United States District Court, D. Delaware
Moskow-Schnoll, Ballard Spahr LLP, Wilmington, Delaware,
Attorney for Plaintiff.
Cherry, Parkland, Florida, Pro Se Defendant.
U.S. District Judge
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.
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)
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.
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)
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).
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
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 ...