United States District Court, M.D. Pennsylvania
Malachy E. Mannion United States District Judge
31, 2018, the court issued a Memorandum and Order, (Docs. 3
and 4), and denied pro se plaintiff Amy Kush's
request for immediate injunctive relief seeking to prevent
the August 3, 2018 Sheriff's sale of her property. (Doc.
1). The court also dismissed with prejudice plaintiff's
due process claims in her complaint since the court lacked
jurisdiction over them. Further, the court directed the
plaintiff to file an amended complaint regarding only her
Fourteenth Amendment equal protection claim and her First
Amendment retaliation claim, under 42 U.S.C.
plaintiff filed an amended complaint on September 20, 2018.
(Doc. 11). Thereafter, motions to dismiss plaintiff's
amended complaint under Fed.R.Civ.P. 12(b)(6) were
filed by defendants Wilkes-Barre Hospital Company, LLC, (Doc.
19), Bayview Loan Servicing, (Doc. 23), and the Diocese of
Scranton, (Doc. 42).
April 30, 2019, Judge Arbuckle issued three reports and
recommendations regarding the motions to dismiss filed by
Wilkes-Barre Hospital Company, LLC, (“WB
Hospital”), (Doc. 54), Bayview Loan Servicing,
(“BLS”), (Doc. 55), and by the Diocese of
Scranton, (Doc. 56). Judge Arbuckle recommended that all
three motions to dismiss be granted and, that all of the
claims against these defendants be dismissed without
affording plaintiff further leave to amend her claims.
6, 2019, the court adopted the three reports of Judge
Arbuckle. The court granted WB Hospital's motion to
dismiss, (Doc. 19), the claims against it in plaintiff's
amended complaint, (Doc. 11), granted BLS's motion to
dismiss, (Doc. 23), the claims against it, and granted the
Diocese of Scranton's motion to dismiss, (Doc. 42), the
claims against it. The court also dismissed these three
defendants with prejudice.
19, 2019, Judge Arbuckle issued a report recommending that
defendants Luzerne County Sheriff and the Law Firm of McCabe
Weisburg & Conway be dismissed without prejudice,
pursuant to Fed.R.Civ.P. 4(m), since plaintiff failed to
timely serve them as directed by the court.
10, 2019, the court issued a Memorandum and Order and
dismissed the stated two remaining defendants and, closed the
case. (Docs. 68 & 69).
August 7, 2019, plaintiff Kush filed a motion to open
judgment combined with a so-called “Renewed Motion for
TRO and Preliminary Injunctive Relief.” (Doc. 70).
Plaintiff attached exhibits to her motion.
on the following, plaintiff's motion to open judgment
will be DENIED. Plaintiff's
“Renewed Motion for TRO and Preliminary Injunctive
Relief” will be DENIED AS MOOT.
plaintiff does not reference under which Rule her motion is
filed, it will be construed as a motion for relief from
judgment under Fed.R.Civ.P. 60(b). Rule 60(b) of the
Federal Rules of Civil Procedure provides a limited avenue of
relief where a final judgment or order has been entered in a
case based on one or more 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 discharged; or
applying it prospectively is no longer equitable; or (6) any
other reason that justifies relief.
considering a Rule 60(b) motion, “any time a [ ] court
enters a judgment, even one dismissing a case by stipulation
of the parties, it retains, by virtue of Rule 60(b),
jurisdiction to entertain a later motion to vacate the
judgment on the grounds specified in the rule.”
Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir.
1993) (alterations and internal quotation marks
omitted). A motion brought under Fed.R.Civ.P. 60(b)
“is directed to the sound discretion of the trial
court.” Pierce Assocs., Inc. v. Nemours Found., 865
F.2d 530, 548 (3d Cir. 1988).
general purpose of Rule 60(b) is to strike a proper balance
between the conflicting principles that litigation must be
brought to an end and that justice must be done.”
Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 271 (3d
Cir. 2002) (alterations and internal quotations marks
omitted). Relief pursuant to Rule 60(b) is
“extraordinary relief which should be granted only
where extraordinary justifying circumstances are
present.” Bohus v. Beloff, 950 F.2d 919, 930 (3d
Cir. 1991). See also Curran v. Howmedica
Osteonics, 425 Fed.Appx. 164, 166 (3d Cir. 2011) (The
Third Circuit has held that “[b]ecause parties have a
strong interest in the finality of judgments, ‘[t]his
Court has ... cautioned that relief from a judgment under
Rule 60 should be granted ...