejudice, award Defendants’ attorney
fees in pursuing relief under Rule 60(b), and order any just and proper remedies or sanctions that
are within the Court’s inherent discretionary authority.” Id. at 22.
B. 	Plaintiff’s Response [DE 360]
Plaintiff responds that Defendants should have brought their Motion under Federal Rule of
Civil Procedure 60(b)(2) or (b)(3), but also that they are barred from bringing their Motion under
those subsections because it would be untimely. [DE 360 at 3–6]. Next, Plaintiff contends that
Defendants have not shown clear and convincing evidence of actual fraud; according to Plaintiff,
Defendants rehash old arguments. Id. at 6–8.
C. 	Defendants’ Reply [DE 364]
In reply, Defendants claim that they have “clearly and convincingly shown, through
Plaintiffs’ record testimony and evidence, that Plaintiffs 1) produced a signed shareholder
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agreement containing exact replicas of Defendant Pupke’s signature, which matched his signature
on the stock purchase agreement signed on November 7, 2012, and 2) stated specifically that
CUMU’s2 attorney, [Al-Haroon] Husain, managed the document signing in his office that day.”
[DE 364 at 3]. They argue that, in light of the evidence and Plaintiff’s testimony,
it stands to reason that the attorney who hosted the document signing, who
magically “reconciled versions,” and who has faced sanctions in state and federal
court 	for 	admitting 	forgeries 	and 	fabricated 	evidence—issues 	addressed 	in
Defendants’ motion—is responsible for the forged document. Facially, Hus[ ]ain’s
role with the document signing, which Plaintiffs claim was signed on November 7,
2022, in Hus[ ]ain’s office, implicates an attorney’s role in fabricating evidence,
which constitutes the egregious conduct and extraordinary circumstances required
for Rule 60(b)(6) relief as a fraud upon the court. Rozier, 573 F.2d at 1338 (5th Cir.
1978).
Id. at 3–4.
III. 	DEFENDANTS’ EXPERT WITNESS REPORT
In addition to the exhibits attached to their Motion, Defendants have filed the Expert
Witness Report of Dianne Peterson. [DE 367]. Ms. Peterson, a “Forensic Document Examiner,”
opines that the Shareholder’s Agreement has been “altered, because the signature of Mark Pupke
is a duplicated signature that was taken from the ‘Stock Purchase Agreement.’” Id. at 4. Ms.
Peterson also opines that the “Mark Pupke signature does not have any variation when compared
to the comparison signature from the Stock Purchase Agreement; they are identical.” Id. Her basis
for the opinion is that “[n]o two writings by the same or different people are identical.” Id. Ms.
Peterson, after explaining her methodology and the results of her examination, concludes that
“[t]he findings strongly support the hypothesis that Mark J. Pupke’s questioned signatures [ ] and
comparison signature [ ] are from the same source rather than different sources” and that “it is
plausible to reason that the [ ] signature image, created in 2012, was used to produce the other
2 “CUMU” is an acronym for Credit Union Mortgage Utility Banc.
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duplicated signatures [ ].” Id. at 17. Thus, she concludes that the Stock Purchase Agreement “has
been altered.” Id. at 18. She recommends that the original wet-ink Stock Purchase Agreement be
examined. Id.
Plaintiff filed a response to the expert witness report, asserting that it “objectively offers
nothing of value to this Court to help it to decide Defendants’ Motion to Vacate.” [DE 371 at 2].
He claims that “the absolute best argument that Defendants’ Expert Witness Report would be able
to support is that some unidentified person forged Mark Pupke’s signature on the Shareholder’s
Agreement. This finding is insufficient to establish the ‘egregious misconduct’ that Defendants
would need to show to justify vacating the judgment in this case under R. Civ. P. 60(d)(3).” Id. at
3. Plaintiff also maintains that the “Expert Witness Report does not, and indeed cannot, establish
that an attorney was the person who forged Mark Pupke’s signature. In fact, the Report does not,
and indeed cannot, establish that Plaintiff or anyone connected to Plaintiff was the person who
forged Mark Pupke’s signature.” Id. at 3–4. He argues that, at best, the report “would have only
established the occurrence of ‘ordinary’ fraud, like that contemplated by Fed. R. Civ. P. 60(b)(3),
and not the ‘egregious misconduct’ needed to receive relief under Fed. R. Civ. P. 60(d)(3).” Id. at
4. Finally, Plaintiff maintains that the report is untimely. Id. at 4–6.
In reply, Defendants acknowledge that, before the case went to trial, Defendants alleged
that the shareholder agreement had been forged. [DE 372 at 3]. They argue, however, that “no
officer of the court—neither Defendant’s counsel nor Plaintiffs’ counsel—brought to the court’s
attention that the shareholder agreement contained Mark Pupke’s signature, appearing four times,
precisely the same, and matching his signature on the stock purchase agreement signed in advance
of the January 1, 2013, closing.” Id. Then the signed shareholder agreement was admitted into
evidence. Id. Defendants further assert that, “if the court has the authority to determine the
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authenticity of Mark Pupke’s signature on the shareholder agreement,” then “it must hold the
attorneys who litigated this matter responsible for knowingly admitting altered evidence to secure
a favorable judgment, thereby implicating an attorney’s role in submitting fabricated evidence,
which constitutes a fraud upon the court.” Id. at 4.
IV. 	APPLICABLE LAW
Rule 60(b)(6) permits a Court to relieve a party from a final judgment or order for “any
other reason that justifies relief.” Fed. R. Civ. 60(b)(6). “Rule 60(b)(6) permits a court to relieve a
party from a final judgment or order for any reason that justifies relief that is not otherwise
specified in Rule 60(b)(1) through (5).” Lustig v. Stone, No. 15-20150-CIV, 2019 WL 11660556,
at *6 (S.D. Fla. Apr. 29, 2019), aff’d, 813 F. App’x 461 (11th Cir. 2020) (citing Solaroll Shade &
Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986)). A motion under
Rule 60(b)(6) “must be made within a reasonable time[.]” Fed. R. Civ. P. 60(c)(1). “A
determination of what constitutes a reasonable time depends on the facts in an individual case, and
in making the determination, courts should consider whether the movant had a good reason for the
delay in filing and whether the non-movant would be prejudiced by the delay.” Ramsey v. Walker,
304 F. App’x 827, 828 (11th Cir. 2008). “Relief under Rule 60(b)(6) is only available in
‘extraordinary circumstances.’” Fed. Trade Comm’n v. Nat’l Urological Grp., Inc., 80 F.4th 1236,
1244 (11th Cir. 2023) (citing Gonzalez v. Crosby, 545 U.S. 524, 536 (2005)); see also BLOM Bank
SAL v. Honickman, 605 U.S. 204, 210 (2025). “Even then, whether to grant the requested relief is
a matter for the district court’s sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d
1307, 1317 (11th Cir. 2000) (alteration adopted) (citation and internal quotation marks omitted).
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“This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to be
preserved.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (citing Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 873 (1988)).
Federal Rule of Civil Procedure 60(d) states that Rule 60 does not limit a court’s power to
“set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). “Where relief from a
judgment is sought due to fraud on the court, the fraud must be established by clear and convincing
evidence.” Gupta v. Walt Disney World Co., 482 F. App’x 458, 459 (11th Cir. 2012) (citing Booker
v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987)). “[O]nly the most egregious misconduct, such as
bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute a fraud on the court.” Id. (citing Rozier v. Ford Motor Co.,
573 	F.2d 	1332, 	1338 	(5th 	Cir. 	1978)). 	“Stated 	differently, 	the 	movant 	must 	show 	an
‘unconscionable plan or scheme’ to improperly influence the court’s decision.” Id. (quoting Rozier,
573 F.2d at 1338). “Fraud between parties does not constitute fraud on the court, as it does not
carry the same threat of public injury.” Id. (citing S.E.C. v. ESM Grp., Inc., 835 F.2d 270, 273
(11th Cir. 1988)).
V. 	ANALYSIS
1. 	The Motion is Untimely
Plaintiff first argues that Defendants’ Motion should have been brought under Rule
60(b)(2) or (3), which subsections require that a motion be brought “no more than a year after the
entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c)(1). Rule
60(b)(2) pertains to “newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b)”, and Rule 60(b)(3) pertains to
“fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
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opposing party.” Fed. R. Civ. P. 60(b)(2)–(3). Defendants are alleging fraud, misrepresentation, or
misconduct by an opposing party. Thus, they should have moved under Rule 60(b)(3) and not Rule
60(b)(6). If they had moved under the correct subsection, the Motion would have been untimely
as it was filed more than a year after the entry of the Amended Judgment on February 21, 2024.
Even if the deadline started tolling on the date the Judgment on attorney’s fees was filed, the
Motion would still have been outside of the one-year period. Therefore, Defendants are improperly
attempting to circumvent the untimeliness of their Motion under Rules 60(b)(2) and (b)(3) by
resorting to Rule 60(b)(6). But as discussed below, that effort is doomed.
Even if the Motion was properly brought under Rule 60(b)(6), the Court must first
determine whether it was brought “within a reasonable time.” Fed. R. Civ. 60(c)(1). It was not.
Defendants claim that they sought legal counsel a week after the appellate court issued its mandate
and that they contacted 21 attorneys between February 2024 and June 2025. [DE 356 at 18]. They
claim that they were not able to retain the counsel who filed their Motion until June 29, 2025. Id.
This struggle to retain counsel is unsupported and does not substantiate Defendants’ position that
the Motion was filed within a reasonable time. As stated above, the Amended Judgment was filed
on February 21, 2024. Defendants filed their Motion more than a year and a half later. Even more
importantly, the Motion is generally premised on facts and arguments that were already presented
to this Court during the pendency of the case; it was not filed within a reasonable time in this
context. Thus, the pending Motion under Rule 60(b)(6) was not filed within a reasonable time.
Even though the Motion is untimely filed and due to be denied on that basis alone, the Court will
nonetheless proceed to analyze the substance of the Motion to ensure a complete record.
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2. 	The Motion Fails on the Merits
Upon careful review of all of the papers, the evidence, the docket in this case, the arguments
of counsel, and the applicable law, the Court finds that Defendants have neither established
extraordinary circumstances per Federal Rule of Civil Procedure 60(b)(6) nor fraud on the Court
by clear and convincing evidence per Federal Rule of Civil Procedure 60(d)(3). The Court
emphasizes that the Motion is rambling in nature and does not present persuasive arguments
clearly supported by specific, clearly articulated and detailed facts. Additionally, as explained
further below, Defendants raise issues that were, at some level, already raised in this case.
It appears that the primary evidence upon which Defendants is relying to support the relief
sought in the Motion is as follows: (1) “Plaintiffs admitted a forged shareholder agreement into
the record as proof of executing the sale of Euro at a closing that they did not attend”; (2) Plaintiffs
“produced patently manipulated mobile phone bills to support their perjured testimony at trial to
convince the jury that Mary Pupke was the mysterious broker Nicole Ellerstein who induced them
into purchase Euro that they never intended to purchase”; and (3) Plaintiffs “intentionally and
consistently misled Defendants and the Court about key material facts, such as misspelling
CUMU’s only specifically identified investor who had a case pending in Illinois while this case
was before the Court, seeking the return of a $400,000 CUMU investment warehoused in Husain’s
trust account.” [DE 356 at 16]. These are all issues that Defendants should have and could have
effectively dealt with during trial.
As to their argument that Plaintiffs admitted a forged shareholder agreement into the record
at trial, first, Defendants have not established by clear and convincing evidence that the agreement
was forged by Plaintiff’s former counsel. Even if the Court accepted the opinion contained within
Defendants’ untimely filed expert report on its face, the expert did not opine as to who created the
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allegedly forged document, and Defendants have only provided circumstantial evidence that it was
Plaintiff’s former counsel. Second, even if Defendants had proven that the agreement was
fraudulent by clear and convincing evidence, this would constitute fraud on Defendants and not
fraud on the Court. Third, the issue of the forged document was, in fact, presented to the Court
before trial, as admitted by Defendants in their papers. In order to avoid this fact, Defendants argue
that no counsel for any party “brought to the court’s attention that the shareholder agreement
contained Mark Pupke’s signature, appearing four times, precisely the same, and matching his
signature on the stock purchase agreement signed in advance of the January 1, 2013, closing.” [DE
372 at 3]. However, the more general issue of the forged agreement was raised before and at trial,
and nothing prevented Defendants’ counsel from raising a more specific argument at trial.
Defendants chose how to present their defenses at trial, and their failure to present certain evidence
or testimony at the time of trial falls on Defendants’ shoulders. Finally, the Court rejects
Defendants’ argument that “Plaintiffs took great lengths to shield their actions from relevance, like
in their motion in limine, which suggested Husain was an irrelevant, tangential CUMU participant
and attempted to whitewash his history of fabricating evidence.” [DE 356 at 17]. Plaintiffs simply
advocated for their position in a motion in limine, and Defendants had the opportunity to respond
to those arguments.3 In sum, Defendants simply have not shown that extraordinary circumstances
or clear and convincing evidence of fraud on the Court exist here.
3 Before the trial in this case, Plaintiff filed a Motion in Limine to Bar Testimony or Argument Regarding Plaintiff’s
Previous Counsel’s Unrelated Legal Issues [DE 193]. Specifically, Plaintiff argued that “Defendants and their counsel
should be barred from offering any testimony or argument related to [Al-Haroon B.] Husain’s unrelated sanctions,
suspension, and disbarment from bankruptcy court practice.” Id. at 2. In response, Defendants noted that “there have
been issues connected to forged documents that Defendant[ ], as a matter of justice, should be able to present.” [DE
197 at 2]. Defendants explained that “Mr. Husain had opportunity and motive to conduct actions regarding the
falsification of documents and was quite liberal with his Notary stamp as well. In fact, Mr. Husain may have forged
documents independent of Plaintiff.” Id. at 3. Clearly, these issues were known to Defendants at the time of trial and
should have been raised at that time.
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As to Defendants’ argument that Plaintiffs produced fraudulent mobile phone bills to
support their perjured testimony at trial to convince the jury that Marie Pupke was the broker
Nicole Ellerstein, this issue was already presented at trial. More specifically, Marie Pupke testified
in front of the jury that she believed that Plaintiff had created a document and put her phone number
on it because “they have a pattern of forgery and fraud.” [DE 263 at 20: 2–7]. When asked whether
Mrs. Pupke was saying that Plaintiff “went back to Sprint and phonied up the phone with their
number on it,” she testified that the document was, indeed, created after the fact. Id. at 148: 24–
149: 3. Additionally, Mark John Pupke testified that he believed that an individual named Ahmed
Fazil was Nicole Ellerstein and that his wife, Mrs. Pupke, was not Nicole Ellerstein. [DE 264 at
163: 15–164: 6]. He also explicitly testified that Nicole Ellerstein was not Mrs. Pupke. Id. at 166:
4–5. Thus, there was trial testimony about the allegedly fraudulent mobile phone bills and about
Mrs. Pupke not being Nicole Ellerstein. The Court also notes that, in Defendants’ Motion, they
even admit they “watched a line of questioning unfolding that was in stark contrast to the record
evidence, which they claim was fabricated.” [DE 356 at 8]. Thus, Defendants should have dealt
with this issue years ago during the crucible of trial. At this late date, Defendants again cannot
establish extraordinary circumstances or fraud on the Court by raising issues that existed at the
time of trial.
Finally, as to Defendants’ argument that Plaintiff intentionally misled them and the Court
about key material facts, Defendants admit that Plaintiff’s motion in limine [DE 193] pertained to
Mr. Husain’s unrelated legal issues. Thus, Defendants had notice of Mr. Husain’s alleged history
of fabricating evidence prior to trial. Defendants also contend that “the case involving Husain’s
fabricated expert witness testimony in Stoyanov v. Himont Law Group, Ltd., 2024 IL App (1st)
221434- U, which required Husain to return Stoyanov’s $400,000 CUMU investment made
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immediately before CUMU’s first failed contract to purchase Euro, was ongoing at the time. Yet,
Plaintiffs’ attorneys did not correct Fazil’s misspelling or mispronunciation of Stoyanov, ensuring
that the case remained concealed from Defendants and directly impairing their ability to defend
themselves.” [DE 372 at 5]. Misspelling a name constitutes neither extraordinary circumstances
nor clear and convincing evidence of fraud on the Court; if anything, it may be circumstantial
evidence of fraud on Defendants (and not the Court). Most importantly, no evidence has been
presented that the name was intentionally misspelled. Once again, Defendants have not established
extraordinary circumstances or clear and convincing evidence of fraud on the Court. This argument
is completely frivolous.
The Court has also considered the other, less significant allegations made against Plaintiff
in Defendants’ papers. Even considering all of Defendants’ allegations and evidence collectively,
Defendants clearly have not met the strict requirements of Rules 60(b)(6) or 60(d)(3). Therefore,
their Motion is due to be denied.
VI. 	CONCLUSION
Defendants have been litigating this case for nearly 9 years. They proceeded to a jury trial
in 2021 and lost at trial [DE 213] and later on appeal [DE 314]. They now cavalierly seek broad
and unwarranted relief from this Court, requesting that it vacate the judgment, dismiss Plaintiff’s
claims with prejudice, and award Defendants their attorneys’ fees. Defendants opted to file their
Motion under Federal Rules of Civil Procedure 60(b)(6) and 60(d)(3) but, on these facts,
Defendants are not entitled to any relief whatsoever. Not only is the Motion untimely, but
Defendants are also unable to meet the high burdens imposed by each of those rules. Simply stated,
the pending Motion is too little, too late and due to be denied.
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In light of the foregoing, the undersigned Chief United States Magistrate Judge
RECOMMENDS that Defendants’ Motion to Vacate Plaintiffs’ Judgment under Rule 60(b)(6)
[DE 356] be denied for the reasons stated in this Report and Recommendation.
NOTICE OF RIGHT TO OBJECT
The parties shall have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with United States
District Judge Darrin P. Gayles. Failure to file objections timely shall bar the parties from a de
novo determination by the District Judge of an issue covered in the Report and Recommendation
and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions
contained in this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474
U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED in Chambers at West Palm Beach, Florida, this 22nd
day of January 2026.
WILLIAM MATTHEWMAN
Chief United States Magistrate Judge
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