Testa et al v. Hoban et al

Filing 82

OPINION filed. Signed by Judge Freda L. Wolfson on 11/6/2018. (mps)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
ANTHONY J. TESTA,
:
:
Plaintiff,
:
:
Civil Action No. 17-1618 (FLW) (DEA)
v.
:
:
JACK HOBAN, et. al.,
:
OPINION
:
:
Defendants.
:
____________________________________:
WOLFSON, United States District Judge:
Before this Court are two Motions for Relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b) filed by pro se Plaintiff Anthony J. Testa’s (“Testa”) as Executor for the
Estate of Rose Marie A. Testa.1 (ECF Nos. 70, 71.) Defendants Jack Hoban (“Hoban”), Joseph
Achacoso (“Achacoso”), numerous federal agencies (“Federal Defendants”), the police
departments and mayors of several New Jersey municipalities (“Municipal Defendants”), and
several insurance companies (collectively, “Defendants”)2 oppose the motions. (ECF Nos. 72, 73,

The Court uses “Testa” to refer to him both in his capacity as Executor and as an individual
insofar as he is personally involved in allegations in the Complaint.
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Plaintiff brings claims against Hoban; Achacoso; the Federal Bureau of Investigations (“FBI”);
the Department of Justice (“DOJ”); the United States Secret Service (“USSS”); the Department of
Homeland Security (“DHS”); the Central Intelligence Agency (“CIA”); the National Security
Agency (“NSA”); the Township of Union Police Department (“Union PD”) and Mayor Manuel
Figuieredo (collectively, “Union Defendants”); the Toms River Police Department (“Toms River
PD”) and Mayor Thomas Kelaher (collectively, “Toms River Defendants”); the City of Newark
Police Department and Mayor Ras Baraka (“Newark Defendants”); the Township of Colts Neck
Police Department (“Colts Neck PD”) and Mayor Thomas Orgo (collectively, “Colt Neck
Defendants”); the Kenilworth Police Department (“Kenilworth PD”) and Mayor Anthony DeLuca
(collectively, “Kenilworth Defendants”); the City of Atlantic City Police Department and Mayor
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74, 75, 76, 77, 78.) Pursuant to Federal Rule of Civil Procedure 78(a), the Court did not hear oral
arguments. For the reasons set forth below, Testa’s Motions for Relief are DENIED.
Background
The underlying facts and procedural background are set forth at length in the Honorable
Brian R. Martinotti’s January 30, 2018 Opinion (ECF No. 64) and February 20, 2018
Memorandum Opinion (ECF No. 68), from which Testa seeks relief from judgment.3 In the interest
of judicial economy, the Court refers the parties to these Opinions for a full recitation of the factual
background of this dispute.4
In summary, the case arises out of Testa’s allegations of a conspiracy by Defendants to
murder his mother, cover up the crime, and obstruct his efforts to investigate his mother’s death

Donald A. Guardian (“Atlantic City Defendants”); the Township of Woodbridge Police
Department and Mayor John McCormac (“Woodbridge Defendants”); the Township of Wall
Police Department and Mayor Ann Marie Conte (“Wall Defendants”); the Borough of Point
Pleasant Beach Police Department (“Point Pleasant Defendants”); the Township of Bernards
Police Department (“Bernards PD”) and Mayor John Carpenter (collectively, “Bernards
Defendants”); the Spring Lake Police Department and Mayor Jennifer Naughton (“Spring Lake
Defendants”); the Township of Manchester Police Department (“Manchester PD”) and Mayor Ken
Palmer (collectively, “Manchester Defendants”); Prudential Insurance Company of America,
Pruco Life Insurance Company of New Jersey, Prudential Annuities, Inc. (improperly pled as
“Prudential Annuities”), Prudential Annuities Life Assurance Corporation (improperly pled as
Prudential Annuities Life Insurance Corporation), Prudential Legacy Insurance Company of New
Jersey, and Prudential Financial, Inc. (collectively, “Prudential Defendants”); MetLife, Inc.,
Metropolitan Life Insurance Company, MetLife Insurance Company USA, and Metropolitan
General Insurance Company (collectively, “MetLife Defendants”; jointly with Prudential
Defendants, “Insurance Defendants”); the Treasurer of the State of New Jersey; and Doe
defendants, “Doe ‘Arrogant Bastard Ale’” and “Doe ‘The Last Straw.’”
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This case was reassigned from Judge Martinotti to me on May 14, 2018 (ECF No. 79).

As noted in Judge Martinotti’s January 30, 2018 Opinion, Testa previously brought a very similar
lawsuit before me, Testa v. Hoban, 16-CV-0055 (“Testa I”). On September 14, 2016, I granted
eleven motions to dismiss filed by all defendants in that case other than Hoban, and denied a
motion to intervene on behalf of the Estate. (Testa I, ECF No. 114.) On December 6, 2016, Testa
I was reassigned to Judge Martinotti. (ECF No. 135.) On May 30, 2017, Judge Martinotti denied
Testa’s motion to reconsider my decision in Testa I. (Testa I, ECF No. 152.)
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and go about his daily life. (Compl. (ECF No. 1) at 3.) Additionally, Testa alleges Defendants used
various surveillance techniques to interfere with his effort to uncover the conspiracy, as well as
harass and intimidate him. (Id.) In his Complaint, Testa’s requests for relief included: (1) various
findings against Defendants for negligence, fraud, tortious interference with his relationship with
his mother, obstruction of justice, and harassment; (2) an order from this Court to compel “a law
enforcement agency competent for the task that can demonstrate to the Court that it does not have
a conflict of interest” to “process the scene” at his mother’s former residence; and (3) sanctions in
the event Defendants had staged his mother’s death by presenting Testa with a corpse of an
unknown person. (Id. ¶¶ 858-69.)
In response, the Insurance Defendants, Point Pleasant Defendants, Manchester Defendants,
Kenilworth Defendants, and Bernards Defendants filed five separate motions to dismiss (ECF Nos.
28, 41, 42, 52, 56) and the Union Defendants filed a motion for judgment on the pleadings (ECF
No. 38). Testa opposed the Insurance Defendants’ motion to dismiss but requested, and was
granted, several extensions to respond to the other motions. (ECF Nos. 31, 35, 39, 43, 44, 47, 53,
55, 56, 59, 60.) Judge Martinotti informed Testa that he would receive no additional extensions,
and his failure to comply with the briefing schedule in the July 31, 2017 Order would result in the
pending motions to be considered unopposed. (ECF No. 60.) Nonetheless, on August 14, 2017,
Testa moved again for an additional extension (ECF No. 61) and Judge Martinotti denied the
request (ECF No. 61).
On January 30, 2018, all six motions filed by Defendants were granted and Testa’s claims
were dismissed without prejudice. (ECF No. 65.) Additionally, Judge Martinotti issued an Order
to Show Cause for why Testa’s case should not be dismissed in its entirety for failure to properly
serve Defendants. (Id.) On February 14, 2018, Testa submitted an application for an extension to

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file an amended complaint, claiming he needed until August 2018 due to various reasons, including
health issues, preparing for the New Jersey Bar Exam, and because of “attempts by my opponents
in federal litigation to literally starve me to death.” (ECF No. 67 ¶¶ 19.1-19.3.) Notably, the thirtythree page long application merely reiterated many of the same assertions Judge Martinotti
identified as deficient. (Id.) On February 20, 2018, Judge Martinotti denied the application for an
extension to file an amended complaint and dismissed with prejudice Testa’s Complaint in its
entirety for failing to serve Defendants pursuant to Federal Rule of Civil Procedure 4. (ECF No.
68.) In the present motion, Testa seeks relief from judgment of the January 30, 2018 and February
20, 2018 Orders. (ECF Nos. 70, 71.)
Discussion
I.

Legal Standard

Pursuant to the Federal Rule of Civil Procedure 60, a party may seek relief from a final
judgement or order. Rule 60(a) provides, in pertinent part:
Clerical mistakes in judgment, orders or other parts of the record
and errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative or on the
motion of any party and after such notice, if any, as the court orders.
Whereas Rule 60(a) only applies to “clerical mistakes,” Rule 60(b) “allows a party to seek
relief from a final judgment, and request reopening of his case, under a limited set of
circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). Specifically, a court may grant
relief from a final judgment or order under Rule 60(b) for one of 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);

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(3) fraud . . . , 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.
Fed. R. Civ. P. 60(b).
Significantly, the “remedy provided by Rule 60(b) is extraordinary, and special
circumstances must justify granting relief under it.” Jones v. Citigroup, Inc., No. 14-6547, 2015
WL 3385938, at *3 (D.N.J. May 26, 2015) (quoting Moolenaar v. Gov’t of the Virgin Islands, 822
F.2d 1342, 1346 (3d Cir. 1987). Generally, “[a] Rule 60(b) motion is addressed to the sound
discretion of the trial court guided by accepted legal principles applied in light of all the relevant
circumstances.” Ross v. Megan¸ 638 F.2d 646, 648 (3d Cir. 1981) (quotation omitted).
Nonetheless, a Rule 60(b) motion “may not be used as a substitute for appeal, and . . . legal error,
without more cannot justify granting a Rule 60(b) motion.” Holland v. Holt, 409 F. App’x 494,
497 (3d Cir. 2010) (quoting Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988)). Further, a motion
under Rule 60(b) may not be granted where the moving party could have raised the same legal
argument by means of a direct appeal. Id.
Testa seeks relief from the January 30, 2018 and February 20, 2018 Orders pursuant to
both sections (a) and (b) of Rule 60. (ECF No. 70 at 1; ECF No. 71 at 1.) Accordingly, the Court
addresses in turn whether in the interest of justice relief from its January 30, 2018 and February
20, 2018 Orders should be granted. See Boughner v. Sec’y of Health, Educ. & Welfare, 572 F.2d
976, 977 (3d Cir. 1978) (“The general purpose of Rule 60, which provides for relief from judgment

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for various reasons, is to strike a proper balance between the conflicting principles that litigation
must be brought to an end and that justice must be done.”)
II.

January 30, 2018 Order

Pursuant to Rule 60, a court may relieve a party from a final judgment or order. Gonzalez,
545 U.S. at 527. A judgment or order is final when it “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Cooper v. Lybrand v. Livesay, 437 U.S. 463,
467 (1978). As the Third Circuit explained, “an order dismissing a complaint without prejudice is
not a final order as long as the plaintiff may cure the deficiency and refile the complaint.” Ahmed
v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002); see also Welch v. Folsom, 925 F.2d 666, 668 (3d
Cir. 1991). Although Testa seeks relief from the January 30, 2018 Order, Judge Martinotti
dismissed Testa’s claims without prejudice and allowed him “fourteen days to amend the
Complaint to cure the deficiencies therein.” (ECF No. 64.) Indeed, the Judge only dismissed the
Complaint with prejudice in the February 20, 2018 Order. (ECF No. 68.) Accordingly, because
Testa was offered the opportunity to cure the deficiencies and refile his complaint, the January 30,
2018 Order was not a final judgment and Rule 60 does not apply. Accordingly, Testa’s motion for
relief of the January 30, 2018 Order is DENIED.
III.

February 20, 2018 Order

Testa seeks relief pursuant to Rule 60(a), (b)(1), (b)(3), and (b)(6) from the February 20,
2018 Order, denying his request for an extension to file an amended complaint and dismissing his
claims for failing to serve Defendants. (ECF No. 71 at 1.) Specifically, Testa argues that denying
him the opportunity file an amended complaint would be prejudicial and manifestly unjust.5 (ECF

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Although Testa raised several arguments, the content of his assertions are generally unclear,
disjointed, and irrelevant to the present motion. Therefore, to the extent Testa’s arguments can be
discerned, the Court will address the portions related to his request for relief.
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No. 71 at 25.) However, Testa has not established “extraordinary, and special circumstances” to
justify granting relief and reopening the case. Pridgen v. Shannon, 380 F.3d 721, 728 (3d Cir.
2004).
As an initial matter, relief pursuant to Rule 60(a) does not apply here because no clerical
mistake was made in issuing the February 20, 2018 Order. See Stradley v. Cortez, 518 F.2d 488,
493 (3d Cir. 1975). Moreover, to the extent Testa seeks relief under Rule 60(b)(1) for mistake,
relief on this basis only concerns mistakes of a substantive nature. See Id. (“Rule 60(b)(1) is
concerned with mistakes of a substantive nature.”) Mistake under Rule 60(b)(1) is not implicated
in the present matter because Testa’s claims were dismissed on procedural grounds. Rather, the
applicable portion here for a Rule 60(b)(1) motion is “excusable neglect,” where “all relevant
circumstances surrounding a party’s failure to file” are considered.6 George Harms Const. Co.,
Inc. v. Chao, 371 F.3d 156, 163 (3d Cir. 2004) (citing Pioneer Inv. Servs. Comp. v. Brunswick
Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
Here, Testa’s inability to comply with several prior orders is far from excusable. See
Blomeyer v. Levinson, No. 02-8378, 2006 WL 463503, at *9 (E.D. Pa. Feb. 21, 2006) (“Plaintiff,
regardless of his pro se status, is bound by the same procedural rules as any party.”). In the January
30, 2018 Opinion, Judge Martinotti examined Testa’s claims, many of which are merely reiterated
in the present motion for relief, and dismissed the Complaint without prejudice for failure to state
a claim. (ECF No. 64.) Additionally, the court noted Testa’s pleading was procedurally deficient

In seeking relief under Rule 60(b)(1), Testa argues “[t]he Court imposed a time constraint of
fourteen days . . . to amend which was not enough time.” (ECF No. 70 at 39.) Because this
allegation is not a “litigation mistake,” nor does Testa identify “a substantive mistake of law or
fact,” the Court addresses Testa’s arguments under the “excusable neglect” standard of Rule
60(b)(1). Den Be ex rel. Bell v. Hamilton Twp. (citing Yapp v. Excel Corp., 186 F.3d 1222, 1231
(10th Cir. 1999).
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for failing to serve Defendants pursuant to Federal Rule of Civil Procedure 4. (ECF No. 65.)
Notwithstanding, Judge Martinotti allowed Testa the opportunity to file an amended complaint
and directed him to show good cause for not serving Defendants. (Id.) However, rather than
complying with the court-ordered deadline, Testa unilaterally decided the amount of time was
insufficient and opted to not file an amended complaint. (ECF No. 67 ¶ 17.) Instead, Testa chose
to file an untimely, thirty-three page application requesting an extension and detailing additional
rambling, fantastical allegations.7 (See generally, id.) Notably, Testa conceded that he could have
filed a timely extension, but did not do so. (Id. ¶ 18.) Furthermore, the fact that Testa was capable
of submitting a thirty-page document belies his position that he could not timely amend his
complaint or explain his failure to make service. Therefore, while relief may be granted for
excusable neglect, “a litigant’s protracted and unjustified carelessness alone does not constitute
excusable neglect for Rule 60(b)(1) purposes.” Den Be ex rel. Bell v. Hamilton Twp. Mun. Court,
No. 07-1588, 2008 WL 5156683, at *3 (D.N.J. Dec. 5, 2008) (citing Kagan v. Caterpiller Tractor
Co., 795 F.2d 601, 607 (7th Cir. 1986)). Indeed, Testa raises several allegations in his request for
relief but fails to address the primary reason Judge Martinotti dismissed his claims—untimely
filing of an amended complaint and failure to show good cause for not serving Defendants.
Accordingly, relief pursuant to Rule 60(b)(1) does not apply here.
Further, for the Court to set aside a judgment on the basis of fraud under Rule 60(b)(3),
Testa must show with clear and convincing evidence: “(1) that the adverse party engaged in fraud
or misconduct; and (2) that this conduct prevented the moving party from fully and fairly
presenting his case.” Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983); see also

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In addition, Testa has also submitted several lengthy letters to the Court containing similar
longwinded allegations that are untethered to reality. The contents of these letters do not impact
the Court’s analysis.
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Toolasprashad v. Wright, No. 02-5473, 2008 WL 4845306, at *5 (D.N.J. Nov. 3, 2008); July v.
D’ilio, No. 13-6741, 2018 WL 3492144, at *2 (D.N.J. July 20, 2018). However, Testa’s argument
that Defendants committed fraud by filing Rule 12 motions in an “attempt to close the pleadings”
(ECF No. 71 at 30), does not constitute the type of fraud or misconduct to justify relief under Rule
60(b)(3). Moreover, Testa advances no evidence to support the assertion that Defendants engaged
in fraud to prevent him from presenting his case. Rather, Testa’s thirty-seven-page brief focuses
on joining additional defendants, raising new allegations, and further detailing previous
allegations. Indeed, relief pursuant to a Rule 60(b)(3) motion is not warranted when “it is merely
an attempt to re-litigate the case or if the court otherwise concludes . . . that fraud or
misrepresentations or other misconduct has not been established.” LeJon-Twin El v. Marino, No.
16-2292, 2017 WL 3400001 at, *3 (D.N.J. Aug. 7, 2017) (citation omitted). Accordingly, relief
pursuant to Rule 60(b)(3) does not apply here.
Likewise, with respect to Rule 60(b)(6), the motion “must be fully substantiated by
adequate proof and its exceptional character must be clearly established.” FDIC v. Alker, 234 F.2d
113, 116-17 (3d Cir. 1956). To the extent Testa contends Rule 60(b)(6) applies because “[j]ustice
favors adjudication on the merits,” (ECF No. 71 at 31), the argument does not constitute an
extraordinary, and special circumstance to justify reopening the case. Gonzalez, 545 U.S. at 529;
see also Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 533 (D.N.J. 1998) (“The remedy provided by
Rule 60(b) is extraordinary, and [only] special circumstances may justify granting relief under it.”
(internal citation omitted)). Although courts must liberally construe submissions by pro se parties,
Testa’s pro se status does not exempt him from compliance with court orders and applicable rules.
See Jones v. Sec’y Pennsylvania Dep’t of Corr., 589 F. App’x 591, 593 (3d Cir. 2014) (“Although
we liberally construe pro se filings, [plaintiff] is not exempt from procedural rules or the

9

consequences of failing to comply with them.”). Therefore, relief pursuant to Rule 60(b)(6) does
not apply here. See Weber v. Pierce, No. 13-0283, 2016 WL 2771122, at *2 (D. Del. May 13,
2016) (“A court may grant a Rule 60(b) motion only in extraordinary circumstances, and a Rule
60(b) motion is not appropriate to reargue issues that the court has already considered and
decided.” (citation omitted)). Accordingly, Testa’s Rule 60 motion for relief of the February 20,
2018 Order is DENIED.
Conclusion
For the reasons set forth above, Testa’s Motion for Relief of the January 30, 2018 Order
(ECF No. 70) and Motion for Relief of the February 20, 2018 Order (ECF No. 71) are DENIED.
An appropriate Order will follow.

Date: November 6, 2018

/s/ Freda L. Wolfson
HON. FREDA L. WOLFSON
UNITED STATES DISTRICT JUDGE

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