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Chase Bank USA, N A. v. Cherry

United States District Court, D. Delaware

August 14, 2017

CHASE BANK USA, N A., Plaintiff,
v.
EDWARD CHERRY a/k/a EDWARD T. KENNEDY, Defendant.

          Beth Moskow-Schnoll, Ballard Spahr LLP, Wilmington, Delaware, Attorney for Plaintiff.

          Edward Cherry, Parkland, Florida, Pro Se Defendant.

          MEMORANDUM OPINION

          STARK, U.S. District Judge

         I. INTRODUCTION

         On March 29, 2016, the Court entered judgment in favor of Plaintiff Chase Bank USA, N.A. ("Chase"), and against Defendant Edward Cherry, a/k/a Edward Kennedy, and n/k/a Edward Gregory Steadman ("Cherry"). (D.I. 275) Before the Court is Cherry's motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), opposed by Chase. (D.I. 282) For the reasons discussed below, the Court will deny the motion.

         II. BACKGROUND

         On July 29, 2015, the Court granted Chase's motion for summary judgment against Cherry. (D.I. 259, 260) On August 17, 2015, Chase moved for entry of judgment against Cherry. (D.I. 262) Cherry opposed the motion and requested an evidentiary hearing. (D.I. 263) The matter was initially set for an evidentiary hearing on February 26, 2016, continued, and ultimately heard on March 11, 2016. (D.I. 265, 269, 272)

         Cherry did not appear at the hearing. On March 9, 2016, the Court was advised by Chase's counsel that Cherry was in the custody of the United States Marshal Service ("USMS") in the United States Bankruptcy Court for the Southern District of Florida, following entry of a March 2, 2016 order by the Bankruptcy Court sanctioning Cherry for civil contempt and remanding him to the custody of the USMS. (See D.I. 273; see also In Re Cherry, Bankr. Case No. 12-24343-BKC-JKO (Bankr. S.D. Fl. Mar. 2, 2016) at D.I. 474) On March 15, 2016, the Bankruptcy Court held a hearing on Defendant's motion for an order purging the civil contempt and, following the hearing, the Bankruptcy Court entered an order that purged the contempt and released Defendant from the custody of the USMS. In Re Cherry, at D.I. 478, 479, 488. At no time did Cherry advise this Court of the reason for his non-appearance at the hearing that was held upon his request. Nor did Cherry ever request a continuance of the hearing.

         On March 29, 2016, the Court entered judgment in favor of Chase and against Cherry in the amount of $47, 674, 813.90. (D.I. 275) On April 28, 2016, Cherry filed a notice of appeal from the March 29, 2016 judgment. (D.I. 277) On August 12, 2016, the United States Court of Appeals for the Third Circuit entered a briefing and scheduling order for Cherry to file and serve his brief on or before September 21, 2016. Cherry did not do so and, on October 27, 2016, the appellate court dismissed the appeal for Cherry's failure to timely prosecute. (D.I. 279) On March 2, 2017, Cherry filed the instant motion for relief from judgment pursuant to Fed.R.Civ.P. 60. (D.I. 282)

         Cherry moves for relief pursuant to Fed.R.Civ.P. 60, but his motion does not indicate under which subsection he proceeds. The motion asserts that an injunction was improperly entered in this case and that the Court lacked jurisdiction. It also contends that the damages award was procured by fraud on the Court. In this regard Cherry presumably relies upon Rule 60(b)(3). Finally, Cherry contends that the judgment is void, a ground for relief as set forth in Rule 60(b)(4).

         III. LEGAL STANDARDS

         Rule 60(b) provides that a party may file a motion for relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence by which due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

         A motion filed pursuant to Rule 60(b) is addressed to the sound discretion of the trial court, guided by accepted legal principles applied in light of all relevant circumstances. See Pierce Assoc, Inc. v. Nemours Found., 865 F.2d 530, 548 (3d Cir. 1988). A motion filed under Rule 60(b) must be made within a reasonable time and, for motions under Rule 60(b)(1), (2), and (3), must be filed no more ...


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