Erie Insurance Prope v. Walkup
MEMORANDUM OPINION AND ORDER: Defendant's 49 Motion under Rule 60(b)(5) is GRANTED and the Judgment Order of February 12, 2002, is hereby VACATED; Erie has until 03/14/2018, to file a motion to reinstate this matter to the court's active docket. Otherwise, this matter will remain closed; and the hearing scheduled for 02/20/2018, in Bluefeld is CANCELLED. Signed by Judge David A. Faber on 2/13/2018. (cc: attys; any unrepresented party) (msa) (Modified text on 2/13/2018 (slr)).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
ERIE INSURANCE PROPERTY
and CASUALTY COMPANY,
CIVIL ACTION NO. 5:01-00513
HARRY E. WALKUP, JR.,
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant’s pro se Rule 60
(ECF No. 49).
Plaintiff has not responded to this
After reviewing defendant’s filings, the court concluded
that it was possible defendant was entitled to relief under
Federal Rule of Civil Procedure 60(b)(5) and, by Order entered on
January 30, 2018, set a hearing on defendant’s motion for
February 20, 2018, at 11:00 a.m., in Bluefield.
plaintiff contacted the undersigned’s law clerk and informed the
court that it did not plan to contest defendant’s motion.
In this action plaintiff Erie Insurance and Property and
Casualty Company (“Erie”) sought to collect from defendant
Harry E. Walkup, Jr. (“Walkup”) $535,817.77 for burning the
building of an Erie policyholder.
Erie alleged that (1) Walkup
burned the law office of Barry L. Bruce on June 17, 2000, (2)
Erie paid Bruce $535,817.77 pursuant to its insurance policy with
him and (3) Walkup was convicted of second degree arson for
burning the Bruce law office.
On January 25, 2001, Judge Frank
E. Jolliffe of the Circuit Court of Greenbrier County, West
Virginia, entered an Order finding Walkup guilty of, among other
charges, second degree arson, for burning the Bruce law office.
Walkup submitted a petition of appeal on the conviction to the
West Virginia Supreme Court of Appeals, and that court rejected
the appeal on October 1, 2001.
In support of its motion for summary judgment, Erie relied
upon the doctrine of collateral estoppel to preclude Walkup from
contesting the critical facts of this case.
The court found that
Walkup was estopped from relitigating his criminal conviction in
this court because, under West Virginia law, a defendant found
guilty of a criminal offense is precluded from asserting that he
did not commit the criminal offense in civil litigation
concerning the same transaction.
See ECF No. 15 at 3-4 (citing
State ex rel. Leach v. Schlaegel, 447 S.E.2d 1, 4 (W. Va. 1994);
Baber v. Fortner ex rel. Poe, 412 S.E.2d 814 (W. Va. 1991)).
such, the court found Walkup liable to Erie as a matter of law
and, by Judgment Order dated February 12, 2002, granted Erie’s
motion for summary judgment.
See ECF No. 16.
entered against Walkup in the amount of $535,817.77, together
with interest and costs.
On June 16, 2016, the Circuit Court of Greenbrier County
granted Walkup’s Petition for Writ of Coram Nobis and reversed
and vacated his underlying criminal conviction based on the
grounds of ineffective assistance of counsel.
On or about April
20, 2017, Walkup filed a Complaint in this court seeking to
vacate the summary judgment ruling.
That case was assigned Civil
Action No. 5:17cv02419 and assigned to Judge Berger.
reviewing Walkup’s filing, by Order entered April 25, 2017, Judge
Berger directed that Walkup’s “complaint” be filed in this case
and dismissed Civil Action No. 5:17cv02419.
To obtain relief from a judgment under Rule 60(b),
a moving party must first show (1) that the motion is
timely, (2) that he has a meritorious claim or defense,
and (3) that the opposing party will not suffer unfair
prejudice if the judgment is set aside. Nat’l Credit
Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir.
1993). The party must also satisfy one of six
enumerated grounds for relief under Rule 60(b). Id. at
United States v. Welsh, No. 17-6355, 2018 WL 386658, *2 (4th Cir.
Jan. 12, 2018).
Federal Rule of Civil Procedure 60(b)(5)(ii)
authorizes relief from a final order if the order “is based on an
earlier judgment that has been reversed or vacated[.]” Relief
from judgment under Rule 60(b) “is extraordinary and is only to
be invoked upon a showing of exceptional circumstances.”
2018 WL 386658 at *5 (quoting Compton v. Alton S.S. Co., 608 F.2d
96, 102 (4th Cir. 1979)).
Denial of a Rule 60(b)(5) motion is
reviewed for abuse of discretion.
See id. at *2 (citing MLC
Auto., LLC v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir.
It seems clear that Walkup is eligible for relief under Rule
60(b)(5)(ii) as the court’s grant of summary judgment in 2002 was
based on Walkup’s conviction that has since been reversed and
Furthermore, the court cannot conclude that Walkup’s
motion is untimely or that Erie will suffer undue prejudice if
the judgment is set aside.
Erie will still be free to move for
summary judgment in this court based upon the evidence offered at
trial and Erie has not identified any undue prejudice it will
suffer as a result of this ruling.
Based upon the foregoing, the
court exercises its discretion and GRANTS Walkup’s motion under
Based on the foregoing, the court hereby ORDERS as follows:
Defendant’s Motion under Rule 60(b)(5) is GRANTED and
the Judgment Order of February 12, 2002, is hereby
If Erie wishes to proceed with this case, it has until
March 14, 2018, in which to file a motion to reinstate
this matter to the court’s active docket.
the matter will remain closed;* and
The hearing scheduled for February 20, 2018, in
Bluefield is CANCELLED.
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record and unrepresented parties.
It is SO ORDERED this 13th day of February, 2018.
David A. Faber
Senior United States District Judge
Counsel for Erie informed the undersigned’s law clerk that
it would not be pursuing this matter further.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?