Horowitz et al v Federal Insurance Company
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/22/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ROBERT HOROWITZ, et al.
Civil Action No. DKC 15-1959
FEDERAL INSURANCE COMPANY
d/b/a Chubb & Son
insurance case is a motion for relief from judgment filed by
Plaintiffs Robert and Cathy Horowitz (“Plaintiffs”).
The issues have been fully briefed, and the court now
rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, the motion for relief from judgment
will be denied.
The factual and procedural background to this case may be
found in the memorandum opinion issued on January 4, 2016.
No. 14, at 1-2).
That opinion and an accompanying order granted
a motion to dismiss filed by Defendant Federal Insurance Company
Plaintiffs then filed a motion to alter or amend
the judgment pursuant to Fed.R.Civ.P. 59(e) which was denied on
May 27, 2016.
(ECF No. 19).
Plaintiffs appealed, and the
United States Court of Appeals for the Fourth Circuit affirmed
(ECF No. 24).
(ECF No. 26).
Defendant responded, (ECF No. 28), and
(ECF No. 31).
Standard of Review
proceeds in two stages:
On May 25, 2017, Plaintiffs filed
first, the court must assess whether
second, if the threshold requirements have been met, the court
must determine whether the movant has satisfied one of the six
enumerated grounds for relief under the rule.”
Holland v. Va.
Lee Co., Inc., 188 F.R.D. 241, 248 (W.D.Va. 1999) (citing Nat’l
Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264, 266 (4th Cir.
The threshold requirements are timeliness, a meritorious
claim or defense, and the absence of unfair prejudice to the
Rule 60(b) allows for a party to move for relief
from a judgment based on one of six grounds including “newly
whether to exercise the power under Rule 60(b), courts must
judgments, expressed in the doctrine of res judicata, and the
incessant command of the court’s conscience that justice be done
in light of ALL the facts.”
Compton v. Alton S.S. Co., 608 F.2d
96, 102 (4th Cir. 1979) (emphasis in original) (quoting Banker’s
Mortg. Co. v. United States, 423 F.2d 73, 77 (5th Cir. 1970)).
because it was filed within a year of the court’s ruling on its
decision in the case between these parties before the Maryland
Defendant argues that the motion is late because judgment was
entered more than a year before the motion and, regardless,
Plaintiffs did not file within a reasonable time.
(ECF No. 28,
“affect the finality of the judgment.”
committee notes to 1995 amendment.
Fed.R.Civ.P. 59 advisory
A Rule 59 motion acts to
court has ruled.
Communist Party of Ind. v. Whitcomb, 414 U.S.
441, 445 (1974).
Thus, a Rule 59 motion tolls the date of final
judgment for the purposes of “the appeals-limitation period.”
Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978).
have also held that a Rule 59 motion tolls the date of final
district court including motions pursuant to Rule 60.
Ctr. for Tech. Assessment v. Leavitt, 468 F.Supp.2d 200, 206
(D.D.C. 2007) (“In other words, the suspension of finality on
applicable to an appeal.
Accordingly, the court concludes that
a timely filed Rule 59(e) motion suspends the finality of a
judgment not just at the appellate level, but at the district
court level as well.”).
Although that ruling is logical and
because, even if timely, the motion will be denied on other
within a year of final judgment but also that it be filed within
“a reasonable time.”
Plaintiffs claim that their delay was
reasonable because the delay allowed them to incorporate an MIA
decision into their motion.
(ECF No. 26, at 5).
argues the delay was unreasonable.
When a party waits for a few
of months to “strengthen the basis for [a] motion”, the delay is
Bouret-Echevarria v. Caribbean Aviation Maintenance
Corp., 784 F.3d 37, 44 (1st Cir. 2015) (finding reasonable a
support a motion pursuant to Rule 60(b)).
delayed six months which allowed for further development in a
related administrative proceeding.
This delay is not an example
of a party sleeping on its rights but rather of using additional
time to attempt to improve their case.
Thus, Plaintiffs’ motion
filed shortly after a ruling in the administrative proceeding
was filed within a reasonable time.
See Wells Fargo Bank, N.A.
v. AMH Roman Two NC, LLC, 859 F.3d 295, 300 (4th Cir. 2017).
Plaintiffs allege that setting aside the judgment will not
unfairly prejudice Defendant.
does not dispute this.
(ECF No. 26, at 6).
(ECF No. 28).
There does not appear to
be any loss of evidence or witnesses.
See Westlake Legal Group
v. Yelp, Inc. 599 F.App’x 481, 484 (4th Cir. Mar 18, 2015).
Meritorious Claim or Defense
have a meritorious claim or defense.
To satisfy this element,
the movants must make “a proffer of evidence which would permit
a finding for the [moving] party[.]”
Holland v. Va. Lee Co.,
Inc., 188 F.R.D. 241, 249 (W.D.Va. 1999) (alteration in the
original and quoting Augusta Fiberglass Coatings, Inc. v. Fodoc
Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988)).
motion pursuant to Rule 60(b)(2), the newly discovered evidence
11 Charles Alan Wright, Arthur R. Miller, Mary Kay
Kane, Federal Practice & Procedure § 2859 (3d ed. 2017).
during proceedings before the MIA shows that Defendant paid for
debt collection activities. (ECF No. 26, at 7).
an audit report prepared by Defendant.
This exhibit is
The report does not
Indeed, it only identifies the disallowance of certain
report is consistent with the reasoning in the original judgment
that Defendant did not engage in debt collection activities,
pursuant to Rule 60(b)(2) will be denied.
judgment filed by Plaintiffs Robert and Cathy Horowitz will be
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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