LINBLAD v. HARLEYSVILLE INSURANCE COMPANY

Filing 43

OPINION. Signed by Judge Noel L. Hillman on 2/16/2016. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
EMMA LINBALD,
Plaintiff,

Civil No. 14-908 (NLH/KMW)

v.
NATIONWIDE MUTUAL INSURANCE
COMPANY,

OPINION

Defendant.
__________________________________
APPEARANCES:
Audwin F. Levasseur
The Law Offices of Harbatkin & Levasseur, PA
616 E. Palisade Ave
Suite 102
Englewood Cliffs, NJ 07024
Attorney for Plaintiff
Daniel W. Ballard
Claims Worldwide, LLC
1240 Old York Road
Suite 101
Warminster, PA 18974
Attorney for Plaintiff
Catherine S. Straggas
Margolis Edelstein
The Curtis Center
Suite 400E
170 S. Independence Mall West
Philadelphia, PA 19106
Attorney for Defendant
HILLMAN, District Judge:
This matter comes before the Court by way of Plaintiff’s
motion to set aside judgment pursuant to Fed. R. Civ. P.

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60(b)(6) based on the alleged neglectful representation by her
former counsel in Superstorm Sandy related litigation.

The

Court has considered the parties’ submissions, and decides this
matter pursuant to Federal Rule of Civil Procedure 78.

For the

reasons that follow, Plaintiff’s motion will be denied without
prejudice.

I.

BACKGROUND
According to the allegations in the complaint, Plaintiff

Emma Linbald purchased a Standard Flood Insurance Policy
(“SFIP”), policy number 99050775302012, for her residential
property located at 9 North Sacramento Avenue, Ventnor, New
Jersey.

(Compl. ¶ 5.)

Nationwide issued the policy in

accordance with the National Flood Insurance Program (“NFIP”).
(Id.)

Plaintiff avers that she paid “all related premiums in a

timely fashion.”

(Id. ¶ 6.)

On October 29, 2012, within the

policy period, Superstorm Sandy struck Ventnor, New Jersey,
purportedly causing catastrophic damage to her property.
¶¶ 5, 6.)

(Id.

Plaintiff made a claim for damages, but contends

Nationwide did not appropriately adjust and pay the claim. (Id.
¶¶ 7, 11.)
On February 12, 2014, Plaintiff filed a two-count complaint
alleging breach of contract, one pursuant to New Jersey state
law and one pursuant to the National Flood Insurance Act of

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1968, 42 U.S.C. §§ 4001-4129 (hereafter, “NFIA”), against
Nationwide.

Nationwide moved to dismiss both claims as barred

by the statute of limitations and sought to strike Plaintiff’s
prayer for consequential damages and attorney’s fees.

Plaintiff

did not file a response to this motion.
In its December 4, 2014 Opinion and Order, the Court
granted Nationwide’s motion to dismiss Plaintiff’s state-law
claim for breach of contract and to strike Plaintiff’s prayer
for consequential damages and attorney’s fees in connection with
her claim under the NFIA.

The Court denied Nationwide’s motion

insofar as it sought dismissal of Plaintiff’s claim under the
NFIA as time-barred, without prejudice to Nationwide’s right to
later address this issue.

Following the Court’s decision,

Nationwide filed an Answer to Plaintiff’s remaining breach of
contract claim on December 18, 2014 [Doc. No. 32].
On February 9, 2015, Nationwide’s counsel wrote to
Magistrate Judge Karen M. Williams to advise that Plaintiff
failed to submit the supplemental Proof of Loss which Nationwide
asserts is necessary for Plaintiff to maintain her suit.
Nationwide further advised the Court that Plaintiff failed to
exchange automatic disclosures pursuant to the Hurricane Sandy
Case Management Order [Doc. No. 33].

Nationwide also noted that

it attempted to contact Plaintiff’s counsel by letter and phone
but received no response.
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Judge Williams held a telephone status conference on
February 13, 2015.

A week later, Plaintiff’s counsel executed a

stipulation of dismissal with prejudice and the case was
terminated on February 23, 2015.

Five months later, with new

counsel, Plaintiff filed the instant motion to set aside
judgment.

In her motion, Plaintiff argues that she was “unaware

of and did not approve of [the dismissal].”

(Reply. Br. at 5

[Doc. No. 42].)
II.

JURISDICTION
The Court has subject matter jurisdiction over Plaintiff’s

breach of contract claims pursuant to 42 U.S.C. § 4072, as well
as 28 U.S.C. § 1331, because the controversy arises under the
laws of the United States, including the NFIA.

Van Holt v.

Liberty Mut. Fire Ins. Co., 163 F.3d 161, 167 (3d Cir. 1998)
(holding that “42 U.S.C. § 4072 vests district courts with
original exclusive jurisdiction over suits by claimants against
[Write Your Own insurance] companies based on partial or total
disallowance of claims for insurance arising out of the National
Flood Insurance Act.”).
III. LEGAL STANDARD
Plaintiff seeks relief from an order dismissing the case
with prejudice pursuant to Fed. R. Civ. P. 60(b)(6), the Rule’s
“catch-all” provision.

Fed. R. Civ. P. 60(b) provides:

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(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:
...
(6) any other reason that justifies relief.
Id.
“[T]he Rule 60(b)(6) ground for relief from judgment
provides for extraordinary relief and may only be invoked upon a
showing of exceptional circumstances.”

In re Fine Paper

Antitrust Litig., 840 F.2d 188 (3d Cir. 1988) (quotation
omitted).

A showing of extraordinary circumstances involves

demonstrating that without relief from the judgment, “an
‘extreme’ and ‘unexpected’ hardship will result.”

Budget

Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (citing
Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)).
“[E]xtraordinary circumstances rarely exist when a party seeks
relief from a judgment that resulted from the party’s deliberate
choices.”

Budget Blinds, 536 F.3d at 255.

Plaintiff, as the party seeking relief from final judgment,
bears the burden of establishing entitlement to such relief.
Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014) cert. denied sub
nom. Wetzel v. Cox, 135 S. Ct. 1548, 191 L. Ed. 2d 663 (2015).
Additionally, a motion for relief from a final judgment must be
made within a reasonable time.

Fed. R. Civ. P. 60(c)(1).
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Accordingly, to be successful on this motion, Plaintiff must
demonstrate that the motion was timely filed, an extreme and
unexpected hardship will result if the judgment is not vacated,
and the motion is based on extraordinary circumstances.
IV.

DISCUSSION
Plaintiff argues that judgment should be vacated because

the ineffective assistance of her former counsel left her
virtually unrepresented.

According to Plaintiff, the Texas-

based Voss Law Firm “aggressively marketed” to Superstorm Sandy
victims including Plaintiff.

(Mot. at ¶ 5.)

As a result, the

Voss Law Firm was retained by hundreds of people in New Jersey
and associated itself with Harbatkin & Levasseur, PA as local
counsel.

(Mot. at ¶ 6-7.)

Plaintiff contends that hundreds of

lawsuits filed by the Voss Law Firm and Harbatkin & Levasseur PA
have been dismissed on procedural grounds such as failing to
serve complaints, failing to prosecute claims, and failing to
answer discovery.

(Mot. ¶ 8.)

At least one court in this

district imposed sanctions on the Voss Law Firm and Mr.
Levasseur of Harbatkin & Levasseur, PA for their neglectful
representation in a Sandy lawsuit.

See Lighthouse Point Marina

& Yacht Club, LLC v. Int'l Marine Underwriters, No. 14-2974,
2015 WL 1969360 (D.N.J. May 1, 2015).
As an initial matter, the Court finds Plaintiff’s Rule
60(b)(6) motion was timely filed.
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A motion for relief from a

final judgment must be made within a reasonable time.
Civ. P. 60(c)(1).

Fed. R.

Plaintiff’s motion comes five months after

judgment was entered.

Plaintiff has proffered a sufficient

explanation for this delay.

Plaintiff’s new counsel asserts

that it obtained approximately 150 files from the Voss Law Firm
consisting of tens of thousands of files, in no rational order,
many of which were mislabeled and combined information from
multiple cases.

(Reply at 3.)

Plaintiff’s new counsel asserts

that it took months to reorganize the files and determine the
appropriate course of conduct to take.

Id.; cf., Moolenaar v.

Gov't of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987)
(holding that a motion brought under Rule 60(b)(6) two years
after the district court’s judgment was untimely where “the
reason for the attack upon that judgment was available for
attack upon the original judgment”).

The Court finds that given

the factual background of this case, Plaintiff’s motion was
filed within a reasonable period of time.
The Court also finds that Plaintiff has met her burden of
showing that if relief is not granted she will suffer an extreme
and unexpected hardship.

Boughner, 572 F.2d at 978 (the entry

of summary judgments which precluded an adjudication on the
merits of the appellants' claims for benefits constituted an
“extreme and unexpected hardship”).

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Plaintiff maintains the

case cannot be refiled because it was dismissed with prejudice
and due to the expiration of the statute of limitations.
At this time, however, the Court has insufficient evidence
from which to determine whether extraordinary circumstances
exist which warrant relief from judgment.

While “extraordinary

circumstances rarely exist when a party seeks relief from a
judgment that resulted from the party’s deliberate choices,” it
is not clear to the Court whether Plaintiff made a deliberate
choice or whether Plaintiff’s counsel had her case dismissed
without her approval or knowledge.
255.

Budget Blinds, 536 F.3d at

It is also unclear when and how Plaintiff learned the case

was dismissed.

In her brief, Plaintiff states that she was

“unaware of and did not approve of [the dismissal].”
Br. at 5.)

(Reply.

However, Plaintiff has not submitted an affidavit or

any other evidence from which to conclude that her former
counsel acted without authority.
The Court notes that in a recent case in this district, the
Honorable William H. Walls, S.U.S.D.J., held that a SFIP insured
should not be excused from a dismissal because of the conduct of
the Voss Law Firm and Mr. Levasseur.

In Lighthouse Point Marina

& Yacht Club, LLC v. Int'l Marine Underwriters, 14-2974, 2015 WL
1969360 (D.N.J. May 1, 2015), the Voss Law Firm and Mr.
Levasseur, representing a Sandy plaintiff, failed to respond to
the defendant’s motion to dismiss which resulted in the
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dismissal of the complaint.

Since the defendant asserted the

lawsuit was fraudulent, the court issued an order to show cause
to which the Voss Law Firm and Mr. Levasseur again failed to
respond.

As a result, the court entered judgment against the

plaintiff, the Voss Law firm, and Mr. Levasseur, jointly and
severally.

Judge Walls also prohibited Bill L. Voss of the Voss

Law Firm from seeking pro hac vice admission before him for one
year.

Mr. Levasseur moved to set aside the dismissal pursuant

to Fed. R. Civ. P. 60(b).

Judge Walls denied the motion,

reasoning that the plaintiff must suffer the consequences of its
counsel’s inadequate representation.
What distinguishes Lighthouse from the instant case is that
Plaintiff may be able to demonstrate that her former counsel’s
conduct was “so gross that it is inexcusable.”

Boughner v.

Sec'y of Health, Ed. & Welfare, U. S., 572 F.2d 976, 978 (3d
Cir. 1978).

In Boughner, the Third Circuit found that an

attorney’s conduct can create an exceptional circumstance under
Rule 60(b)(6).

The court vacated a summary judgment decision

based on the plaintiff’s attorney’s egregious conduct in failing
to file responsive motions in 52 cases.
976.

Boughner, 572 F.2d at

The Third Circuit held that, “[t]o permit these judgments

to stand, in light of Krehel's conduct and the absence of
neglect by the parties, would be unjust.”

Boughner, 572 F.2d at

979; see also Carter v. Albert Einstein Med. Ctr., 804 F.2d 805,
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808 (3d Cir. 1986) (reinstating complaint where dismissal was
caused by an attorney’s sanctionable negligence, noting “we do
not favor dismissal of a case when the attorney's delinquencies
- not the client's - necessitate sanctions.”).
Similarly here, Plaintiff argues in her brief that she was
unaware of and did not approve the joint stipulation which
resulted in the dismissal of her case.

Plaintiff also

highlights that like the plaintiff’s attorney in Boughner, many
cases in this district involving her former counsel have been
dismissed for non-diligent representation.

See Lighthouse Point

Marina & Yacht Club, LLC v. Int'l Marine Underwriters, No. 142974, 2015 WL 260891, at *4 (D.N.J. Jan. 20, 2015)
reconsideration denied, 2015 WL 1969360 (D.N.J. May 1, 2015)
(citing cases).
However, to meet her burden of proving that such
extraordinary relief is warranted, Plaintiff must provide the
Court with an affidavit or other evidence concerning her alleged
ignorance of the filing of the joint stipulation.

Plaintiff

must also demonstrate that she has a meritorious claim.

Opening

this matter only to dismiss a less than colorable claim would
not only be an act of futility but also work an injustice on the
defendant who asserted various defenses before the voluntary
dismissal in this matter and would have to repeat that costly
process.

Accordingly, Plaintiff must demonstrate her ability to
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comply with Nationwide’s previous discovery requests and submit
all information necessary to maintain her suit including proof
that all prerequisites to suit have been met.
V.

CONCLUSION
Plaintiff’s motion to set aside judgment pursuant to Fed.

R. Civ. P. 60(b)(6) will be denied without prejudice.
consistent with this Opinion will be entered.

An Order

Plaintiff may

renew her motion consistent with the directions above within
forty five (45) days of entry of this Opinion and accompanying
Order.

___s/ Noel L. Hillman_______
NOEL L. HILLMAN, U.S.D.J.

Dated: February 16, 2016
At Camden, New Jersey

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