Dutkevitch et al v. PA Cyber Charter School et al

Filing 120

ORDER denying 112 Motion to Vacate Judgment; denying 113 Motion for Sanctions. Signed by Honorable Alan N. Bloch on 1/12/2012. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT DUTKEVITCH, a minor, by
and through his parent, Sharon
Dutkevitch, and SHARON
DUTKEVITCH, individually and on
behalf of her son,

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Plaintiffs,

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vs.

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3:07-cv-1672

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WEST SIDE AREA VO-TECH SCHOOL
and PITTSTON AREA SCHOOL
DISTRICT,

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Defendants.

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o

R D E R

AND NOW, this 12th day of January, 2012, upon consideration
of Plaintiffs' "Motion and Declaration to Vacate Judgment"
(Document No. 112),1 filed in the above-captioned matter on July
28, 2011, and upon further consideration of Defendants' response
thereto (Document No. 116), filed on August 11, 2011, and
Plaintiff's reply (Document No. 118), filed on August 16, 2011,
IT IS HEREBY ORDERED that said Motion is DENIED.

AND FURTHER, upon consideration of Plaintiffs'

1

"Motion for

It is not entirely clear whether the present motions were
filed by the Plaintiffs jointly or just by one Plaintiff or the
other.
In an effort to read the pro se motions as broadly as
possible, the Court will assume that they were filed by both
Plaintiffs jointly.
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Sanctions II

(Document No. 113), filed in the above-captioned matter

on July 28, 2011, and upon further consideration of Defendants'
response thereto (Document No. 115), filed on August 11, 2011, and
Plaintiff's reply (Document No. 117), filed on August 16, 2011,
IT IS HEREBY ORDERED that said Motion is DENIED.
Final Judgment has been entered in this case, and the case is
closed.

Plaintiffs offer no basis for reopening the case in order

to vacate judgment, so the Court will assume that they seek relief
from judgment pursuant to Federal Rule of Civil Procedure 60(b).
Regardless, under any circumstances, Plaintiffs are not entitled
to the relief they seek.
Plaintiffs seek to have the judgment in this case vacated on
two grounds.

The first is that Plaintiff Vincent Dutkevitch, who

was a minor at the time he and his mother commenced this
litigation, is now an adult, yet was never added as an adult party
in this case. Plaintiffs allege that he was not appointed an
attorney as a minor or as an adult, that he never, as an adult,
waived his right to an Article III judge, and that he was not
served or asked to participate in court proceedings.

The second

ground is that the Defendants abused the process and committed
fraud upon the courts by misrepresenting facts regarding Vincent's
relationship with the Pittston Area School District at court
proceedings on March 11, 2009, and July 12, 2011.
has any merit.

2

Neither ground

Rule 60(b) provides for relief from a final judgment or order
on certain grounds.

"Rule 60(b) motions are viewed as

'extraordinary relief which should be granted only where
extraordinary justifying circumstances are present.'" Kiburz v.
Secretary, U.S. Dept. of the Navy, 2011 WL 4537728, at *2
Oct. 3, 2011)
1991)).

(3d Cir.

(quoting Bohus v. Beloff, 950 F.2d 919, 929 (3d Cir.

See also Santiago v. Nash, 268 Fed. Appx. 177, 178 (3d

Cir. 2008).

Accordingly, a Rule 60(b) movant bears a heavy

burden, requiring more than merely the potential significance of
the new information.

See Santiago, 268 Fed. Appx. at 178 (citing

Bohus, 950 F.2d at 929).
Plaintiffs do not indicate the subsection of Rule 60(b) under
which they seek relief as to their first ground, and it is not
clear which subsection would apply to their claim.

However, in

any event, their claims are not supported by the record.

Vincent

was, indeed, represented by counsel, Sarah Dragotta, from August
14, 2008, until the filing of the notice of appeal.
was represented, pro bono, by Dechert LLP.2

On appeal, he

Further, there is no

indication that he was denied any opportunity to participate in
the case in any way.

Plaintiffs do not allege, much less provide

2

The Court further notes that the Sixth Amendment does not
govern civil cases in any event, and that an indigent generally
has a right to counsel in a civil case only when his or her
physical liberty is at jeopardy, which, of course, is not the case
here. See Turner v. Rogers, 131 S. Ct. 2507, 2516 (2011).
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any support for the position that his interests were not fully
protected throughout the adjudication of his claims on their
merits.

Indeed, not only did he have counsel, his mother, with

whom he resided, was his co-Plaintiff.

In no way have Plaintiffs

alleged any extraordinary circumstances that would merit relief
under Rule 60(b) as to the first ground for relief.
Relief in regard to the second ground is clearly, though not
explicitly, sought pursuant to Rule 60(b) (3).
this rule,

To prevail under

"'the movant must establish that (1) the adverse party

engaged in fraud or other misconduct, and (2) this conduct
prevented the moving party from fully and fairly presenting his

case.'" Floorgraphics, Inc. v. News America Marketing In-Store
Services, Inc., 434 Fed. Appx. 109, 111-12 (3d Cir. 2011)
Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983)).

(quoting
In

order to sustain their burden, Plaintiffs must prove the alleged
fraud by clear and convincing evidence.

See id.

Here, Plaintiffs allege that Defendants engaged in fraud by
presenting contrary facts at oral argument before Magistrate Judge
Blewitt and before the Third Circuit Court of Appeals.

The claim

is vague and seems to be based on nothing more than a disagreement
with Defendants' contrary representations regarding the facts.
Plaintiffs provide no basis for the claim that the Defendants'
actions were fraudulent, either in the motion or in the
declaration.

However, even assuming that the vague allegation was

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sufficient, Plaintiffs do not make any allegations as to how the
alleged fraud prevented them from fully and fairly presenting
their case.

They could and did present their version of the facts

before the district and appellate courts.

As such, there is no

basis for relief under Rule 60{b) (3).
As to Plaintiffs' motion for sanctions, the Court notes that
nothing in the record suggests that Defendants' presentation of
facts in defense of the suit brought by Plaintiffs was in any way
improper.

Plaintiffs' mere disagreement with those facts does not

render them sanctionable.

Plaintiffs point to nothing that would

demonstrate an objective knowledge or belief on behalf of the
Defendants at the relevant time that the facts alleged by
Defendants were not well-grounded in fact and law.
Co. v. Summit Motor Prod., Inc.,
Accordingly,

See Ford Motor

930 F.2d 277, 289 (3d Cir. 1991).

both the Motion and Declaration to Vacate

Judgment and the Motion for Sanctions are denied in their entirety.
s/Alan N. Bloch
united States District Judge
ecf:

Counsel of record

cc:

Sharon Dutkevitch
Vincent Dutkevitch
114 S. Main Street, R
Pittston, PA 18640
(forwarded regular and certified mail)

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