Synovus Bank v. Nardone Enterprises Inc et al

Filing 40

ORDER denying 36 Motion to Set Aside Judgment Signed by Honorable David C Norton on 6/15/2015.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
SYNOVUS BANK,
Plaintiff,
v.
NARDONE ENTERPRISES, INC.;
RICHARD C. NARDONE; ALIX
NARDONE; and DAVID DAILEY,
Defendants.

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No. 9:14-cv-2057-DCN

ORDER

This matter is before the court on a motion for relief from judgment filed by
defendants Nardone Enterprises, Inc. (“Nardone Enterprises”), Richard C. Nardone
(“Richard”), and Alix Nardone (“Alix”) (collectively, “the Nardone defendants”). For
the reasons set forth below, the court denies the Nardone defendants’ motion.
In this lawsuit, plaintiff Synovus Bank (“Synovus”) alleges that defendants failed
to pay it money due under promissory notes and guarantees. On February 27, 2015,
Synovus filed a motion for summary judgment. When the Nardone defendants and
fellow defendant David Dailey (“Dailey”) failed to respond to the motion, the court
granted Synovus summary judgment on March 27, 2015. On April 6, 2015, the Nardone
defendants filed the instant motion for relief from judgment.1 Synovus responded on
April 21, 2015. The court held a hearing on May 6, 2015. At the hearing, the court
denied the motion as to Nardone Enterprises and Richard and took the motion under
advisement as to Alix. This order articulates the reasoning underlying the court’s oral
order and applies that reasoning to all of the Nardone defendants.

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Dailey has not moved for relief from judgment.
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The Nardone defendants bring their motion pursuant to Federal Rule of Civil
Procedure 60(b), which provides that
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
...
(6) any other reason that justifies relief.
Before seeking relief under one of the six subsections of Rule 60(b), the moving party
must first satisfy a four-part threshold test. Dowell v. State Farm Fire & Cas. Auto. Ins.
Co., 993 F.2d 46, 48 (4th Cir. 1993). This test requires the movant to demonstrate: (1)
timeliness; (2) a lack of unfair prejudice to the opposing party; (3) a meritorious defense;
and (4) exceptional circumstances. Id.; see also Wilson v. Thompson, 138 F. App’x 556,
557 (4th Cir. 2005) (citation omitted) (“The extraordinary remedy of Rule 60(b) is only
to be granted in exceptional circumstances.”). The Fourth Circuit has described this
threshold test as “onerous” and has noted that movants are “unlikely” to clear such a
hurdle. Coomer v. Coomer, 217 F.3d 838, *4 (4th Cir. 2000) (unpublished). The
disposition of a Rule 60(b) motion is within the sound discretion of the district court.
Evans v. United Life & Acc. Ins. Co., 871 F.2d 466, 472 (4th Cir. 1989).
The Nardone defendants’ motion fails. The motion is completely devoid of any
defense, much less a meritorious one, with regard to Nardone Enterprises and Richard.
While the Nardone defendants’ counsel attempted to articulate a defense with regard to
Alix at the hearing, his argument fell well short of what is required to show a meritorious
defense. See Moxhet v. Telstar Cable Commc’ns, Inc., No. 4:13-cv-896, 2014 WL
7146977, at *3 (D.S.C. Dec. 15, 2014) (“A meritorious defense is shown when the

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moving party makes a presentation or proffer of evidence which, if believed, would
permit the court to find for the defaulting party.”).
Because the Nardone defendants fail to satisfy Rule 60(b)’s threshold test, the
court DENIES their motion for relief from judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 15, 2015
Charleston, South Carolina

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