Camastro et al v. West Virginia Alcohol Beverage Control Commission et al

Filing 112

MEMORANDUM OPINION AND ORDER DENYING 107 PLAINTIFFS' MOTION TO RECONSIDER. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/17/2015. (copy to counsel of record via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
VINCE CAMASTRO,
GROVE TERRACE CAFÉ, INC.
and CAMASTRO ADVERTISING,
Plaintiffs,
v.

Civil Action No. 5:14CV67
(STAMP)

WEST VIRGINIA ALCOHOL
BEVERAGE CONTROL COMMISSION,
THE CITY OF WHEELING,
OHIO COUNTY COMMISSION,
WHEELING BOARD OF ZONING APPEALS,
LAMAR ADVERTISING,
ROBERT BAUMGARDNER, ANDY McKENZIE,
NICK SPARACHANE, JACK LIPPHART,
RUSTY JEBBIA, ROBERT HERRON,
PAUL McINTIRE, GREGG STEWART,
CARL WORTHY PAUL,
CORPORAL JAMES DEAN,
CORPORAL E.M. McFARLAND,
TOM CONNELLY, BARRY CROW
and CLIFF RECTOR,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO RECONSIDER
I.

Background1

The plaintiffs filed this civil action in this Court on May
22, 2014. The plaintiffs’ causes of action included the following:
(1) trespass; (2) conspiracy to violate the plaintiffs’ civil
rights; (3) improperly denying the plaintiffs’ applications for

1

The provided facts are a summary of the extensive factual and
legal history of this civil action. For a more detailed discussion
of such history, see this Court’s memorandum opinion and order
granting the defendants’ motions to dismiss. ECF No. 74.

video lottery and liquor licenses; and (4) false arrest for false
swearing.

The plaintiffs alleged that their various causes of

action began in 1997. The plaintiffs sought a declaratory judgment
that the plaintiffs Vince Camastro and Grove Terrace Café were
“bona fide applicants” for West Virginia video lottery and liquor
licenses and an order mandating that the plaintiffs Vince Camastro
and Grove Terrace Café receive such licenses.

Further, the

plaintiffs sought compensatory damages of one hundred million
dollars ($100,000,000.00), punitive damages of one hundred million
dollars

($100,000,000.00),

defendants.

The

and

defendants,

attorney’s

with

the

Advertising, each filed motions to dismiss.

fees

against

exception

of

the
Lamar

After reviewing the

fully briefed motions and the record, this Court ultimately granted
the defendants’ motions to dismiss.

ECF No. 74.

In addition to the motions to dismiss, certain defendants
sought sanctions against the plaintiffs pursuant to Rule 11 of the
Federal Rules of Civil Procedure.

See ECF No. 29.

This Court

conducted a hearing as to the motion for sanctions, where the Court
heard from the relevant parties. This Court allowed the plaintiffs
to show good cause as to why Rule 11 sanctions should not be
imposed. ECF No. 102. After hearing from both parties, this Court
granted in part the motion for sanctions.2

2

In particular, this

It should be noted that at the Rule 11 hearing, the defendants
seeking the motion for sanctions also orally moved for monetary
sanctions, which this Court denied. The plaintiffs also orally
2

Court imposed a pre-filing injunction against the plaintiff Vince
Camastro3 that stated the following:
The plaintiff may not file an action in this United
States District Court related to the claims brought in
this civil action without first obtaining leave by the
undersigned judge or another judge in the United States
District Court for the Norther District of West Virginia.
Those claims include, but are not limited to, the
following: (1) a continuous conspiracy to violate his
civil rights through the denial of his applications for
certain licenses regarding his attempt to build a car
wash, the installation of certain billboards, his
application for a video lottery café license with a
liquor permit, and the removal of his signs stating that
the public officials of The City of Wheeling are
“corrupt;” (2) a violation of his civil rights through
the denial of his application for a video lottery license
with a liquor permit and enacting overly stringent zoning
laws; (3) intentional interference with the plaintiff’s
business relations by denying his applications for
installing certain billboards, opening a car wash,
denying his application for a video lottery license with
a liquor permit, and failing to respond to the
plaintiff’s inquiries about building a hotel; (4)
violating his First Amendment rights by removing his
billboards that stated certain public officials were
“corrupt”; and (5) that The City of Wheeling defendants
took no action in preventing individuals from parking
near and trespassing on the plaintiff’s business
property. Furthermore, the plaintiff is enjoined from
filing in this United States District Court any civil
action
alleging
matters
that
are
similar
to,
substantially similar to, or identical to the matters
raised in this civil action – Civil Action No. 5:14CV67.
ECF No. 102 at *9.

moved to continue the Rule 11 hearing for a fourth time.
The
plaintiffs had previously filed three motions to continue the Rule
11 hearing, which this Court granted. However, the Court denied
the fourth motion to continue the Rule 11 hearing.
3

This Court did not impose the pre-filing injunction against
the plaintiff corporations listed in this civil action because they
were not plaintiffs in the prior lawsuits.
3

At issue now is the plaintiffs’ motion to reconsider. ECF No.
107.

The plaintiffs filed their motion pursuant to Rule 60(b)(1),

(3), and (6) of the Federal Rules of Civil Procedure. Their motion
requests that this Court reconsider its prior ruling, wherein this
Court granted the defendants’ motions to dismiss. ECF No. 74. The
plaintiffs assert three arguments.

First, the plaintiffs believe

excusable neglect, as defined under Rule 60(b)(1), exists.4

Here,

the plaintiffs claim that their earlier counsel at the time
“abandoned” them approximately three weeks before the complaint was
filed.

In essence, the plaintiffs believe that they were “forced”

to proceed pro se when they filed their complaint.

Now that they

have new counsel, the plaintiffs believe they can more adequately
pursue their claims.

Second, the plaintiffs argue that plaintiff

Camastro has a mental disability, and that the defendants took
advantage of that disability throughout this civil action.
also

believe

that

the

defendants

“used”

plaintiff

They

Camastro’s

disability by convincing him to improperly register for video
lottery and liquor licenses.

Third, the plaintiffs believe that

they should have a second chance to pursue their original civil
rights claim, which they asserted while previously proceeding pro
se, because they have now obtained new counsel.

4

The plaintiffs also appear to justify their first argument
under Rule 60(b)(6). ECF No. 107 at *5.
4

In response to the plaintiffs’ motion to reconsider, the
following defendants filed responses in opposition. Because of the
number of the defendants and their responses, a list is provided to
simplify who filed which response.
“Defendants A”5
Corporal James Dean

Corporal E.M. McFarland

“Defendants B”6
West Virginia Alcohol Beverage
Control Commission

Robert Baumgardner

“Defendants C”7
The City of Wheeling

The Wheeling Zoning Board

Barry Crow

Andy McKenzie

Nick Sparachane

Jack Lipphart

Rusty Jebbia

Robert Herron

Paul McIntire

Tom Connelly
“Defendants D”

Ohio County Commission

Gregg Stewart

“Defendant E”
Cliff Rector

5

ECF No. 108

6

ECF No. 109.

7

ECF No. 111.
5

“Defendant F”
Carl Worthy Paul
“Defendant G”
Lamar Advertising
Of the defendants identified above, Defendants A, B, and C each
filed responses in opposition.

Defendants D, E, F, and G did not

respond to the plaintiffs’ motion.
As to the responding defendants, Defendants A argue that the
plaintiffs motion lacks any merit.

Here, Defendants A point out

that the plaintiffs rely on unsubstantiated statements and have not
demonstrated any extraordinary circumstances.
that

this

limitations

Court
for

correctly
most

of

determined

plaintiffs’

that

claims

Defendants B argue
the

statute

expired

in

of

2008.

Further, Defendants B also contend that the plaintiffs’ arguments
and circumstances are not extraordinary, and therefore, relief
under Rule 60(b) should be denied.

Although they filed a separate

response, Defendants C stated that they join in the response of
Defendants A.

They also contend that the plaintiffs’ current

motion is nothing more than a bad faith and vexatious attempt to
harass the defendants.
For the reasons discussed below, the plaintiffs’ motion to
reconsider is DENIED.

6

II.

Applicable Law

Federal Rule of Civil Procedure 60(b) provides that a court
may, upon motion or other terms, relieve a party from a final
judgment, order, or proceeding for any 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); (3) fraud
(whether previously called intrinsic or extrinsic),
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)(1-6).

Generally, motions to reconsider are

“to be granted only in such extraordinary circumstances . . . .
Indeed, the court’s orders are not mere first drafts, subject to
revision and reconsideration at a litigant’s pleasure.”

United

States S.E.C. v. Nat’l Presto Industries, Inc., 2004 WL 1093390, at
*2 (N.D. Ill. Apr. 28, 2004) (quoting Quaker Alloy Casting Co. v.
Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988)); see
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64
(1988); Massengale v. Oklahoma Bd. of Examiners in Optometry, 30
F.3d 1325, 1330-31 (10th Cir. 1994).

It is improper to use such a

motion to ask the court to “rethink what the court has already
thought through–rightly or wrongly.”

Above the Belt, Inc. v. Mel

Bohannan

99,

Roofing,

Inc.,

99

F.R.D.

7

101

(E.D.

Va.

1983).

Examples of when a motion to reconsider may be appropriate include
situations such as the following:
[W]here . . . the Court has patently misunderstood a
party, or has made a decision outside the adversarial
issues presented to the Court by the parties, or has made
an error not of reasoning but of apprehension. A further
basis for a motion to reconsider would be a controlling
or significant change in the law or facts since the
submission of the issue to the Court.
Such problems
rarely arise and the motion to reconsider should be
equally rare.
Id. at 101; Bank of Waunakee v. Rochester Cheese Sales, Inc., 906
F.2d 1185 (7th Cir. 1990). A general principle applied in the Rule
60(b) context is that “disposition of a motion under Fed. R. Civ.
P. 60(b) is within the sound discretion of the district court.”
Evans v. United Life & Acc. Ins. Co., 871 F.2d 466, 472 (4th Cir.
1989) (citing Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573,
576 (4th Cir. 1973); Wood v. Kling, 98 F.R.D. 319, 320 (E.D. Va.
1983)).
III.

Discussion

The plaintiffs filed their motion under Rule 60(b)(1), (3),
and (6).

Those provisions of Rule 60(b) and the plaintiffs’

arguments are discussed below in the order presented.
A. The Plaintiffs Have Not Shown Excusable Neglect
Rule

60(b)(1),

which

applies

to

“mistake,

inadvertence,

surprise, or excusable neglect,” is a demanding standard. “A party
that fails to act with diligence will be unable to establish that
his

conduct

constituted

excusable

8

neglect

pursuant

to

Rule

60(b)(1).” Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 413
(4th Cir. 2010) (internal citations omitted).

Moreover, “[t]o

prevail, the Rule 60(b)(1) movant must demonstrate that he has a
meritorious defense and that arguably one of the four conditions
for relief applies-mistake, inadvertence, surprise or excusable
neglect.”

Lust, 479 F.2d at 576.

And, as previously stated,

“disposition of a motion under Fed. R. Civ. P. 60(b) is within the
sound discretion” of this Court.

Evans, 871 F.2d at 472 (citing

Lust, 479 F.2d at 576; Kling, 98 F.R.D. at 320).
Based on the law discussed above, the plaintiffs’ motion lacks
merit.

The plaintiffs claim that their prior counsel “abandoned”

them three weeks before filing the complaint, which resulted in
them proceeding pro se throughout this civil action.
fails for three reasons.

That claim

First, although the plaintiff filed the

complaint pro se, this Court granted the plaintiffs’ numerous
motions for additional time to respond to the defendants’ motions
to

dismiss.

Within

those

motions

for

additional

time,

the

plaintiffs indicated that they were attempting to or were close to
obtaining counsel.

The plaintiffs had ample time to seek counsel

if they so desired. Second, this Court provided not only a “Notice
of General Guidelines for Appearing Pro Se” to the plaintiffs, but
also sent the plaintiffs two notices which advised them that
failure to respond to the motions to dismiss may result in the
dismissal of their claims, pursuant to Davis v. Zahradnick, 600

9

F.2d 458, 460 (4th Cir. 1979) and Roseboro v. Garrison, 528 F.2d
309, 310 (4th Cir. 1975).

ECF Nos. 2, 48, and 69.

The point is

that the plaintiffs had ample time to seek counsel and received
plenty of notice about the status of their civil action.

Third,

the plaintiffs have not demonstrated that their claim has merit.
The United States Court of Appeals for the Fourth Circuit has held
that a “lawyer’s ignorance or carelessness [does] not present
cognizable grounds for relief under 60(b).”
472.
by

Evans, 871 F.2d at

That means that the plaintiffs cannot justify their request

blaming

their

past

counsel

for

neglect.

Therefore,

the

plaintiffs’ first argument clearly lacks merit.8
B. The Plaintiffs Have Not Shown Misconduct
The plaintiffs next argue that Defendants B took advantage of
plaintiff Vince Camastro’s mental disability by telling him to
“register his video game establishment as a private member club.”
By registering as a private member club, the plaintiffs argue that
such registration resulted in the denial of plaintiff Camastro’s
license applications. The plaintiffs argue that such conduct, plus
plaintiff Camastro’s disability, shows sufficient misconduct.
In order to prevail under Rule 60(b)(3), the plaintiffs here
must establish the following:

8

To the extent that the plaintiffs believe that such alleged
neglect demonstrates extraordinary circumstances under Rule
60(b)(6), such argument also lacks merit. See ECF No. 107 at *5.
10

(1) the moving party must have a meritorious defense; (2)
the moving party must prove misconduct by clear and
convincing evidence; and (3) the misconduct prevented the
moving party from fully presenting its case. After proof
of these elements, the court must balance the competing
policies favoring the finality of judgments and justice
being done in view of all the facts, to determine within
its discretion, whether relief is appropriate in each
case.
Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994) (citing Square
Constr. Co. v. Washington Metro. Area Transit Auth., 657 F.2d 68,
71 (4th Cir. 1981)) (internal quotation marks omitted).

Examples

of such conduct may include failing to disclose or produce evidence
requested in discovery.

Stridiron v. Stridiron, 698 F.2d 204, 207

(3d Cir. 1983); Montgomery v. Hall, 592 F.2d 278, 279 (5th Cir.
1979).
In this case, the plaintiffs have established none of the
required elements.

More specifically, the plaintiffs have not

offered clear and convincing evidence that the defendants engaged
in

misconduct.

Rather,

the

plaintiffs

simply

assert

that

Defendants B, allegedly knowing that plaintiff Camastro is mentally
disabled,

convinced

him

to

licenses.

That accusation, and nothing more, fails to satisfy the

clear and convincing standard.

improperly

register

for

certain

Moreover, the plaintiffs offer no

evidence that any defendant engaged in misconduct throughout this
case.

Although the plaintiffs proceeded pro se, they were offered

numerous extensions of time to obtain counsel and were informed of
the consequences of proceeding pro se.

11

Further, in light of all

the facts, this Court’s interest in the finality of judgments
clearly outweighs the plaintiffs’ conclusory arguments.

Based on

the record, the plaintiffs have failed to prove by clear and
convincing evidence that the defendants engaged in any misconduct.
Therefore, the plaintiffs’ motion must be denied.
C. The Plaintiffs Have Not Shown Extraordinary Circumstances
Rule

60(b)(6)

“grants

federal

courts

broad

authority

to

relieve a party from a final judgment upon such terms as are
just[.]”

Liljeberg v. Health Services Acquisition Corp., 486 U.S.

847, 863 (1988).
made

clear,

“it

circumstances.’”

As the Supreme Court of the United States has
should

only

be

applied

in

‘extraordinary

Id. at 864 (citing Ackermann v. United States,

340 U.S. 193 (1950)).

The United States Court of Appeals for the

Fourth Circuit has also stated that “the party filing the motion
[must] have a meritorious claim or defense and that the opposing
party not be unfairly prejudiced by having the judgment set aside.”
Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (citing Dowell
v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.
1993)).

Nonetheless, the disposition of such motions remains

within the discretion possessed by this Court.

Evans, 871 F.2d at

472.
Here, no extraordinary circumstances exist.

The plaintiffs

contend that they face a continued violation of their civil rights.
They point to the arrest of plaintiff Camastro for false swearing,

12

which was originally asserted in their complaint.

As this Court

already ruled in its prior memorandum opinion and order, however,
the statute of limitations clearly bars that claim.

ECF No. 74.

Moreover, the plaintiffs provide no evidence of any continued civil
rights

violation.

demonstrate

that

Their

unsubstantiated

“extraordinary

allegations

circumstances”

exist.

do

not
The

plaintiffs’ motion to reconsider at issue clearly lacks merit, and
therefore it must be DENIED. Although not all defendants listed in
this civil action responded to the plaintiffs’ motion, this Court’s
ruling applies to all defendants in this civil action.
IV.

Conclusion

For the reasons set forth above, the plaintiffs’ motion to
reconsider (ECF No. 107) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

December 17, 2015

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

13