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Clair v. Wertzberger

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


August 12, 2009

DONALD ST. CLAIR, PLAINTIFF,
v.
PINA WERTZBERGER, ESQ., MICHAEL J. MILSTEAD, ESQ., AND NELSON DIAZ, ESQ., DEFENDANTS.

The opinion of the court was delivered by: Hillman, District Judge

OPINION

This matter has come before the Court on plaintiff's motion to vacate the Court's June 26, 2009 Opinion and Order granting defendants' motion to dismiss plaintiff's complaint. Plaintiff, Donald St. Clair, proceeding pro se, claimed that the defendant attorneys violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., in their prosecution of the foreclosure of plaintiff's home in New Jersey state court. Plaintiff claimed that defendants violated the FDCPA by pursuing the foreclosure action despite plaintiff, pursuant to 15 U.S.C. § 1692(g), sending defendants a letter disputing the validity of the debt within thirty days of receiving the FDCPA notice from defendants.

The Court dismissed plaintiff's complaint on the basis that the Court was required to abstain from hearing plaintiff's case pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). The Court found that because (1) the state court first obtained jurisdiction, (2) the state court has jurisdiction over the res, plaintiff's home, which is located in New Jersey, (3) the foreclosure action is parallel to this case, (4) the foreclosure action has not yet come to final judgment, (5) plaintiff's rights and claims may still be vindicated in the foreclosure action or through the state appellate process, and (6) a ruling in this court on plaintiff's claims would unnecessarily cause havoc with the rulings of the state court, this Court was required to abstain from hearing plaintiff's case and dismiss it without prejudice. The Court also stated that plaintiff may refile his claims in this Court once his state court action has reached a final resolution, if appropriate.

Plaintiff seeks to vacate the Court's findings pursuant to Federal Civil Procedure Rule 60(b). Rule 60(b) provides,

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for 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 vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

This Rule "does not particularize the factors that justify relief," but the Supreme Court has "previously noted that it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,' Klapprott v. United States, 335 U.S. 601, 614-615 (1949), while also cautioning that it should only be applied in 'extraordinary circumstances,' Ackermann v. United States, 340 U.S. 193 (1950)." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-864 (1988); see also U.S. v. Tuerk, 317 Fed. Appx. 251, 253 (3d Cir. 2009) (quoting Mayberry v. Maroney, 529 F.2d 332, 336 (3d Cir. 1976)) (stating that "relief under Rule 60(b) is 'extraordinary,' and 'may only be invoked upon a showing of exceptional circumstances'").

In plaintiff's motion to vacate, it appears that plaintiff disagrees with the Court's reasoning for exercising its discretion to abstain from hearing plaintiff's case while the foreclosure action is still pending. Plaintiff, however, does not demonstrate any of the Rule 60(b) factors, and he does not show why he should be entitled to the extraordinary relief provided by the Rule.*fn1

Accordingly, plaintiff's motion to vacate the Court's Opinion and Order dismissing his complaint must be denied.

An appropriate Order will be entered.

NOEL L. HILLMAN, U.S.D.J.


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