LIGHTHOUSE POINT MARINA & YACHT CLUB, LLC v. INTERNATIONAL MARINE UNDERWRITERS

Filing 35

OPINION. Signed by Judge William H. Walls on 4/30/15. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LIGHTHOUSE POINT MARINA &
YACHT CLUB, LLC,
Plaintiff,

OPINION

V.

Civ. No. 14-2974 (WHW)(CLW)

INTERNATIONAL MARINE
UNDERWRITERS,
Defendant.

WallS. Senior District Judge

In this dispute over insurance coverage for property damage caused by Superstorm
Sandy, the Court imposed sanctions under Fed. R. Civ. P. 11 on Plaintiff Lighthouse Point
Marina & Yacht Club, LLC (“Lighthouse Point”), and its local and out-of-state counsel, for
presenting a claim that lacked evidentiary basis. The Voss Law Firm P.C., Bill L. Voss and Scott
G. Hunziker (the out-of-state attorneys for Plaintiff, collectively “the Voss Firm”), having
retained independent counsel, now move under Local Rule 7.1(i) for reconsideration of the order
imposing sanctions against them. As the Voss Firm contends that the judgment would have been
different were it not for its excusable neglect, the Court also construes the motion as one for
relief from a judgment under Federal Rule of Civil Procedure 60(b).
Audwin Levasseur, local counsel for Plaintiff, separately requests reconsideration of the
Court’s dismissal of the underlying action in November of 2014. ECF Nos. 15-16.

1

NOT FOR PUBLICATION
Defendant Atlantic Specialty Insurance Company (“Atlantic Specialty,” improperly pled
as International Marine Underwriters) requests an award of additional attorneys’ fees, in
accordance with the Court’s Amended Opinion of January 20, 2015.
Decided without oral argument under Fed. R. Civ. P. 78, the Voss Firm’s motion is
denied, Mr. Levasseur’s motion is denied, and Defendant’s request for additional attorneys’ fees
is granted.

FACTUAL AND PROCEDURAL BACKGROUND
Set forth more fully in the Court’s earlier opinion, ECF No. 21, the facts are summarized
briefly here. The amended complaint, filed in New Jersey Superior Court on April 11, 2013 and
removed to this Court on May 9, 2013, alleges that Atlantic Specialty underpaid Lighthouse
Point’s insurance claim after Superstorm Sandy. ECF No. 1-1. The action was filed by Scott G.
Hunziker, Esq. of the Voss Law Firm, P.C. of The Woodlands, Texas, Hunziker Aff. ¶J 2, 4, 6,
ECF No. 23-2; Compl., ECF No. 1-1 at 7. Lighthouse Point had retained the firm in February of
2013. Ex. A to Hunziker Aff., ECF No. 33-1. The Voss Firm engaged Audwin Levasseur, Esq.,
of the firm Harbatkin & Levasseur, P.A., to serve as local counsel. Hunziker Aff. ¶ 6. Both Mr.
Hunziker and Mr. Levasseur signed the complaint. ECF No. 1-1 at 7. The name of Bill L. Voss
was also listed at the top of the complaint and below Mr. Hunziker’s signature. Id. The Voss
Firm then sent Atlantic Specialty a settlement demand, alleging property damage of $540,000,
and attorneys’ fees totaling $135,000. ECF No. 1-1 at 22.
After filing the complaint, the Voss Firm and Mr. Levasseur ignored their responsibilities
in the litigation. They did not respond to Defendant’s discovery requests, in violation of the
Court-ordered case management schedule, the standing discovery order governing Superstorm
Sandy cases in this district, see ECF No. 8, and the terms of the insurance policy. See ECF No.
2

NOT FOR PUBLICATION
13-2. Defendant moved to dismiss the complaint. ECF No. 13. Mr. Levasseur and the Voss Firm
did not respond to the motion. The Court granted the motion and dismissed the complaint. ECF
Nos. 15-16.
In its Answer and motion papers, Defendant alleged that the lawsuit was fraudulent.
AnswerJ 27-29, ECF No. 3; Def.’s Mot. to Dismiss, Def.’s Br. at 4, ECF No. 13. Atlantic
Specialty’s initial inspection after the storm found wind damage to two fences, and “[n]o damage
to any of the 4 buildings.” Antin Decl. MTD

¶ 7,

Ex. C. It valued the claim at $1,612, and

recommended a payment of $612, after applying a $1,000 deductible. Id. Defendant also pointed
out that the Voss Firm and Mr. Levasseur had filed 250 lawsuits in New Jersey courts, almost
identically worded, within a short period of time. See Ct.’s Op. at 1-2, ECF No. 21. Several of
these cases were dismissed for lack of prosecution. Id. at 8.
Having received no information from the Voss firm or Mr. Levasseur to contradict
Defendant’s allegation of fraud, the Court issued an Order to Show Cause on November 13,
2014, instructing Plaintiff to provide some evidentiary basis for its claim. ECF No. 14. The order
warned that failure to satisfactorily respond could subject Plaintiff and its counsel to sanctions
under fed. R. Civ. P. 11. Id. The deadline for Plaintiffs response was December 15, 2014. Id.
The order was entered on the district’s CM/ECF system, and both Mr. Levasseur and the Voss
firm received a copy by certified mail. ECF No. 17-1. They did not respond.
The Court imposed sanctions on January 13, 2015, ECF Nos. 19-20, and amended its
opinion and order on January 20, 2015. ECF Nos. 2 1-22. The Amended Order entered judgment
against Lighthouse Point Marina & Yacht Club LLC, Audwin Levasseur, Bill L. Voss, and Scott
G. Hunziker, jointly and severally, in the amount of $6,224.90, a sum which represents

3

NOT FOR PUBLICATION
Defendants’ court costs and attorneys’ fees to that date. ECF No. 22. It also prohibited Bill L.
Voss from seeking pro hac vice admission before this judge for one year. Id.
The central rationale for sanctions was that Plaintiff had presented no factual basis for the
complaint’s allegation that the insurance payment was inadequate. Ct.’s Op. at 9, ECF No. 21.
Although the Court considered lesser sanctions, it chose to award attorneys’ fees to Defendant
and prohibit the pro hac vice admission of Bill L. Voss because of:
“Plaintiff’s counsel’s apathy when faced with a motion to dismiss, indifference to the
Court’s Order to Show Cause, noncompliance with earlier orders of this Court, disregard
for this district’s Hurricane Sandy Case Management Order, negligence in pursuing their
client’s claim, apparent lack of investigation before and after filing, issuance of a
settlement demand with no factual relation to the case, stonewalling of their adversary’s
attempts to investigate. and the continuing pattern of neglect before other judges in
this district.”
.

.

Id. at 10.
On February 3, 2015, the Voss Firm moved for reconsideration of the sanctions against it
alone, ECF No. 23, through its newly retained independent counsel. See Notice of Appearance
by Michael M. DiCicco, Esq., ECF No. 24; Pl.’s Br. in Supp. of Mot. for Recons. 1, ECF No. 231 (“the Movants [the Voss Law Firm, P.C., Bill L. Voss and Scott G. Hunziker] submit that the
Rule 11 sanctions entered against them should be withdrawn.”). The Voss firm argues that “the
Amended Order if not reconsidered and amended in part will result in manifest injustice because
the underlying conduct on which the sanctions are based constitutes excusable neglect.” Pl.’s Br.
6. In support, the Voss Firm submits two reports from a private claims adjuster, dated April 18,
2013, detailing wind and flood damage to the Lighthouse Point Marina. Exs. A-B to Hunziker
Aff. ECF No. 23-2. The reports state that the adjuster conducted an inspection of the loss,
reviewed photos of damages and obtained verbal representations from the insured. Id., Ex. B at

4

NOT FOR PUBLICATION
2. The adjuster estimated the actual cash value of the wind damage at $131,805.75, Id., Ex. A at
22; and the actual cash value of the flood damage at $70,388.92. Id., Ex. B at 15.
Mr. Hunziker asserts in an affidavit that he “believed that the Harbatkin Firm was acting
responsively to this Court and other Courts,” Id.

¶ 9, and, afler the dismissal of this action,

“believed wholeheartedly that Levasseur would respond to the Order to Show Cause.” Id.

¶ 11.

To demonstrate Mr. Levasseur’s responsiveness and engagement with their joint cases, Mr.
Hunziker submits a series of emails he exchanged with Mr. Levasseur. Mr. Hunziker’s messages
to Mr. Levasseur included the following: “I NEED TO HEAR FROM YOU” (October 15, 2014);
“By the way, can you call [a client]. I have spoken to her a couple of times recently, and she is
not happy about not hearing from you” (October 24, 2014); “When can we finally discuss the
upcoming trials on these matters?” (October 28, 2014). Id., Ex. C. Mr. Levasseur’s responses to
many of the messages, but not all, are included. Id. Mr. Hunziker also includes an email to Mr.
Levasseur from December 22, 2014, attaching Defendant’s counsel’s letter of the same date,
ECF No. 18, stressing that Plaintiffs counsel had not met its deadline to respond to the Order to
Show Cause. Mr. Hunziker wrote, “Please call me on this one ASAP! !“ Id., Ex. D.
Mr. Levasseur filed a declaration with the Court on April 3, 2015, detailing his
relationship with the Voss Firm. Deci. of Audwin Levasseur, ECF No. 34. In the penultimate
paragraph, he “requests that the Court Amend its Order to dismiss Plaintiffs Complaint without
prejudice. The extraordinary circumstances underlying the Plaintiffs case warrant that Plaintiffs
access to the Court should not be permanently barred on account of the sins of its retained
attorneys.” Id.

¶ 62.
STANDARD FOR RECONSIDERATION

5

NOT FOR PUBLICATION
Local Civil Rule 7.1(i) allows a party to move for reconsideration within 14 days afier
entry ofjudgment, and directs the moving party to submit “a brief setting forth the matter or
controlling decisions which the party believes the Judge.

.

.

has overlooked.” L. Civ. R. 7.1(i).

The Third Circuit has held that the “purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered evidence.” Max ‘s Seafood Cafe ex
rel. Lou-Ann v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (citation omitted).
Reconsideration motions may not be used to relitigate old matters, nor to raise arguments
or present evidence that could have been raised before the entry ofjudgment. See Charles A.
Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 2810.1. Such motions will
only be granted where (1) an intervening change in the law has occurred, (2) new evidence not
previously available has emerged, or (3) the need to correct a clear error of law or prevent a
manifest injustice arises. North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir.
1995) (emphasis added).

STANDARD FOR RELIEF FROM A JUDGMENT UNDER RULE 60(B)
The Court also considers the Voss Firm’s request for relief as arising under Rule 60(b).
The rule states, in relevant part, “[o]n motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final judgment, order, or proceeding for
mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). “Due to the
overriding interest in the finality and repose ofjudgments, a Rule 60(b) motion is considered
extraordinary relief which should be granted only where extraordinary justifying circumstances
are present.” Katz v. Twp. of Westfall, 287 Fed. App’x 985, 988 (3d Cir. 200$) (internal
quotations and citations omitted).

6

NOT FOR PUBLICATION
Although other circumstances may be relevant, the Third Circuit has instructed courts to
examine four factors when determining whether neglect was excusable: “(I) the danger of
prejudice to the non-movant; (2) the length of the delay and the impact on judicial proceedings;
(3) the reason for the delay, including whether it was within the reasonable control of the
movant; and (4) whether the movant acted in good faith.” See Ragguette v. Premier Wines &
Spirits, 691 F.3d 315, 319 (3d Cir. 2012) (citing Pioneer mv. Servs. Co. v. BrunswickAssociates
Ltd. P’ship, 507 U.S. 380, 395 (1993)). “These factors, however, do not establish a mathematical
formula; the determination is at bottom an equitable one.” Kanoffv. Better Life Renting Corp.,
350 F. App’x 655, 657 (3d Cir. 2009) (citations omitted). The court continued:
Though no one factor is dispositive, inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute “excusable” neglect. To
summarize, “excusable neglect” describes situations where the court, after
weighing the relevant considerations is satisfied that counsel has exhibited
substantial diligence, professional competence and has acted in good faith to
conform his or her conduct in accordance with the rule, but as the result of some
minor neglect, compliance was not achieved.
Id. (citations omitted).

STANDARD FOR RULE 11 SANCTIONS
An attorney who submits a complaint certifies that there is a reasonable basis in fact and
law for the claims made, to the best of the attorney’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances. Fed. R. Civ. P. 11; see also Napier v. Thirty
or More Unidentified federatAgents, etc., 855 F.2d 1080, 1090 (3d Cir. 1988). The Third
Circuit has instructed that “[t]he legal standard to be applied when evaluating conduct allegedly
violative of Rule 11 is reasonableness under the circumstances.” Ford Motor Co. v. Summit
Motor Products, Inc., 930 F.2d 277, 289 (3d Cir. 1991) (citations omitted), cert. denied, 502 U.S.
939 (1991). Reasonableness in the context of a Rule 11 inquiry has been defined as “an objective
7

NOT FOR PUBLICATION
knowledge or belief at the time of the filing of a challenged paper that the claim was well
grounded in law and fact.” Ford Motor Co., 930 f.2d at 289.
“On its own initiative, the court may enter an order describing the specific conduct that
appears to violate subdivision (b) [of Rule 11] and directing an attorney, law firm, or party to
show cause as to why it has not violated subdivision (b) with respect thereto.” Fed. R. Civ. P.
11(c)(l)(B). In the case of sanctions imposed sua sponte under Rule 11(c)(3), “[t]he party sought
to be sanctioned is entitled to particularized notice including, at a minimum, 1) the fact that Rule
11 sanctions are under consideration, 2) the reasons why sanctions are under consideration, and
3) the form of sanctions under consideration.” Simmerman v. Corino, 27 F.3d 58, 64 (3d Cir.
1994). “A District Court has the authority and, indeed, the duty to examine allegations that an
attorney appearing before the court has violated his moral and ethical responsibility and to
fashion an appropriate remedy, if warranted.” Thomason v. Lehrer, 183 F.R.D. 161, 170 (D.N.J.
1998), aff’d, 189 F.3d 465 (3d Cir.1999) (citations omitted). Courts have broad discretion “to
control the conduct of those who appear before them” with “an arsenal of sanctions they can
impose for unethical behavior.” Id. (citations omitted). “The sanction may include nonmonetary
directives; an order to pay a penalty into court; or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant of part or all of the reasonable
attorneys’ fees and other expenses directly resulting from the violation.” Fed. R. Civ. P. 1 l(c)(4).

DISCUSSION
I.

The Voss Firm’s Neglect Was Not Excusable
To evaluate the Voss Firm’s claim that its failure to timely submit evidence constitutes

“excusable neglect” under Rule 60(b), the Court applies the factors set out in Pioneer.
(1) The Delay Did Not Significantly Prejudice the Defendant

8

NOT FOR PUBLICATION
The Court dismissed the underlying case on the same day it issued the Order to Show
Cause. ECF Nos. 14-16. Because the action against Atlantic Specialty had already been
dismissed at the time the Voss firm missed the deadline to respond to the Order to Show Cause,
and the purpose of the order was to determine the Voss Firm’s compliance with Rule 11, Atlantic
Specialty faced no prejudice from the Voss firm’s delay. If the Court were to vacate sanctions,
the detriment to Atlantic Specialty would consist only in the elimination of its opportunity to
collect its attorneys’ fees from the Voss Firm. This factor weighs in favor of a finding of
excusable neglect.
(2) The Voss Firm Has Delayed Responding to the Court’s Orders Until Now

The Order to Show Cause mandated that the Voss Firm provide a factual basis for the
complaint’s allegations within one month. The deadline passed without response. The firm was
silent for an additional two months after that, despite knowing that the time to respond to the
order had expired. Ex. D to Hunziker Decl. It took two more weeks after the Court had filed an
amended order imposing sanctions, and three weeks after the original sanctions opinion, for the
Voss Firm to submit this motion. Between filing the amended complaint and taking any action in
the litigation (moving for reconsideration), the Voss Firm waited ten months. The Court
dismissed the underlying action because the Voss Firm ignored repeated requests from their
adversary to inspect the property, in violation of the Court-ordered discovery schedule. The
pattern of delay here was extensive, weighing against a finding of excusable neglect.
(3) The Voss Firm Could Have Responded Timely to the Order to Show Cause

The Voss firm’s stated reason for the delay in responding to the Order to Show Cause is
that it “wholeheartedly believed” its local counsel would respond on its behalf. This explanation
lacks credibility.

9

NOT FOR PUBLICATION
first, the Voss Firm attempts to minimize its role in the litigation, stating that Mr.
Levasseur was acting as lead counsel for all jointly filed $uperstorm Sandy-related actions in
New Jersey. Pl.’s Br. 3. The record shows that the Voss Firm was not simply a silent partner to
Mr. Levasseur. The firm commissioned the appraiser’s reports and had these documents in its
possession throughout the litigation, removing any reliance on Mr. Levasseur to send them to the
Court. There is no indication that the reports were ever shared with Mr. Levasseur, leaving
uncertainty as to whether he would have been able to submit them. The Voss Firm also held
itself out as the point of contact for settlement, sending Defendant a $675,000 settlement demand
on its own letterhead.
To the extent that the Voss Firm had turned over day-to-day responsibility for the case to
Mr. Levasseur, the Voss Firm had strong reason to doubt Mr. Levasseur would respond to the
Order to Show Cause. To begin with, he failed to respond to the motion to dismiss in this case.
By that point, he had established a pattern of disregarding cases. As early as June of 2014, judges
in this district began to grant unopposed motions to dismiss actions filed by the Voss Firm and
Mr. Levasseur. Brusco v. Harleysvilte Ins. Co., No. CIV.A. 14-914 JEI/JS, 2014 WL 2916716
(D.N.J. June 26, 2014). By the time this Court issued an Order to Show Cause on November 13,
2014, ECF No. 14, at least five other cases had been dismissed afier a lack of prosecution or
other neglect. See Truglia v. Selective Ins. Co., No. CIV.A. 13-7531 JAP, 2014 WL 5587978
(D.N.J. Oct. 31, 2014); Casteltucci v. Beers, No. CIV.A. 13-6691 JAP, 2014 WL 5449863
(D.N.J. Oct. 27, 2014); Vanore v. Narragansett Bay Ins. Co., No. CIV.A. 14-373 FLW, 2014
WL 4979691 (D.N.J. Oct. 3, 2014); Bruno v. Narragansett Bay Ins. Co., No. CIV.A. 14-382
JAP, 2014 WL 4854607 (D.N.J. Sept. 30, 2014). Mr. Levasseur flouted another judge’s Order to
Show Cause a mere four days afier this Court threatened sanctions. See ECF No. 12, Dringus v.

10

NOT FOR PUBLICATION
NJM Ins. Grp., 13-cv-6693 (JAP/TIB) (D.NJ. 2014) (“Order to Show Cause Hearing held on
11/17/2014 why this matter should not be dismissed with prejudice. Plaintiffs attorney failed to
appear. Report recommending dismissal to be entered.”). The frustrated tone of Mr. Hunziker’s
emails to Mr. Levasseur (“I NEED TO HEAR FROM YOU”) does not produce an impression of
confidence. Most devastating for the Voss Firm’s avowal that it trusted Mr. Levasseur to respond
to the Order to Show Cause, Mr. Hunziker was aware on December 22, 2014 that Mr. Levasseur
had failed to act by the Court’s December

13th

deadline. Ex. D to Hunziker Deci. Knowing this,

the firm remained silent for the next six weeks, during which time the Court imposed sanctions.
At no point did it appear that Mr. Levasseur was deceiving the Voss Firm. Even if Mr.
Levasseur failed to keep the Voss Finn informed about this case himself, the Voss Finn cannot
blame him for its neglect of the communications it received directly from its adversary and the
Court. Defendant’s counsel attempted to contact the Voss Firm to arrange for an inspection of
the property on no fewer than ten occasions, by both telephone and letter, and received no
response. Antin Deci.

¶ 14, ECF No.

13-1. The Voss Firm received the Order to Show Cause of

November 13, 2014 by certified mail. ECF No. 17-1. The order named them personally. Id. They
had been in possession of their appraiser’s reports since April of 2013. Hunziker Aff.

¶ 8. Their

failure to respond to court orders was manifestly unreasonable, weighing heavily against finding
their neglect excusable.
(4) It Is Unclear Whether the Voss Firm Acted in Good Faith

Black’s Law Dictionary defines “good faith” as “[b]ehaving honestly and frankly,
without any intent to defraud or to seek an unconscionable advantage.” Black’s Law Dictionary
(10th ed. 2014). Whether the Voss Finn acted in good faith here is uncertain. The failure of the
Voss Firm and Mr. Levasseur to prosecute this action is not a one-time instance of administrative

11

NOT FOR PUBLICATION
error or casual oversight; their neglect has been ongoing and pervasive in this district. In the
months following this Court’s Order to Show Cause, the Voss Firm and Mr. Levasseur failed to
respond to dispositive motions in multiple other cases. See Melillo v. Selective Ins. Co., No.
CIV.A. 13-7542 FLW, 2015 WL 716646 (D.N.J. Feb. 19, 2015); Hobson v. Am. Bankers Ins, of
Florida, No. CIV.A. 14-948 MLC, 2015 WL 668700 (D.N.J. Feb. 17, 2015); Golden v. Beers,
No. CIV. 14-1468 NLH/KMW, 2015 WL 273649, at *1 n.2 (D.N.J. Jan. 21, 2015) (collecting
cases where the Voss Firm and Mr. Levasseur failed to comply with court orders or otherwise
prosecute actions); Fun Iii $ongv. BankofAm., N.A., No. CIV. 2:14-3204 WJM, 2015 WL
248436 (D.N.J. Jan. 20, 2015). The weakness of Mr. Hunziker’s excuse that he trusted Mr.
Levasseur to respond, even after repeated and obvious instances of disregard, raises doubts as to
the Voss Firm’s good faith. This factor does not support the Voss Firm’s motion.
The Pioneer factors Weigh Against Finding that the Voss Firm’s Neglect was Excusable

The Voss Firm’s counsel concedes that “[t]he Movants seek to explain their conduct, not
excuse it.” Pl.’s Br. 8. The Court agrees: the explanation for the neglect does not excuse it.
Although prejudice to the Defendant is modest, the Voss Firm’s history of delay, its indifference
to court orders throughout the district, and above all, the meritless nature of its excuse for the
prolonged inattention, make relief under Rule 60(b) unavailable.

II.

Sanctions Against the Voss Firm Are Not Manifestly Unjust
The Voss Firm also argues that if the Court does not reverse its sanctions decision based

on newly presented evidence, a manifest injustice arises.
“Manifest injustice” is not well-defined in case law. See Oneida Indian Nation ofNew
York v. Cnty. of Oneida, 214 F.R.D. 83, 99 (N.D.N.Y. 2003). More definite is the rule that,
“[w]here evidence is not newly discovered, a party may not submit that evidence in support of a
12

NOT FOR PUBLICATION
motion for reconsideration.” Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985); see
also Gibson v. Mueller, No. CIV. 09-6486-NLH-JS, 2012 WL 1079128, at *12 (D.N.J. Mar. 29,
2012) (“[t]here is a strong policy against entertaining reconsideration motions based on evidence
that was readily available at the time that the original motion was heard.”) (internal citations
omitted). “The court will not, at a late date, consider evidence, which could and should have
been submitted earlier. The court is bound not to consider such new materials, lest the strictures
of the reconsideration rule erode entirely.” Damiano v. Sony Music Entertainment, 975 F. $upp.
623, 635 (D.N.J. 1997); see also Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d
237, 25 1-52 (3d Cir. 2010) (affirming the denial of a motion for reconsideration when “[t]he
stated aim of the Plaintiffs’ motion was to submit the very evidence the District Court had found
they had failed to present in their [original] motion.”).
The rule against considering previously available evidence has limited flexibility.
Although “courts often take a dim view of issues raised for the first time in post-judgment
motions,” the Third Circuit has held that when evidence is “so fundamental” to the disposition of
the issue, then it is “not consistent with the wise exercise of discretion for the District Court to
[decline] even to consider it” as proof of manifest injustice. Max’s Seafood Cafe, 176 F.3d at
678. The Max’s Seafood Cafe court found manifest injustice in a district court’s refusal to
consider newly introduced evidence when, in light of a party’s reasonable belief that the
opposition’s argument lacked merit, the party did not introduce contrary evidence at the time of
the original motion. Id. In other words, the moving party demonstrated that (1) the newly
presented evidence was dispositive, and (2) the party’s failure to timely present available
evidence was reasonable under the circumstances. See Id. (“[i]n the circumstances of this case, it

13

NOT FOR PUBLICATION
is not surprising that [the movant] did not produce [the additional evidence] at the [original]
hearing.”).
Max Seafood Cafe differs from another Third Circuit case, DeLong Corp.

V.

Raymond

Int’l, Inc., where the movant failed to timely present facts contradictory to the court’s decision,
and this failure was unreasonable:
“[The moving party] does not assert that the evidentiary material which it later
sought to introduce on the motion for reargument was unavailable or unknown to
it at the time of the original hearing. Nor does such reason appear in the record...
If these affidavits and exhibits were to be advanced to meet the motion they
should have been advanced then. If time were needed to gather and present them,
an adjournment should have been requested. It is important to observe that these
affidavits and exhibits were in the possession of [plaintiff] or available to it
without seeking discovery from [defendant].”
622 F.3 d 1135, 1140 (3d Cir. 1980) (internal citation omitted), overruled on other grounds
by Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 1981) (en banc).
Here the Voss firm does not argue that the Court erred in imposing sanctions under Rule
11 based on the record at the time. It does not contest that there had been no evidentiary support
for the factual contentions of the complaint, despite the Court’s order to produce such evidence
by a certain date under penalty of specific sanctions. See ECF No. 21. Instead, the Voss Firm
now submits documents to provide the factual basis the Court had requested. The appraiser’s
reports suggest that Lighthouse Point suffered more damage during Superstorm Sandy than the
S 1,612 its insurer adjusted for damage to a fence. Compare Exs. A-B to Hunziker Aff. with
Antin Deci. in $upp. of Mot. to Dismiss ¶ 8. Defendant has not challenged the reports’
authenticity. See Def.’s Mem. in Opp. to Mot. for Recons., ECF No. 27.
The exhibits provide some support for the complaint’s factual allegations. But the
question remains: why did the Voss firm withhold the documents until now? Considering the
general rule against untimely submissions, and the rarity of granting a motion for
14

NOT FOR PUBLICATION
reconsideration, the Court cannot find manifest injustice when the failure to timely submit
evidence that the Voss firm possessed throughout the litigation was inexcusable. The lack of a
reasonable basis for failing to produce the evidence in a timely fashion, especially in spite of an
Order to Show Cause, distinguishes this case from Max ‘s Seafood Cafe, and makes it more akin
to DeLong. Finding “manifest injustice” in Max ‘s Seafood Cafe, the Third Circuit opined that the
prior omission of dispositive evidence was “not surprising” under the circumstances. 176 f.3d at
67$. No such circumstances are present here.
“The court must keep in mind that the primary objective of any sanction is to preserve the
integrity of the process, rather than to punish the offender.” Mruz v. Caring, Inc., 166 F. Supp.
2d 61, 6$ (D.N.J. 2001). Under these circumstances, with a meritless excuse from the Voss Firm
as to why it ignored the litigation for so long, combined with its inattention to multiple other
cases in the district, the sanctions on the Voss Firm continue to serve a valid objective:
encouraging the diligence which attorneys owe to the courts, their adversaries and their clients.
In its earlier opinion, the Court explained the rationale for barring Bill L. Voss from
applying forpro hac vice status before this judge. ECF No. 21. Afler learning that Scott G.
Hunziker is not admitted to practice before this Court, see Hunziker Aff. ¶ 2, the Court will
amend its previous order to prohibit Mr. Hunziker from applying for pro hac vice admission
before this judge for one year from the date of this opinion. Mr. Levasseur is likewise prohibited
from appearing before this judge on matters filed within one year of the date of this opinion.

III.

Mr. Levasseur’s Motion for Reconsideration Is Denied

The Court considers Mr. Levasseur’s request to reconsider its dismissal of the complaint
under both Local Rule 7.1(i) and Rule 60(b). Local Rule 7.1(i) requires a motion for

15

NOT FOR PUBLICATION
reconsideration to be filed within 14 days; Mr. Levasseur makes this request nearly five months
after dismissal. Local Rule 7.1(i) cannot provide relief here.
Mr. Levasseur’s request for relief under Rule 60(b) is also unavailing. Nothing in Mr.
Levasseur’s submissions demonstrates mistake, inadvertence, surprise, or excusable neglect.
Allowing Lighthouse Point to reopen the case would create a significant possibility of prejudice
to the Defendant: two-and-a-half years have passed since the property was allegedly damaged,
making investigation more difficult. Mr. Levasseur’s request, unaccompanied by any citation to
case law, comes almost five months after dismissal and more than ten weeks after sanctions were
imposed, a delay that has no explanation apart from counsel’s inattention. The pattern of neglect
that made the Court doubt the Voss firm’s good faith is no less attributable to Mr. Levasseur,
who signed the complaint and was at all relevant times counsel of record in this matter.
Mr. Levasseur’s argument that his client’s action “should not be pennanently barred on
account of the sins of its retained attorneys” is contrary to Supreme Court precedent. On several
occasions, the Supreme Court has “held that clients must be held accountable for the acts and
omissions of their attorneys.” See Pioneer, 507 U.S. at 396. It reasoned that a party
voluntarily chose this attorney as [its] representative in the action, and. cannot
now avoid the consequences of the acts or omissions of this freely selected agent.
Any other notion would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of his lawyer-agent
and is considered to have notice of all facts, notice of which can be charged upon
the attorney.
.

.

Id. at 397. following this reasoning, the Court held that a client could be penalized for counsel’s
late filing of a tax return, US. v. Boyle, 469 U.S. 241 (1985), and that a client would have to
suffer the consequences of dismissal of its lawsuit because of its attorney’s failure to attend a
pretrial conference. Link

Wabash R. Co., 370 U.S. 626 (1962). An order of dismissal is an

appropriate consequence of Plaintiff’s attorneys’ lack of diligence. See id.; Poulis v. State farm
16

NOT FOR PUBLICATION
Fire & Casualty Co., 747 F.2d 863, 868 (3d Cir. 1984). Lighthouse Point must suffer this
consequence.

IV.

Judgment against Lighthouse Point Is Vacated

A court may reconsider its prior decisions sua sponte so long as it explains the reasoning
behind its decision and takes the appropriate steps to ensure that the parties are not prejudiced by
reliance on its prior ruling. See DeFranco v. Wolfe, 387 F. App’x 147, 155-56 (3d Cir.
2010) (applying Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997)).
The consequences to a party from attorney negligence that the Supreme Court addressed
in Pioneer, Boyle and Link did not include sanctions. The Court is aware of no authority that
requires a client to bear the brunt of a sanctions award when the sanctionable conduct is the
attorney’s alone. Presented now with a more detailed record than when it made its initial
sanctions ruling, the Court is aware of no evidence suggesting that the Voss Firm ever gave
Lighthouse Point an opportunity to review the pleading, informed it that the case had been
dismissed, or warned that an order threatening sanctions was pending. The appraisal reports
suggest that Lighthouse Point had a colorable basis for contesting its insurance payment. Given
the lack of information communicated to Lighthouse Point by its attorneys, the colorable factual
basis for the complaint, and the ability of the attorneys to timely submit the appraisal reports on
their own, Lighthouse Point is so distant from the sanctionable conduct that holding it
responsible would be manifestly unjust. The judgment against Lighthouse Point is vacated.

V.

Defendant’s Request for Additional Attorneys’ Fees Is Granted
Defendant requests additional attorneys’ fees, in accordance with the Court’s Amended

Opinion of January 20, 2015. Ct.’s Op. at 10, ECF No. 21 (“tw]ithin 30 days, Defendant shall
17

NOT FOR PUBLICATION
make application to the Court for any fees associated with this motion, and any other litigation
expenses not already submitted”); see Decl. of Mark Antin, ECF No. 25. Defendant’s counsel
has provided satisfactory proof of an additional $676.08 in fees; Defendant’s request is granted.
The judgment against the Voss Firm and Mr. Levasseur now totals $6,901.70.

CONCLUSION
The Voss Firm’s motion is denied. Mr. Levasseur’s motion is denied. Judgment against
Lighthouse Point is vacated. Defendant’s request for additional attorneys’ fees is granted. An
appropriate order follows.

DATE:

j0
Williath Ii. Walls
Senior United States District Court Judge

1$