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David L. Morris, Pamela Morris, and Randy v. Ronald Kesselring

January 31, 2012


The opinion of the court was delivered by: (judge Caputo)


Plaintiffs David, Pamela, and Randy Morris seek to have their case re-opened under Federal Rule of Civil Procedure 60(b)(6). (Doc. 176.) The Morrises argue that Judge Connor, who previously presided over this case, should have recused himself due to his personal animus toward their attorney, Don Bailey. Defendants argue the motion should be denied because this Court does not have jurisdiction since the case is on appeal. Defendants further contend that the motion violates Local Rule 7.5 and the "extraordinary circumstances" required to grant relief under 60(b)(6) are not present. The Court agrees that there are no extraordinary circumstances and will deny the motion.


This suit arose from the termination of a relationship between plaintiff Pamela Morris and defendant Ronald Kesserling. This allegedly led to the Morrises being retaliated against by the defendants -- members and associates of the Hanover Police Department who worked with Mr. Kesserling's brother -- in order to harass and intimidate them and deprive them of their constitutional rights. The Morrises originally initiated this suit on September 9, 2009 (Doc. 1) and then filed an amended complaint on February 2, 2010 (Doc. 45). In the amended complaint, the Morrises added Mr. Strausbaugh and Mr. Barney and alleged that the two conspired with the other defendants to retaliate against the Morrises for filing their initial complaint by threatening to have them arrested if they used Messrs. Strausbaugh's and Barney's driveway.

Defendants then filed a number of motions to dismiss as well as a motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). Judge Conner referred these motions to Magistrate Judge Prince, who granted the motion for a more definite statement. Citing the "sweeping statements and generalized allegations" of the amended complaint as well as the fact that "those averments [in the amended complaint] containing facts are devoid of particularized details as to time and date, person(s) involved, and other basic tenants of proper notice pleading," the Magistrate Judge ordered plaintiffs to "provide factual information corresponding to the allegations of the amended complaint" when submitting further pleadings. (Doc. 102.) The Magistrate Judge also advised the Morrises to seek the assistance of additional counsel. The Morrises filed objections and sought to have the order struck on the grounds that it was an impertinent personal attack on the Morrises' counsel. Judge Connor denied the objections and ordered the Morrises to file their second amended complaint by December 28, 2010. (Doc. 107.) However, in their second amended complaint, they refused to heed the directive of Magistrate Judge Prince and the order of Judge Conner. They submitted a second amended complaint with factual allegations identical to those of the amended complaint. After the second amended complaint was filed, several motions to dismiss were filed by defendants (Docs. 117, 119, 123, 126, 127), including a motion to dismiss pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a court order. In May 2011, the Court granted the 41(b) motion and dismissed the case. The Morrises then filed a motion for reconsideration which the Court denied.

In December 2011, the Morrises filed a motion to open judgment. The motion was not signed by an attorney nor did the Morrises file a supporting brief -- a violation of Local Rule 7.5. Several days later, the Morrises filed a notice of appeal with the assistance of their counsel, Don Bailey. Defendants then filed a brief in opposition to the motion to open judgment.

The Morrises argue in their motion to open judgment that the case should be reopened because Judge Connor was biased against their attorney, Don Bailey. They claim Judge Connor's testimony at Mr. Bailey's disciplinary hearing and his orchestration of that hearing demonstrate a long standing personal animus toward Mr. Bailey. The motion has been briefed and is ripe for review.


The motion to open judgment will be denied. There are no factual allegations of prejudice from an "extra-judicial source" that would have warranted Judge Connor to recuse himself under 28 U.S.C. § 455(a) or that require the Court to grant relief under 60(b)(6)'s "exceptional circumstances" doctrine.

Once a notice of appeal is filed, jurisdiction is no longer vested in the district court. Bensalem Twp. v. Int'l Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (internal citation omitted). Under Fed. R. Civ. P. 62.1:

If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the ...

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