COSTELLO et al v. LIBERTY MUTUAL INSURANCE
OPINION. Signed by Judge Robert B. Kugler on 9/19/2017. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN V. COSTELLO, PAULINE W.
COSTELLO, and the PAULINE W.
COSTELLO TRUST, dated 5/13/1988,
LIBERTY MUTUAL INSURANCE
KUGLER, United States District Judge:
This matter arises upon Plaintiffs John V. Costello, Pauline W. Costello, and the Pauline
W. Costello Trust’s (“Plaintiffs”) motion to sever and reinstate claims against Defendant Liberty
Mutual Insurance (“Defendant”). For the reasons discussed below, Plaintiffs’ motion is
On or about March 24, 2014, Plaintiffs commenced suit against Liberty Mutual Insurance
in the Superior Court of New Jersey, Law Division, Ocean County. Defendant removed this case
to the District Court of New Jersey on May 19, 2014 (Civil Action 1:14-cv-03208). On
October 7, 2014, Plaintiffs filed suit against Liberty Mutual Fire Insurance Company (Civil
Action 1:14-cv-06203). Pursuant to Federal Rule of Civil Procedure 42(a) and in the interest of
efficiency, these cases were consolidated into case number 1:14-cv-03208 on February 5, 2015.
See Doc. No. 16. Case Number 1:14-cv-06203 was terminated on February 5, 2013, consistent
with the order to consolidate.
The consolidated case was then ultimately terminated on June 9, 2015 after the parties
reported it to the Court as tentatively settled. See Doc. No. 21. The order included a right to
reopen the case within 60 days of entry of the order, and on August 13, 2015, another order
extended that right to a total of 120 days. See Id.; Doc. No. 22. On March 28, 2017, Plaintiffs
filed this motion to sever the consolidated cases and reinstate the case against Liberty Mutual
Insurance. See Pl. Br.
Rule 60(b)1 of the Federal Rules of Civil Procedure provides that the Court may “relieve
a party or its legal representative from a final judgment, order, or proceeding for the following
(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 is vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.”
Rule 60(c)(1) states, “[a] motion under Rule 60(b) must be made within a reasonable time—and
for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the
Plaintiffs focus their brief and argument on New Jersey Local Civil Rule 41.1(a)—they frame
the case as one previously dismissed for lack of prosecution. See Pl. Br. at 6-7. Plaintiffs are
incorrect. This matter was dismissed pursuant to Judge Simandle’s June 9, 2015 order because
the case was “tentatively settled,” not unprosecuted. See Doc. No. 21. Thus, Local Rule 41.1 is
inapplicable, and Rule 60 is the relevant legal standard. Fed. R. Civ. P.
date of the proceeding.” See also Pioneer Inv. Servs. V. Brunswick Assoc. Ltd. P’ship, 507 U.S.
380, 393 (“a party who failed to take timely action due to excusable neglect may not seek relief
more than a year after the judgment by resorting to subsection (6)”). Furthermore, “[t]he remedy
provided by Rule 60(b) is extraordinary, and special circumstances must justify granting relief
under it.” Moolenaar v. Gov’t of Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987) (citations
omitted); see Plisco v. Union R. Co., 379 F.2d 15, 17 (3d Cir. 1967).
Plaintiffs argue that, under New Jersey Local Civil Rule 41.1(a), they are entitled to
relief. 41.1(a) is inapplicable, though, for the reasons set forth in footnote 1—namely that the
case was dismissed as settled and not for a failure to prosecute. Instead, Plaintiffs really seek
relief from an order for dismissal. See Doc. No. 21. As such, the applicable rule is Rule 60(b).
Plaintiffs filed for relief from the order for dismissal one year and nine months after it
was entered, and one year and five months after their right to reopen expired. See Doc. No. 21;
Doc. No. 22. A motion under Rule 60(b)(1)—the only category that this case might otherwise
fall under as Plaintiffs have offered no evidence that Rules 60(b)(2)-(6) apply—must be made
“no more than a year after the entry of the judgment or order.” Fed. R. Civ. P. 60(c)(1). As such,
any remedy is barred by law and Plaintiffs’ motion must be denied as untimely.
For the reasons set forth above, Plaintiffs’ motion to sever and reinstate is DENIED.
s/Robert B. Kugler_____
ROBERT B. KUGLER
United States District Judge
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