United States District Court, W.D. North Carolina, Asheville Division
JUDY E. JONES, as Executor of the Estate of Talmage Lee Jones, Jr., Plaintiff,
JASON ANTHONY HIGGINS and G & R TRUCKING COMPANY, INC., Defendants.
L. Howell, United States Magistrate Judge
matter is before the Court on the Motion for Relief from
Judgment (# 104) filed by Jason Anthony Higgins and G & R
Trucking Company, Inc. (hereafter “Defendants”).
The Court held a hearing on the motion on March 30, 2018, and
the issues have been fully briefed. The matter is now ripe
for ruling. For the reasons addressed below, Defendants'
Motion for Relief from Judgment is GRANTED IN PART.
facts relevant to the instant motion are the following: This
action was removed to this Court on December 28,
2016. See Not. Rem. (# 1). The case was
originally assigned to the Honorable Martin Reidinger, United
States District Judge. On June 30, 2017, the parties
consented to the undersigned serving as the presiding judge.
See J. Cons. (# 42.)
February 9, 2018, Defendants G & R Trucking Co., Inc. and
Jason Anthony Higgins, by United States mail, served an Offer
of Judgment on Plaintiff for the sum of $50, 000.00. The
Offer of Judgment stated that “if not accepted within
ten days of service the offer is automatically
withdrawn.” (# 88-1) This Offer was in contravention of
Federal Rule of Civil Procedure 68(a), which allows fourteen
days for acceptance.
February 14, 2018, at 9:52 a.m., Plaintiff's counsel sent
an e-mail to Defendants' counsel stating: “Further
presuming the 50K Offer of Judgment is the most Northland
intends to offer on this case, then please communicate to Mr.
Higgins that the Plaintiff would be willing to accept
Northland's 50K to settle all issues if Mr. Higgins is
willing to pay an additional $25, 000.00 out of his personal
funds for a total settlement of 75K.” (# 98-2)
Defendants' counsel responded on February 14, 2018, at
11:02 a.m., to Plaintiff's attorney as follows: “In
light of your rejection and counteroffer our Offer of
Judgment is withdrawn.” (# 98-2)
next day, February 15, 2018, Defendants' counsel, by
facsimile, sent to Plaintiff's counsel an Offer of
Judgment from only one Defendant, that being G & R
Trucking Co., Inc., which was also in the amount of $50,
000.00. (# 87-1) Again, the Offer of Judgment was in
contravention of Federal Rule of Civil Procedure 68(a), which
allows fourteen days for acceptance and not the ten days as
stated in Offer of Judgment.
February 19, 2018, Plaintiff's counsel filed two
Acceptances, one of each of the two Offers of Judgment. (#
87, 88.) On March 14, 2018, Defendants filed a Motion to Set
Aside Judgment (# 98). A hearing was held on March 16, 2018,
where the Motion to Set Aside Judgment (# 98) was addressed.
On March 19, 2018, this Court entered an Order (# 101), which
explained that for at least two reasons Defendants'
motion would be denied. In particular, first, Defendants were
seeking to set aside a judgment that had not yet been
entered. Second, Defendants' motion failed to comply with
this Court's Local Civil Rule 7.1.
with the two Offers of Judgment, on March 21, 2018, the Clerk
of Court entered Judgment against both Defendants (#
102) in the amount of $50, 000.00 (“First
Judgment”). On the same day, the Clerk also entered
Judgment solely against Defendant G & R Trucking
Co., Inc. (# 103) in the amount of $50, 000 (“Second
Judgment”). The entry of these two judgments was
consistent with the Offers of Judgment served by
Defendants' counsel upon Plaintiff's counsel.
days later, on March 23, 2018, Defendants filed the instant
Motion for Relief from Judgment (# 104). Plaintiff filed a
timely Opposition (# 108). In Defendants' Brief (# 104 at
3) Defendants' counsel states “on March 23, 1018,
Defendants mailed the Plaintiff, via FedEx, a check in the
amount of $50, 000, as full and final satisfaction of the
First Judgment. Also enclosed was a proposed Satisfaction of
Judgment for Plaintiff to file.” On March 30, 2018, the
Court conducted a hearing on Defendants' Motion for
Relief from Judgment (# 104).
obtain relief from a final judgment under Federal Rule of
Civil Procedure 60(b), the movant must show timeliness, a
meritorious defense, a lack of unfair prejudice to the
opposing party, and exceptional circumstances. Werner v.
Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (citing
Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 102
(4th Cir. 1979)). Then, Rule 60(b) allows the court to
“relieve a party or its legal representative from a
final judgment, order, or Compl. (# 1-2) at 4. On November
28, 2016, Plaintiff stated that the amount of monetary relief
sought was $300, 000 to $350, 000. (# 1-1) Ex. A.
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