Protectors Insurance & Financial Services LLC

Filing 34

MEMORANDUM AND ORDER Denying 32 Opposed MOTION for Relief from Judgment (Signed by Judge Nancy F. Atlas) Parties notified.(gkelner, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

PROTECTORS INSURANCE AND
FINANCIAL SERVICES, LLC,
Plaintiff,
v.
LEXINGTON INSURANCE CO.,
Defendant.

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CIVIL ACTION NO. H-12-3469

MEMORANDUM AND ORDER
This case is before the Court on the Motion for Relief from Judgment
(“Motion”) [Doc. # 32] filed by Plaintiff Protectors Insurance and Financial Services,
LLC (“Protectors”), to which Defendant Lexington Insurance Company (“Lexington”)
filed a Response [Doc. # 33]. Plaintiff neither filed a reply nor requested additional
time to do so. Having carefully considered the record and the applicable legal
authorities, the Court denies Plaintiff’s Motion.
I.

BACKGROUND
In September 2009, Plaintiff was sued in Georgia state court for acts allegedly

covered by the Insurance Agents Errors & Omissions Coverage Policy (“Policy”)
between Plaintiff as the insured and Defendant as the insurer. Plaintiff hired a law

firm to represent it in the Georgia lawsuit, but did not notify Defendant of the
litigation until May 7, 2010.
Plaintiff filed this lawsuit on November 29, 2012, alleging that Defendant failed
to pay in full the legal expenses incurred in the Georgia lawsuit before May 7, 2010.
By Memorandum and Order [Doc. # 20] entered June 19, 2013, the Court dismissed
Plaintiff’s bad faith, Texas Deceptive Trade Practices Act (“DTPA”), fraud, and Texas
Insurance Code claims for failure to comply with the pleading requirements of Rule
9(b) of the Federal Rules of Civil Procedure. By Memorandum and Order [Doc. # 30]
and Final Judgment [Doc. # 31] entered September 12, 2013, the Court granted
summary judgment in Defendant’s favor on the remaining claims for breach of
contract, promissory estoppel, unjust enrichment, quantum meruit, and breach of
fiduciary duty.
On November 5, 2013, Plaintiff filed its Motion for Relief from Judgment. The
Motion is now ripe for decision.
II.

STANDARD FOR RULE 60(b) MOTION
Rule 60(b) contains six alternative grounds for relief:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
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judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying
relief from operation of the judgment.
FED. R. CIV. P. 60(b). Plaintiff seeks relief pursuant to Rule 60(b)(1)-(3).
Relief under Rule 60(b)(1) is available where the movant establishes “mistake,
inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1).
Under Rule 60(b)(2), based on newly discovered evidence, the “movant must
demonstrate: (1) that it exercised due diligence in obtaining the information; and (2)
that the evidence is material and controlling and clearly would have produced a
different result if present before the original judgment.’” Hesling v. CSX Transp.,
Inc., 396 F.3d 632, 639 (5th Cir. 2005) (quoting Goldstein v. MCI WorldCom, 340
F.3d 238, 257 (5th Cir. 2003)).
Rule 60(b)(3) provides a basis for relief from judgment where the movant
presents clear and convincing evidence of “fraud . . ., misrepresentation, or other
misconduct of an adverse party.” FED. R. CIV. P. 60(b)(3); Hesling, 396 F.3d at 641.
“This subsection of the Rule is aimed at judgments which were unfairly obtained, not
at those which are factually incorrect.” Gen’l Universal Sys. v. Lee, 379 F.3d 131, 156
(5th Cir. 2004) (citing Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 1978);
Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1359 (5th Cir. 1988)). “A party
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making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged in
fraud or other misconduct, and (2) that this misconduct prevented the moving party
from fully and fairly presenting his case.” Id. “The moving party has the burden of
proving the misconduct by clear and convincing evidence.” Id.
III.

ANALYSIS
Plaintiff has failed to allege facts or present evidence that demonstrate the

Court’s summary judgment ruling was the result of mistake, inadvertence, surprise,
or excusable neglect. Plaintiff has not presented any newly discovered evidence, and
has neither alleged nor established by clear and convincing evidence that Defendant
engaged in fraud or other misconduct that prevented Plaintiff from presenting its case.
Instead, Plaintiff simply restates practically verbatim the arguments it presented in
opposition to the Motion for Summary Judgment. See Plaintiff’s Response to Motion
for Summary Judgment [Doc. # 24], p. 2; Plaintiff’s Motion [Doc. # 32], p. 10. As a
result, Plaintiff has failed to present a basis for Rule 60(b) relief.
IV.

CONCLUSION AND ORDER
Plaintiff has failed to demonstrate entitlement to relief pursuant to

Rule 60(b)(1)-(3). As a result, it is hereby
ORDERED that Plaintiff’s Motion for Relief from Judgment [Doc. # 32] is
DENIED.
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10th
SIGNED at Houston, Texas, this _____ day of December, 2013.

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