HIBBERT v. BELLMAWR PARK MUTUAL HOUSING CORPORATION et al

Filing 110

OPINION. Signed by Judge Noel L. Hillman on 7/18/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
MARK E. HIBBERT,

:
:
:
Plaintiff,
:
:
v.
:
:
:
BELLMAWR PARK MUTUAL HOUSING :
CORPORATION, PAT LEVINS, and :
BOB McCORMICK,
:
:
Defendants.
:
______________________________:

Civil No. 10-5386 (NLH/JS)

OPINION

APPEARANCES:
MARK E. HIBBERT, SR.
33 SKYLINE DR
SICKLERVILLE, NJ 08081
Plaintiff Pro Se
William J. Martin
Martin, Gunn & Martin
216 Haddon Avenue
Suite 420
Westmont, NJ 08108
Attorney for Defendants
Corporation and Pat Levins

Bellmawr

Park

Mutual

Housing

Joseph M. Feeney
Brown & Connery
6 North Broad Street
Woodbury, NJ 08096
Attorney for Defendant Bob McCormick
Hillman, District J.
Currently pending before the Court is a “Motion to Reopen”
[Doc. No. 105], “Notice of Request for New Trial” [Doc. No.
108], and “Notice of Request for an American Sign Language

Interpreter” [Doc. No. 109] filed by pro se Plaintiff Mark E.
Hibbert.

Defendants Bob McCormick (“McCormick”), Bellmawr Park

Mutual Housing Corporation, and Patricia Levins (“Bellmawr Park
Defendants”) filed oppositions to the “Motion to Reopen.”

For

the reasons that follow, Plaintiff’s motions will be denied.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case concerns the property sale of 506 West Browning

Road, Bellmawr, New Jersey, which took place on or about March
7, 2010.

Hibbert, who is deaf, was a resident of Bellmawr Park,

a non-profit corporation that provides low-cost housing in
southern New Jersey.

Residents of Bellmawr Park do not own

their units but may sell improvements made to their units.
In December 2009, Hibbert met with the Bellmawr Park Board
of Trustees to discuss his intent to sell his unit and move to
Maine.

The meeting was also attended by Hibbert’s teenage son,

Mark Hibbert Jr. (“Mark Jr.”), who served as an interpreter
during the meeting, as well as Defendant Pat Levins and several
other members of the Board.

Levins thereafter contacted

Defendant Robert McCormick who was interested in buying
Hibbert’s unit.
On January 29, 2010, Hibbert signed a Purchase and Sale
Agreement for the purchase of a mobile home property at 2196
Sanford Road, Lot 28, Wells, Maine.

Hibbert entered into an

Addendum to that agreement on February 24, 2010.
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Soon

thereafter, Hibbert expressed his desire to pull out of the
purchase but was advised by his real estate agent that he would
lose his deposit.
On March 7, 2010, Hibbert received a check in the amount of
$20,000 from McCormick and moved out of Bellmawr Park.

Hibbert

originally told the Court that he did not know what the check
was for.

However, during supplemental discovery, it was

determined that Hibbert needed $17,000 in order to close on the
Maine property.

The next day, Plaintiff attended the closing to

purchase 2196 Sanford Road in Wells, Maine, and moved in to the
residence with his family.
Hibbert claims that he was unlawfully evicted and forced to
move out of his home in New Jersey on March 7, 2010, and that
Levins and McCormick took advantage of his disability.
Plaintiff’s amended complaint asserted the following counts
against Defendants: (1) breach of contract; (2) violation of the
New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A § 10:512 et seq.; (3) violation of the New Jersey Fair Eviction Notice
Act, N.J.S.A. § 2A:42-10.15 et seq.; (4) violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.; (5) violation of the New Jersey Statute of Frauds,
N.J.S.A. § 25:1-5 et seq.; and (6) violation of the Fair Housing
Act (“FHA”), 42 U.S.C. § 3601 et seq.

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On July 16, 2012, the Bellmawr Park Defendants moved for
summary judgment on the entirety of Plaintiff's amended
complaint.

That motion was granted in part and denied in part.

Count III (New Jersey Statute of Frauds claim), Count IV (ADA),
and Count V (New Jersey Fair Eviction Notice Act claim) were
dismissed as to the Bellmawr Park Defendants.

Defendants’

request to dismiss the remaining claims, Count I (breach of
contract), Count II (NJLAD), and Count VI (FHA), was denied.
On November 11, 2013, McCormick filed a supplemental motion
for summary judgment.

On January 21, 2014, the Bellmawr Park

Defendants filed a second motion for summary judgment.

These

motions addressed the remaining counts in Plaintiff’s amended
complaint: Count I (breach of contract); Count II (NJLAD); and
Count IV (FHA).

Both motions were granted and McCormick was

granted leave to file motions for sanctions.
The civil case was terminated on July 21, 2014.

McCormick

filed a motion for sanctions which was denied as untimely on
December 1, 2014.

On July 25, 2014, Plaintiff filed a notice of

appeal to the Third Circuit.

On October 5, 2015, the Third

Circuit affirmed the Court’s June 27, 2014 Opinion granting
summary judgment in favor of Defendants.

The Third Circuit also

granted McCormick’s motion for damages and costs for the filing
of a frivolous appeal.

Thereafter, on November 13, 2015,

Hibbert, appearing pro se, filed a brief apparently in
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opposition to the summary judgment motions that the Court
decided on June 27, 2014, which were subsequently affirmed by
the Third Circuit.

Plaintiff’s former counsel, Barry J. Beran,

was terminated on December 16, 2015.

Since then, Plaintiff has

filed a motion to reopen and notice of request for new trial
which requests relief pursuant to Federal Rules of Civil
Procedure 60(b) and 57.
II.

Plaintiff also requests an interpreter.

DISCUSSION
Federal Rules of Civil Procedure 60(b) and (c) provide:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable
neglect;

(2)

newly discovered evidence that, with reasonable
diligence, could not have been discovered in time
to move for a new trial under Rule 59(b);

(3)

fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by
an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

(c) Timing and Effect of the Motion.
(1)

Timing. A motion under Rule 60(b) must be made
within a reasonable time—and for reasons (1),
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(2), and (3) no more than a year after the entry
of the judgment or order or the date of the
proceeding.

Plaintiff appears to be making an application under Rule
60(b)(3), for fraud, and perhaps under Rule 60(b)(6), on the
grounds that the Court failed to consider all evidence.

As a

preliminary matter, Plaintiff’s application under Rule 60(b)(3)
is untimely because it was filed on January 29, 2016, more than
a year after the entry of judgment on June 27, 2014.

See Fed.

R. Civ. P. 60(c); see also GLeS Inc. v. MK Real Estate Developer
& Trade Co., 530 F. App'x 153, 154 (3d Cir. 2013) (barring
motion made pursuant to Rule 60(b)(3) filed 13 months after
judgment was entered).

A motion made pursuant to Rule 60(b)(6),

however, must be made “within a reasonable time.”
Civ. P. 60(c).

See Fed. R.

Here, one year and seven months have elapsed

between the judgment and instant application, which is not a
reasonable time under the circumstances.

Gordon v. Monoson, 239

F. App'x 710, 713 (3d Cir. 2007) (“A motion under Rule 60(b)(6)
filed more than a year after final judgment is generally
untimely unless ‘extraordinary circumstances’ excuse the party's
failure to proceed sooner.”).

Plaintiff has offered no

explanation why he was prevented from filing this motion in a
timely manner.

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Even if Plaintiff was not time barred, a “movant under Rule
60(b) bears a heavy burden to present ‘more than a showing of
the potential significance of the new evidence.’”

Groeber v.

Friedman & Schuman P.C., 602 F. App'x 69, 70 (3d Cir. 2015),
cert. denied, 136 S. Ct. 695, 193 L. Ed. 2d 521 (2015), reh'g
denied, 136 S. Ct. 1249 (2016) (quoting Bohus v. Beloff, 950
F.2d 919, 930 (3d Cir. 1991)).
“heavy burden.”

Plaintiff has not met this

In his brief, Plaintiff recites the same facts

previously considered in the summary judgment motions.

The

Court has extracted the following allegations from Plaintiff’s
brief:


The Court ignored “deaf discrimination.” (Br. at 2.)



Levins forged Hibbert’s signature to transfer the property.
(Br. at 4.)



On March 2, 2010, Levins tried to “push” Plaintiff into
signing transfer papers without an interpreter.

(Br. at

5.)


On March 2, 2010 McCormick told Levins to harass
Plaintiff’s son on his cell phone which continued for
several days.



(Br. at 5.)

McCormick lied in his (unspecified) “statement” and “lied
when he said they [McCormick and Plaintiff] had talked
about the house and money.”

(Br. at 5.)

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

McCormick lied in Court by saying he communicated with
Plaintiff between January 19, 2010 and March 7, 2010. (Br.
at 6.)



The Bellmawr Housing Defendants should have used an
interpreter during the Board meeting. (Br. at 6.)



The housing board’s lawyer lied about “explain[ing] the
situation” to Plaintiff.” (Br. at 7.)



In July 2009, Levins ripped up some form of paperwork.
(Br. at 7.)



Levins lied to the Court when she said Plaintiff “wanted to
move.” (Br. at 7.)

These allegations boil down to four main arguments: (1)
Plaintiff was discriminated against based on his disability, (2)
Plaintiff was coerced into selling his unit when he desired to
stay, (3) the paperwork for the sale was either forged or
destroyed, and (4) Levins lied to the Court.
First, the Court previously considered Plaintiff’s
disability and the fact that a certified interpreter was not
present at the board meeting.

The Court found that Plaintiff

did not provide evidence that he was unable to understand the
events at issue through other means of communication.
2014 Op. at 23.)

(June 27,

Plaintiff has provided no new evidence to

suggest otherwise.

Second, the Court considered evidence that

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Plaintiff put a down payment on a new home in Maine using the
money from the sale of his Bellmawr Park unit, attended the
property closing in Maine on March 8, 2010, and moved in to his
new home in Maine.

The Court found that Plaintiff did not

present sufficient facts that could show that Defendants coerced
him into leaving.

(Op. at 16-17.)

Finally, there is

insufficient information regarding the forged or destroyed
paperwork transferring the property or suggesting that Levins
lied to the Court.

The Third Circuit has held that “[i]n order

to sustain the burden of proving fraud and misrepresentation
under Rule 60(b)(3), the evidence must be clear and convincing.”
Floorgraphics Inc. v. News Am. Mktg. In-Store Servs., Inc., 434
F. App'x 109, 111 (3d Cir. 2011) (citing Brown v. Pennsylvania
Railroad Co., 282 F.2d 522, 527 (3d Cir. 1960)).

Plaintiff has

failed to meet this burden and has failed to support these bare
allegations.
Additionally, Plaintiff requests relief pursuant to “Rule
57” which governs the procedure for obtaining a declaratory
judgment.1

An application under Rule 57 is inappropriate and

1

Federal Rule of Civil Procedure 57 provides: “These rules
govern the procedure for obtaining a declaratory judgment under
28 U.S.C. §2201. Rules 38 and 39 govern a demand for a jury
trial. The existence of another adequate remedy does not
preclude a declaratory judgment that is otherwise appropriate.
The court may order a speedy hearing of a declaratory-judgment
action.”
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misplaced at this stage of the litigation.

If Plaintiff

intended to bring a motion pursuant to Fed. R. Civ. P. 59(e),
the application must be made within 28 days of an entry of
judgment.

See Fed. R. Civ. P. 59(e).

Accordingly, Plaintiff’s

alternative basis for relief will also be denied as untimely.
Additionally, for the same reasons articulated above,
Plaintiff’s request for a new trial will be denied.
Additionally, Plaintiff filed a request for a sign language
interpreter pursuant to Fed. R. Civ. P. 37(b), and accuses
Defendants of committing perjury during depositions.

Again, the

Court finds no clear and convincing evidence of fraud or
perjury.

As Plaintiff’s motion to reopen the case will be

denied, Plaintiff’s request for an interpreter will also be
denied.
III. CONCLUSION
For the reasons set forth above, Plaintiff’s motions will
be denied.

An appropriate Order follows.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey
Dated: July 18, 2016

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