United States District Court, W.D. North Carolina, Asheville Division
ROBERT V. WILKIE, Individually and as Executor of the Estate of Judith Kathryn Sellers Wilkie, Plaintiff,
AMICA MUTUAL INSURANCE COMPANY, Defendant.
Reidinger United States District Judge
MATTER is before the Court on the Plaintiff's
Motion to Vacate Judgment [Doc. 23].
November 16, 2017, the Plaintiff, proceeding pro se,
filed a Complaint on behalf of himself individually and as
Executor of the Estate of Judith Kathryn Sellers Wilkie.
[Doc. 1]. In the Complaint, the Plaintiff asserts claims for
negligence, “bad and deceptive business practices,
” exploitation of a person for profit during a tragic
event, bid rigging, fraud, breach of contract and other
claims against Amica Mutual Insurance Company
(“Amica”). [Id. at 6]. The
Plaintiff's claims arose out of a fire loss, including
the Plaintiff's fire insurance claim with Amica,
remediation efforts by Dolbier Restoration, LLC, and the
Plaintiff's settlement of that insurance claim. [Doc. 1;
see also Doc. 14 at 2]. The Plaintiff admitted in
the Complaint that he engaged in a mediated settlement
conference; that such mediation resulted in a
“Memorandum of Mediated Settlement” requiring
Amica to pay $10, 400; and that such sum was paid by Amica
and received by the Plaintiff. [Doc. 1; Doc. 14 at 2].
Defendant filed a Motion to Dismiss on February 13, 2018.
[Doc. 10]. On April 30, 2018, the Honorable Dennis L. Howell,
United States Magistrate Judge, entered a Memorandum and
Recommendation, recommending that the Plaintiff's
Complaint be dismissed for failing to state viable legal
claims for negligence, fraud, or under the Sherman Act.
[Id. at 4-5]. Judge Howell further recommended that
the Plaintiff's claims for unfair trade practices and
breach of contract be dismissed on the grounds that such
claims were barred by the doctrine of accord and satisfaction
by virtue of the Mediated Settlement Agreement. [Id.
at 8-9]. Therefore, the Court recommended that the
Defendant's Motion to Dismiss be granted and the case be
Memorandum and Recommendation stated that objections to the
findings of fact, conclusions of law and recommendation must
be filed within fourteen (14) days of service.
[Id.]. The Clerk's Office served the Plaintiff
with a copy of the Memorandum and Recommendation. The
Plaintiff, however, did not file any objections. On May 22,
2018, the Court entered an Order accepting the Magistrate
Judge's recommendation that the Motion to Dismiss should
be granted. [Doc. 15]. Therefore, the Court dismissed
Plaintiff's action with prejudice, and a Judgment was
entered thereafter. [Doc. 16].
September 12, 2018, four months after the Judgment was
entered dismissing his action, the Plaintiff filed a
“Motion to Take Judicial Notice” in which he
cited irrelevant case law and moved the Court “to take
Judicial Notice of Stare decises” when ruling on his
pleading. [Doc. 18]. Nowhere in that motion did he try to
argue that the Memorandum and Recommendation was factually or
legally erroneous. On September 13, 2019, the Court entered
an Order striking the Plaintiff's Motion to Take Judicial
Notice. [Doc. 21]. Thereafter, the Plaintiff did nothing for
eight months until he filed the present Rule 60 Motion on May
17, 2019. [Doc. 23].
STANDARD OF REVIEW
is a well settled principle of law that a Rule 60(b) motion
seeking relief from a final judgment is not a substitute for
a timely and proper appeal.” Dowell v. State Farm
Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th
Cir. 1993). To seek relief under Rule 60(b), a plaintiff 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) (footnote omitted). “After a
party has crossed this initial threshold, [it] then must
satisfy one of the six specific sections of Rule
60(b).” Wells Fargo Bank, N.A. v. AMH Roman Two NC,
LLC, 859 F.3d 295, 299 (4th Cir. 2017) (citation
omitted). Here, the Plaintiffs seek relief from the judgment
under Rule 60(b)(1) for “mistake, inadvertence,
surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1).
Plaintiff offers no explanation in his Motion or supporting
materials for his decision to wait until almost a year after
the Judgment to file this Rule 60 Motion. In his Affidavit,
he states that he had a response to the Memorandum and
Recommendation prepared, but he had a “severe foot
infection” which prevented him from walking for some
period of time. [Doc. 23-1]. As a result, he relied “on
a local man to carry [his] response to the local post office,
” but “instead of delivering it to the post
office [the man] discarded the response.”
[Id.]. While that claim may explain why the
Plaintiff failed to timely file his objections to the
Memorandum and Recommendation, it does not explain why he
waited nearly a year after the entry of judgment to file the
present Rule 60 Motion.
it is somewhat difficult to discern from the Rule 60 Motion,
the Plaintiff appears to be trying to re-litigate many of the
same claims that were dismissed in May 2018. His so-called
“meritorious claims” are essentially claims that
Amica did not handle his insurance claim correctly.
Substantially all of these allegations appear in some form in
the original Complaint, including claims for negligence,
unfair trade practices, bid rigging, fraud, and breach of
contract. [See Doc. 1]. In the original Complaint,
the Plaintiff alleged that Amica changed language in the
settlement agreement; now the Plaintiff claims that Amica
copied and pasted his name to the Release. Regardless of the
nature of the Plaintiff's fraud allegations, the
Plaintiff would have been aware any irregularities in the
Release when he filed the original Complaint in November 2017
and should have brought all of those claims at that time.
are no new or “meritorious” claims arising out of
Plaintiffs fire insurance claim that either were not settled
in the original Mediated Settlement Agreement or dismissed by
this Court in May 2018. As such, the Plaintiff has failed to
show that he has “meritorious claims” and has
failed to show any exceptional circumstances warranting
setting aside the Judgment dismissing his original Complaint.
the Plaintiff has failed to establish a legal basis for
vacating the Judgment in this case pursuant to Rule 60(b)(1).
Accordingly, the ...