2:11-cv-06238
E.D.N.YMar 23, 2013Background
- Plaintiff Leviton sues Defendants for breach of contract, fraud, and negligent misrepresentation.
- Earlier, Court granted Attorney Defendants' motion to dismiss for lack of personal jurisdiction; Reeves Defendants' motions were denied in part and granted in part.
- Attorney Defendants were dismissed with prejudice due to lack of jurisdiction; Reeves Defendants were found subject to personal jurisdiction based on a forum selection clause.
- Plaintiff moved under Rule 60(b) to amend the order to dismiss the Attorney Defendants without prejudice.
- Reeve Defendants failed to answer by deadline, prompting a request for Clerk’s Certificate of Default, which was later denied after they filed answers and sought extensions.
- Court granted extensions for Reeves to file answers and issued a concluding order changing the Attorney Defendants’ dismissal to without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Attorney Defendants’ dismissal should be without prejudice | Leviton argues dismissal on lack of jurisdiction cannot be with prejudice. | Attorney Defendants contend dismissal must be with prejudice due to merits. | Dismissal without prejudice for lack of jurisdiction. |
| Whether a Clerk’s Certificate of Default was appropriate | Leviton seeks default for Reeves for failure to answer. | Reeves filed answers and sought extensions, rendering default improper. | Certificate of Default denied; extensions granted. |
| Whether Reeves' extensions to file answers were properly granted | Leviton contends extensions were untimely and prejudicial. | Reeves showed illness and good cause, justifying extensions. | Extensions to file answers granted. |
Key Cases Cited
- Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (standard for reconsideration and exceptional circumstances)
- Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245 (2d Cir. 1992) (intervening change in controlling law and policy considerations)
- Nemaizer v. Baker, 793 F.2d 58 (2d Cir. 1986) (exceptional circumstances required for Rule 60(b) relief)
- Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6 (2d Cir. 1987) (requirements of Rule 60(b) movant showing good cause)
- Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130 (2d Cir. 2000) (standards for relief from final judgment under Rule 60(b))