John Laschkewitsch as Administrator for the Estate of Ben Lachkewitsch v. The Lincoln National Life Insurance Company

Filing 155

ORDER denying 141 Motion for Relief from Judgment for Oversight, Omissions, and Want of Subject Matter Jurisdiction; granting 144 Motion to Seal; denying without prejudice 147 Motion for Permanent Injunction; and granting 151 Motion to Seal. Signed by US District Judge Terrence W. Boyle on 12/8/2017. Copy sent to John Laschkewitsch via US Mail to 1933 Ashridge Drive, Fayetteville, NC 28304. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5: 13-CV-315-BO

JOHN B. LASCHKEWITSCH as administrator
for the Estate of Ben Laschkewitsch,
Plaintiff,

v.
LINCOLN LIFE AND ANNUITY
DISTRIBUTORS, INC., d/b/a/ LINCOLN
FINANCIAL GROUP, INC.,
Defendant.

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ORDER

This matter comes before the Court on a motion by plaintiff, pro se, for relief from
judgment. Defendant has responded, plaintiff has replied, and the motion is ripe for ruling. Also
before the Court and ripe for adjudication are plaintiffs motions to seal and defendant's motion
for entry of a prefiling injunction.
BACKGROUND
The Court incorporates by reference the factual background of this matter as recited in its
summary judgment order entered September 16, 2014. [DE 114]. Since final judgment was
entered in this case, the Court has denied plaintiffs motion to alter or amend judgment and the
court of appeals has dismissed his appeal. [DE 120; 135]. The United States Supreme Court has
denied plaintiffs petition for writ of certiorari. [DE 140]. On September 5, 2017, plaintiff filed
the instant motion for relief from judgment pursuant to Rules 60(a) and 60(b)(4) of the Federal
Rules of Civil Procedure. Plaintiff asks this Court to correct its prior errors arising from oversight

or omission and to dismiss defendant's counterclaims for lack of subject matter jurisdiction due to
defendant's failure to demonstrate standing.
DISCUSSION
Rule 60(a) of the Federal Rules of Civil Procedure allows a court to correct clerical
mistakes or mistakes arising from oversight or omission. Fed R. Civ. P. 60(a); Am. Trucking

Ass 'ns v. Frisco Transp. Co., 358 U.S. 133, 145 (1958) ("It is axiomatic that courts have the power
and the duty to correct judgments which contain clerical errors or judgments which have issued
due to inadvertence or mistake."). Rule 60(a) allows a court to corre.ct typographical and clerical
errors as well as ambiguities in a prior order, or make corrections that are consistent with the
court's intention. Sartin v. McNair Law Firm PA, 756 F.3d 259, 266 (4th Cir. 2014) (listing cases).
Thus, "the scope of a court's authority under Rule 60(a) to make corrections to an order or
judgment is circumscribed by the court's intent when it issued the order or judgment." Id.
Plaintiff has presented no grounds in his motion which would support relief under Rule
60(a). Although plaintiff refers to "omissions" and "oversights" in the Court's prior order on
summary judgment, he has failed to identify any "correction" required to make the order consistent
with the Court's intent. His motion on this basis is denied.
Rule 60(b )(4) of the Federal Rules of Civil Procedure provides for relief from final
judgment where the judgment is void. "An order is 'void' for purposes of Rule 60(b)(4) only if
the court rendering the decision lacked personal or subject matter jurisdiction or acted in a manner
inconsistent with due process of law." Wendt v. Leonard, 43 l F.3d 410, 412 (4th Cir. 2005).
Where, as here, a judgment is challenged as void on the basis of the absence of subject matter
jurisdiction, the jurisdictional error must be deemed egregious before the judgment will be treated
as void, and it must be demonstrated that there was a '"total want of jurisdiction' and no arguable

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basis on which [the court] could have rested a finding that it had jurisdiction." Id at 413 (quoting

Nemaizer v. Baker, 793 F. 2d 58, 65 (2nd Cir. 1986)).
Plaintiff challenges defendant's standing to have brought its counterclaims. Federal courts
may consider only cases or controversies, and "the doctrine of standing has always been an
essential component" of the case or controversy requirement. Marshall v. Meadows, 105 F.3d
904, 906 (4th Cir. 1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To
demonstrate standing, a plaintiff must establish that they have suffered an injury in fact that is
concrete and particularized, that the injury is fairly traceable to the challenged action of the
defendant, and that the injury is likely to be redressed by a favorable decision from the Court.

Chambers Med Techs. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (citing Lujan,
504 U.S. at 555); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016).
Plaintiff has failed to demonstrate that there is no arguable basis for the Court to have found
it had jurisdiction over defendant's counterclaims. The Court's summary judgment order plainly
detailed that plaintiffs fraud against defendant was beyond dispute, that plaintiff engaged in unfair
and deceptive trade practices, that he engaged in misrepresentation, that plaintiff breached his
producer agreement with defendant, and that defendant was damaged thereby. Accordingly,
contrary to plaintiffs argument that defendant's alleged injury was not imminent or concrete,
defendant had standing to assert its claims against plaintiff. Moreover, nothing in the Court's
review of this matter would convince it that there was a total want of jurisdiction over defendant's
counterclaims. Plaintiffs motion on this ground is also denied.
At bottom, although judgment has been entered and this case is closed, plaintiff seeks
another opportunity to litigate his claims and defenses. Rule 60, however, "may not be used to

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relitigate claims already decided by the court." Saunders v. City of Petersburg Polic~ Dep't, 158
F. App'x 491 (4th Cir. 2005); see also CNF Constructors, Inc. v. Donohoe Const. Co., 57 F.3d
395, 401 (4th Cir. 1995) (Rule 60 not a substitute for direct appeal).
Defendant has filed a motion for entry of a prefiling injunction in this matter, which would
prevent plaintiff from filing any document against defendant in this case and enjoin plaintiff from
filing any action against defendant or its related entities arising from the underlying factual
allegations of this case without first obtaining leave of court. "[T]he All Writs Act, 28 U.S.C. §
1651 (a) (2000), grants federal courts the authority to limit access to the courts by vexatious and
repetitive litigants", but "[ s]uch a drastic remedy must be used sparingly ... consistent with
constitutional guarantees of due process of law and access to the courts." Cromer v. Kraft Foods

N Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004). The Court declines to exercise its discretion to
enter a prefiling injunction against plaintiff at this time.

Plaintiff is, however, warned that

continuing to file baseless motions in closed cases may lead to just such a result.
Finally, the Court has considered plaintiffs motions to seal. For good cause shown, and
as the requested sealed material consists of personal medical records, the motions to seal are
granted.
CONCLUSION
For the foregoing reasons, plaintiff's motion for relief from judgment [DE 141] is
DENIED. Plaintiff's motions to seal [DE 144 & 151] are GRANTED. Defendant's motion for
prefiling injunction [DE 147] is DENIED WITHOUT PREJUDICE.
SO ORDERED. This 1 d a y of December, 2017.

T:x:~~
UNITED STATES DISTRICT JUD E
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