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Kush v. Bayview Loan Servicing

United States District Court, M.D. Pennsylvania

August 13, 2019

AMY KUSH, Plaintiff
BAYVIEW LOAN SERVICING, et al., Defendants


          Malachy E. Mannion United States District Judge

         I. BACKGROUND [1]

         On July 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. §1983.

         The 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).

         On 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.

         On June 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.

         On June 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.

         On July 10, 2019, the court issued a Memorandum and Order and dismissed the stated two remaining defendants and, closed the case. (Docs. 68 & 69).

         On 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.

         Based 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.


         Although 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.

         In 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).

         “The 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 ...

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