Rossetti et al v. Fidelity National Indemnity Insurance Company

REPLY BRIEF to Opposition to Motion

D.N.J.August 22, 2016

STRADLEY, RONON, STEVENS &YOUNG, LLP A Pennsylvania Limited Liability Partnership By: Eric M. Hurwitz, Esquire Adam J. Petitt, Esquire 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002 T: (856) 321-2400 F: (856) 321-2415 E: EHurwitz@Stradley.com; APetitt@Stradley.com Attorneys for Defendant, Selective Insurance Company of America IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Camden Vicinage) THOMAS ROSETTI AND YANA ROSETTI, Plaintiffs, v. SELECTIVE INSURANCE COMPANY OF AMERICA, Defendant. : : : : : : : : : : : No. 1:15-cv-05737-RBK-KMW REPLY BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Motion Day: August 15, 2016 Filed Electronically Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 1 of 12 PageID: 370 i TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 1 II. ARGUMENT ................................................................................................... 2 A. Plaintiffs’ Concession That They Cannot Prove That They Submitted a Timely, Unpaid Proof of Loss is Fatal to Their Claim ..... 2 B. Only Congress Can Change the Proof of Loss Requirement ................ 5 III. CONCLUSION ................................................................................................ 8 Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 2 of 12 PageID: 371 ii TABLE OF AUTHORITIES CASES Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................................................... 2, 4 Flick v. Liberty Mut. Ins. Co., 205 F.3d 386 (9th Cir. 2000) (applying Richmond to Proof of Loss Requirement in SFIP) ........................................................................................... 6 Gowland v. Aetna, 143 F.3d 951 (5th Cir. 1998) ................................................................................ 1 Linbald v. Nationwide Mut. Ins. Co., Civ. No. 14-908, 2016 WL 614407 (D.N.J. Feb. 16, 2016) ............................. 6-7 Linder & Assocs., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547 (3d Cir. 1999) ................................................................................. 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .............................................................................................. 4 Messa v. Omaha Property & Cas. Ins. Co., 122 F. Supp. 2d 523 (D.N.J. 2000) ....................................................................... 4 Office of Personnel Mgmt. v. Richmond, 496 U.S. 414 (1990) .............................................................................................. 6 Psychiatric Solutions, Inc. v. Fed. Emergency Mgmt. Agency, 101 F. Supp. 3d 490 (E.D. Pa. 2015) .................................................................... 3 Scritchfield v. Mut. of Omaha Ins. Co., 341 F. Supp. 2d 675 (E.D. Tex. 2004) .................................................................. 6 Suopys v. Omaha Prop. & Cas., 404 F.3d 805 (3d Cir. 2005) ............................................................................. 2, 3 Van Holt v. Liberty Mutual Fire Ins. Co., 163 F.3d 161 (3d Cir. 1998) ................................................................................. 1 Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 3 of 12 PageID: 372 iii STATUTES 42 U.S.C. §4017(a)(1) ................................................................................................ 1 42 U.S.C. §4071(d)(1)................................................................................................ 1 44 C.F.R. §62.23(f) .................................................................................................... 1 RULES FED. R. CIV. P. 56(c)(1) .......................................................................................... 1, 5 FED. R. CIV. P. 56(e)(3) .............................................................................................. 5 FED. R. CIV. P. 60(b) ................................................................................................... 6 CONSTITUTIONAL PROVISIONS Appropriations Clause of the United States Constitution .......................................... 6 Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 4 of 12 PageID: 373 Defendant, Selective Insurance Company of America (“Selective”), appearing in its fiduciary1 capacity as the fiscal agent2 of the United States and at the expense of the United States Treasury,3 respectfully submits this Reply Brief in support of its Motion for Summary Judgment. I. INTRODUCTION In its initial Statement of Uncontested Material Facts [Dkt. No. 22-1] and Memorandum of Law [Dkt. No. 22-5], Selective demonstrated that no genuine issue of material fact exists because Plaintiffs did not satisfy their SFIP’s4 strict Proof of Loss Requirement, and therefore their claim is barred. Remarkably, Plaintiffs now concede that they cannot prove they complied with the Proof of Loss Requirement. Equally as fatal, Plaintiffs do not put forward any record evidence creating a material fact in dispute as required by FED. R. CIV. P. 56(c)(1). Instead, they cite to inapplicable standards under commercial insurance policies governed by state law, and plead for leniency to forego the Proof of Loss Requirement. The Proof of Loss requirement, however, is mandated by federal law, and there is no leniency exception. 1 See 44 C.F.R. §62.23(f). 2 See 42 U.S.C. §4071(a)(1); Gowland v. Aetna, 143 F.3d 951 (5th Cir. 1998). 3 See 42 U.S.C. §4017(d)(1); Van Holt v. Liberty Mutual Fire Ins. Co., 163 F.3d 161 (3d Cir. 1998). 4 The other defined terms from Selective’s Motion for Summary Judgment and supporting documents retain their definitions here unless otherwise noted. Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 5 of 12 PageID: 374 - 2 - Accordingly, because Plaintiffs concede they cannot prove an essential element of their case and otherwise fail to mount a credible opposition to Selective’s Motion and demonstrate a triable issue of fact, Selective is entitled to summary judgment in its favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986) (“The plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”). II. ARGUMENT A. Plaintiffs’ Concession That They Cannot Prove That They Submitted a Timely, Unpaid Proof of Loss is Fatal to Their Claim. Plaintiffs cannot recover under the SFIP without complying with the Proof of Loss Requirement. See Suopys v. Omaha Prop. & Cas., 404 F.3d 805, 806 (3d Cir. 2005) (holding that a failure to strictly adhere to the SFIP’s Proof of Loss Requirement bars recovery for claimant). For SFIP policyholders claiming damage from Hurricane Sandy, FEMA extended the proof of loss deadline to October 29, 2014. (See Selective’s Mem. at 4.) Plaintiffs candidly admit that they cannot prove they met this requirement, stating: “Plaintiffs concede that they cannot prove that they submitted a revised or supplemental proof of loss prior to October 29, 2014.” (Pls.’ Mem. at 1.) Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 6 of 12 PageID: 375 - 3 - This admission should end the analysis and result in the entry of summary judgment in favor of Selective. Instead, however, Plaintiffs curiously assert that it was not their burden to prove compliance with the Proof of Loss requirement. (Id. at 1–2.) Plaintiffs apparently contend that this Court should ignore the statutes and regulations contained in the SFIP, and overwhelming case law (including binding Third Circuit authority) reaching precisely the opposite conclusion. (See Selective’s Mem. at 12–15.) Plaintiffs bear the burden to demonstrate compliance with all of the requirements of the SFIP, including the Proof of Loss Requirement.5 See Suopys, 404 F.3d at 810 (“The SFIP places the onus on the insured to file the proof of loss . . . .”); see also Psychiatric Solutions, Inc. v. Fed. Emergency Mgmt. Agency, 101 F. Supp. 3d 490, 494 (E.D. Pa. 2015) (“The SFIP places the burden on the insured to follow all of the requirements listed by the SFIP when filing a [Proof of Loss].”) (citing Suopys, 404 F.3d at 810)). Therefore, to prevail at trial, Plaintiffs must prove they complied with the SFIP’s Proof of Loss Requirement, a burden they 5 Plaintiffs’ selections of state law authority analyzing property and automobile policies, and references to a “typical analysis” thereunder (see Pls.’ Mem. at 1), are irrelevant to any application of the terms of the SFIP, which is a codified statute and is interpreted according to federal common law. See Suopys, 404 F.3d at 809 (“Federal common law governs the interpretation of the SFIP.”) (citing Linder & Assocs., Inc. v. Aetna Cas. & Sur. Co., 166 F.3d 547, 550 (3d Cir. 1999) (“It is well-settled that federal common law governs the interpretation of the SFIP at issue here.”)). Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 7 of 12 PageID: 376 - 4 - concede they cannot carry. (See Pls.’ Mem. at 1.) Selective is accordingly entitled to summary judgment in its favor for this reason alone. See Celotex Corp., 477 U.S. at 322–23 (explaining that a “complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial”). Moreover, contrary to Plaintiffs’ argument, their failure to prove whether they submitted a timely, unpaid proof of loss does not create a question of material fact. See Messa v. Omaha Property & Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (“Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, ‘its opponent must do more than simply show that there is some metaphysical doubt as to material facts.’” (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Here, Selective provided an affidavit of Stephen Weber, explaining that Plaintiffs did not submit a proof of loss for any of the amounts they are now seeking in this action. In fact, Selective’s evidence of Plaintiffs’ failure to comply with the Proof of Loss Requirement is embodied in the entire factual record—a factual record that does not contain any unpaid proof of loss submitted by Plaintiffs. Unless Plaintiffs can come forward with evidence suggesting that they did in fact submit a proof of loss—which they have not done—Plaintiffs do not create an issue of fact. An unrebutted affidavit is sufficient to prove the absence of a genuine issue of Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 8 of 12 PageID: 377 - 5 - material fact and can serve as grounds for summary judgment. See FED. R. CIV. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular materials in the record, including . . . affidavits or declarations . . .” (emphasis added); see also FED R. CIV. P. 56(e)(3) (“If a party . . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment . . . .”).6 That is precisely the situation here, and Selective is entitled to summary judgment. B. Only Congress Can Change the Proof of Loss Requirement. Because Plaintiffs admit that they cannot prove they submitted a proof of loss, Plaintiffs resort to asking the Court to find that “extraordinary circumstances should relie[ve] Plaintiffs of the obligation of submitting a revised proof of loss to Defendant in the absence of a showing of actual prejudice.” (Pls.’ Mem. at 3.) Respectfully, the Court cannot waive the Proof of Loss Requirement—even under purportedly “extraordinary circumstances”—because to do so would usurp 6 By arguing that this Court cannot grant summary judgment on the basis of an affidavit, while simultaneously failing to offer record evidence contradicting the affidavit, Plaintiffs are essentially relying on their Amended Complaint to establish an issue of material fact. (See Am. Compl. at ¶ 6, Dkt. No. 6) (“Notice of Plaintiffs’ covered loss was given to Defendant in a timely manner and Plaintiffs have done and otherwise performed all things required of them under the policy of insurance issued by Defendant.”).) But Rule 56(e) was amended in 1963 specifically to stop non-movants from defeating summary judgment by pointing to factual averments contained in their pleadings without producing “any evidentiary matter” in order to create factual issues. See FED. R. CIV. P. 56(e)(3) advisory committee note. Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 9 of 12 PageID: 378 - 6 - Congress’ authority under the Appropriations Clause of the United States Constitution. See, e.g., Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 428 (1990) (explaining that, where federal funds are at stake, the Appropriations Clause assures “that public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good and not according to . . . the individual pleas of litigants”); see also Flick v. Liberty Mut. Ins. Co., 205 F.3d 386, 391–95 (9th Cir. 2000) (applying Richmond to Proof of Loss Requirement in SFIP); Scritchfield v. Mut. of Omaha Ins. Co., 341 F. Supp. 2d 675, 681 (E.D. Tex. 2004) (“While this interpretation might seem harsh, the court must respect congressional intent as to when to charge the public treasury.”). There simply is no discretion when it comes to the Proof of Loss Requirement, and Plaintiffs do not and cannot point to authority providing them with any. Finally, although Plaintiffs’ predicament appears to have been caused by their prior counsels’ actions, their recourse is not through Selective and (by extension) the United States Treasury. Plaintiffs’ analogy to FED R. CIV. P. 60(b) is misplaced because relief from a judgment still requires the movant to demonstrate the plausibility of success on the merits, even under the identical “extraordinary circumstances” that Plaintiffs face. In Linbald v. Nationwide Mut. Ins. Co., this Court held that relief under Rule 60(b) from a dismissal attributable to the Voss Law Firm’s or Harbatkin & Levasseur, P.A.’s neglect was only Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 10 of 12 PageID: 379 - 7 - warranted if the plaintiff could “demonstrate that she has a meritorious claim” under the SFIP. Civ. No. 14-908 (NLH/KMW), 2016 WL 614407, at *4 (D.N.J. Feb. 16, 2016).7 The Court explained that “[o]pening this matter only to dismiss a less than colorable claim would not only be an act of futility but also work an injustice on the defendant . . . . Accordingly, Plaintiff must . . . submit all necessary information to maintain her suit including proof that all prerequisites have been met.” Id. (emphasis added). Plaintiffs concede they cannot submit this proof. Selective is therefore entitled to summary judgment on these bases as well. 7 A copy of the unpublished opinion, Linbald v. Nationwide Mut. Ins. Co., Civ. No. 14-908 (NLH/KMW), 2016 WL 614407 (D.N.J. Feb. 16, 2016), is attached as Exhibit 1. Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 11 of 12 PageID: 380 - 8 - III. CONCLUSION For the foregoing reasons, and for the reasons set forth in Selective’s Motion for Summary Judgment and supporting documents and exhibits, Selective respectfully requests that the Court grant its Motion for Summary Judgment, enter judgment in its favor and against Plaintiffs, dismiss the Complaint with prejudice, and award such other relief to which Selective is entitled. /s/ Adam J. Petitt Eric M. Hurwitz, Esquire Adam J. Petitt, Esquire STRADLEY, RONON, STEVENS & YOUNG, LLP A Pennsylvania Limited Liability Partnership 457 Haddonfield Road, Suite 100 Cherry Hill, NJ 08002 T: (856) 321-2400 F: (856) 321-2415 E: EHurwitz@Stradley.com; APetitt@Stradley.com Attorneys for Defendant, Selective Insurance Company of America Dated: August 22, 2016 Case 1:15-cv-05737-RBK-KMW Document 27 Filed 08/22/16 Page 12 of 12 PageID: 381 EXHIBIT 1 Case 1:15-cv-05737-RBK-KMW Document 27-1 Filed 08/22/16 Page 1 of 5 PageID: 382 Linbald v. Nationwide Mutual Insurance Company, Slip Copy (2016) 2016 WL 614407 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 614407 Only the Westlaw citation is currently available. United States District Court, D. New Jersey. Emma Linbald, Plaintiff, v. Nationwide Mutual Insurance Company, Defendant. Civil No. 14-908 (NLH/KMW) | Signed 02/16/2016 Attorneys and Law Firms Audwin F. Levasseur, The Law Offices of Harbatkin & Levasseur, PA, 616 E. Palisade Ave, Suite 102, Englewood Cliffs, NJ 07024 Attorney for Plaintiff. Daniel W. Ballard, Claims Worldwide, LLC, 1240 Old York Road, Suite 101, Warminster, PA 18974 Attorney for Plaintiff. Catherine S. Straggas, Margolis Edelstein, The Curtis Center, Suite 400E, 170 S. Independence Mall West, Philadelphia, PA 19106 Attorney for Defendant. OPINION HILLMAN, District Judge This matter comes before the Court by way of Plaintiff's motion to set aside judgment pursuant to Fed. R. Civ. P. 60(b)(6) based on the alleged neglectful representation by her former counsel in Superstorm Sandy related litigation. The Court has considered the parties' submissions, and decides this matter pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Plaintiff's motion will be denied without prejudice. I. BACKGROUND According to the allegations in the complaint, Plaintiff Emma Linbald purchased a Standard Flood Insurance Policy (“SFIP”), policy number 99050775302012, for her residential property located at 9 North Sacramento Avenue, Ventnor, New Jersey. (Compl. ¶ 5.) Nationwide issued the policy in accordance with the National Flood Insurance Program (“NFIP”). (Id.) Plaintiff avers that she paid “all related premiums in a timely fashion.” (Id. ¶ 6.) On October 29, 2012, within the policy period, Superstorm Sandy struck Ventnor, New Jersey, purportedly causing catastrophic damage to her property. (Id. ¶¶ 5, 6.) Plaintiff made a claim for damages, but contends Nationwide did not appropriately adjust and pay the claim. (Id. ¶¶ 7, 11.) On February 12, 2014, Plaintiff filed a two-count complaint alleging breach of contract, one pursuant to New Jersey state law and one pursuant to the National Flood Insurance Act of 1968, 42 U.S.C. §§ 4001-4129 (hereafter, “NFIA”), against Nationwide. Nationwide moved to dismiss both claims as barred by the statute of limitations and sought to strike Plaintiff's prayer for consequential damages and attorney's fees. Plaintiff did not file a response to this motion. In its December 4, 2014 Opinion and Order, the Court granted Nationwide's motion to dismiss Plaintiff's state-law claim for breach of contract and to strike Plaintiff's prayer for consequential damages and attorney's fees in connection with her claim under the NFIA. The Court denied Nationwide's motion insofar as it sought dismissal of Plaintiff's claim under the NFIA as time-barred, without prejudice to Nationwide's right to later address this issue. Following the Court's decision, Nationwide filed an Answer to Plaintiff's remaining breach of contract claim on December 18, 2014 [Doc. No. 32]. On February 9, 2015, Nationwide's counsel wrote to Magistrate Judge Karen M. Williams to advise that Plaintiff failed to submit the supplemental Proof of Loss which Nationwide asserts is necessary for Plaintiff to maintain her suit. Nationwide further advised the Court that Plaintiff failed to exchange automatic disclosures pursuant to the Hurricane Sandy Case Management Order [Doc. No. 33]. Nationwide also noted that it attempted to contact Case 1:15-cv-05737-RBK-KMW Document 27-1 Filed 08/22/16 Page 2 of 5 PageID: 383 Linbald v. Nationwide Mutual Insurance Company, Slip Copy (2016) 2016 WL 614407 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Plaintiff's counsel by letter and phone but received no response. Judge Williams held a telephone status conference on February 13, 2015. A week later, Plaintiff's counsel executed a stipulation of dismissal with prejudice and the case was terminated on February 23, 2015. Five months later, with new counsel, Plaintiff filed the instant motion to set aside judgment. In her motion, Plaintiff argues that she was “unaware of and did not approve of [the dismissal].” (Reply. Br. at 5 [Doc. No. 42].) II. JURISDICTION *2 The Court has subject matter jurisdiction over Plaintiff's breach of contract claims pursuant to 42 U.S.C. § 4072, as well as 28 U.S.C. § 1331, because the controversy arises under the laws of the United States, including the NFIA. Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d 161, 167 (3d Cir. 1998) (holding that “42 U.S.C. § 4072 vests district courts with original exclusive jurisdiction over suits by claimants against [Write Your Own insurance] companies based on partial or total disallowance of claims for insurance arising out of the National Flood Insurance Act.”). III. LEGAL STANDARD Plaintiff seeks relief from an order dismissing the case with prejudice pursuant to Fed. R. Civ. P. 60(b) (6), the Rule's “catch-all” provision. Fed. R. Civ. P. 60(b) provides: (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. 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: ... (6) any other reason that justifies relief. Id. “[T]he Rule 60(b)(6) ground for relief from judgment provides for extraordinary relief and may only be invoked upon a showing of exceptional circumstances.” In re Fine Paper Antitrust Litig., 840 F.2d 188 (3d Cir. 1988) (quotation omitted). A showing of extraordinary circumstances involves demonstrating that without relief from the judgment, “an ‘extreme’ and ‘unexpected’ hardship will result.” Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (citing Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)). “[E]xtraordinary circumstances rarely exist when a party seeks relief from a judgment that resulted from the party's deliberate choices.” Budget Blinds, 536 F.3d at 255. Plaintiff, as the party seeking relief from final judgment, bears the burden of establishing entitlement to such relief. Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014) cert. denied sub nom. Wetzel v. Cox, 135 S. Ct. 1548, 191 L. Ed. 2d 663 (2015). Additionally, a motion for relief from a final judgment must be made within a reasonable time. Fed. R. Civ. P. 60(c)(1). Accordingly, to be successful on this motion, Plaintiff must demonstrate that the motion was timely filed, an extreme and unexpected hardship will result if the judgment is not vacated, and the motion is based on extraordinary circumstances. IV. DISCUSSION Plaintiff argues that judgment should be vacated because the ineffective assistance of her former counsel left her virtually unrepresented. According to Plaintiff, the Texas-based Voss Law Firm “aggressively marketed” to Superstorm Sandy victims including Plaintiff. (Mot. at ¶ 5.) As a result, the Voss Law Firm was retained by hundreds of people in New Jersey and associated itself with Harbatkin & Levasseur, PA as local counsel. (Mot. at ¶ 6-7.) Plaintiff contends that hundreds of lawsuits filed by the Voss Law Firm and Harbatkin & Levasseur PA have been dismissed on procedural grounds such as failing to serve complaints, failing to prosecute claims, and failing to answer discovery. (Mot. ¶ 8.) At least one court in this district imposed sanctions on the Voss Law Firm and Mr. Levasseur of Harbatkin & Levasseur, PA for their neglectful representation in a Sandy lawsuit. See Lighthouse Point Marina & Yacht Club, LLC v. Int'l Marine Underwriters, No. 14-2974, 2015 WL 1969360 (D.N.J. May 1, 2015). Case 1:15-cv-05737-RBK-KMW Document 27-1 Filed 08/22/16 Page 3 of 5 PageID: 384 Linbald v. Nationwide Mutual Insurance Company, Slip Copy (2016) 2016 WL 614407 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 3 As an initial matter, the Court finds Plaintiff's Rule 60(b)(6) motion was timely filed. A motion for relief from a final judgment must be made within a reasonable time. Fed. R. Civ. P. 60(c)(1). Plaintiff's motion comes five months after judgment was entered. Plaintiff has proffered a sufficient explanation for this delay. Plaintiff's new counsel asserts that it obtained approximately 150 files from the Voss Law Firm consisting of tens of thousands of files, in no rational order, many of which were mislabeled and combined information from multiple cases. (Reply at 3.) Plaintiff's new counsel asserts that it took months to reorganize the files and determine the appropriate course of conduct to take. Id.; cf., Moolenaar v. Gov't of Virgin Islands, 822 F.2d 1342, 1348 (3d Cir. 1987) (holding that a motion brought under Rule 60(b) (6) two years after the district court's judgment was untimely where “the reason for the attack upon that judgment was available for attack upon the original judgment”). The Court finds that given the factual background of this case, Plaintiff's motion was filed within a reasonable period of time. *3 The Court also finds that Plaintiff has met her burden of showing that if relief is not granted she will suffer an extreme and unexpected hardship. Boughner, 572 F.2d at 978 (the entry of summary judgments which precluded an adjudication on the merits of the appellants' claims for benefits constituted an “extreme and unexpected hardship”). Plaintiff maintains the case cannot be refiled because it was dismissed with prejudice and due to the expiration of the statute of limitations. At this time, however, the Court has insufficient evidence from which to determine whether extraordinary circumstances exist which warrant relief from judgment. While “extraordinary circumstances rarely exist when a party seeks relief from a judgment that resulted from the party's deliberate choices,” it is not clear to the Court whether Plaintiff made a deliberate choice or whether Plaintiff's counsel had her case dismissed without her approval or knowledge. Budget Blinds, 536 F.3d at 255. It is also unclear when and how Plaintiff learned the case was dismissed. In her brief, Plaintiff states that she was “unaware of and did not approve of [the dismissal].” (Reply. Br. at 5.) However, Plaintiff has not submitted an affidavit or any other evidence from which to conclude that her former counsel acted without authority. The Court notes that in a recent case in this district, the Honorable William H. Walls, S.U.S.D.J., held that a SFIP insured should not be excused from a dismissal because of the conduct of the Voss Law Firm and Mr. Levasseur. In Lighthouse Point Marina & Yacht Club, LLC v. Int'l Marine Underwriters, 14-2974, 2015 WL 1969360 (D.N.J. May 1, 2015), the Voss Law Firm and Mr. Levasseur, representing a Sandy plaintiff, failed to respond to the defendant's motion to dismiss which resulted in the dismissal of the complaint. Since the defendant asserted the lawsuit was fraudulent, the court issued an order to show cause to which the Voss Law Firm and Mr. Levasseur again failed to respond. As a result, the court entered judgment against the plaintiff, the Voss Law firm, and Mr. Levasseur, jointly and severally. Judge Walls also prohibited Bill L. Voss of the Voss Law Firm from seeking pro hac vice admission before him for one year. Mr. Levasseur moved to set aside the dismissal pursuant to Fed. R. Civ. P. 60(b). Judge Walls denied the motion, reasoning that the plaintiff must suffer the consequences of its counsel's inadequate representation. What distinguishes Lighthouse from the instant case is that Plaintiff may be able to demonstrate that her former counsel's conduct was “so gross that it is inexcusable.” Boughner v. Sec'y of Health, Ed. & Welfare, U. S., 572 F.2d 976, 978 (3d Cir. 1978). In Boughner, the Third Circuit found that an attorney's conduct can create an exceptional circumstance under Rule 60(b)(6). The court vacated a summary judgment decision based on the plaintiff's attorney's egregious conduct in failing to file responsive motions in 52 cases. Boughner, 572 F.2d at 976. The Third Circuit held that, “[t]o permit these judgments to stand, in light of Krehel's conduct and the absence of neglect by the parties, would be unjust.” Boughner, 572 F.2d at 979; see also Carter v. Albert Einstein Med. Ctr., 804 F.2d 805, 808 (3d Cir. 1986) (reinstating complaint where dismissal was caused by an attorney's sanctionable negligence, noting Case 1:15-cv-05737-RBK-KMW Document 27-1 Filed 08/22/16 Page 4 of 5 PageID: 385 Linbald v. Nationwide Mutual Insurance Company, Slip Copy (2016) 2016 WL 614407 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 “we do not favor dismissal of a case when the attorney's delinquencies-not the client's-necessitate sanctions.”). *4 Similarly here, Plaintiff argues in her brief that she was unaware of and did not approve the joint stipulation which resulted in the dismissal of her case. Plaintiff also highlights that like the plaintiff's attorney in Boughner, many cases in this district involving her former counsel have been dismissed for non-diligent representation. See Lighthouse Point Marina & Yacht Club, LLC v. Int'l Marine Underwriters, No. 14-2974, 2015 WL 260891, at *4 (D.N.J. Jan. 20, 2015) reconsideration denied, 2015 WL 1969360 (D.N.J. May 1, 2015) (citing cases). However, to meet her burden of proving that such extraordinary relief is warranted, Plaintiff must provide the Court with an affidavit or other evidence concerning her alleged ignorance of the filing of the joint stipulation. Plaintiff must also demonstrate that she has a meritorious claim. Opening this matter only to dismiss a less than colorable claim would not only be an act of futility but also work an injustice on the defendant who asserted various defenses before the voluntary dismissal in this matter and would have to repeat that costly process. Accordingly, Plaintiff must demonstrate her ability to comply with Nationwide's previous discovery requests and submit all information necessary to maintain her suit including proof that all prerequisites to suit have been met. V. CONCLUSION Plaintiff's motion to set aside judgment pursuant to Fed. R. Civ. P. 60(b)(6) will be denied without prejudice. An Order consistent with this Opinion will be entered. Plaintiff may renew her motion consistent with the directions above within forty five (45) days of entry of this Opinion and accompanying Order. All Citations Slip Copy, 2016 WL 614407 End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works. Case 1:15-cv-05737-RBK-KMW Document 27-1 Filed 08/22/16 Page 5 of 5 PageID: 386 CERTIFICATE OF SERVICE I, Adam J. Petitt, Esquire, hereby certify that on August 22, 2016, I served the foregoing via the Court’s ECF system, which electronically served it upon all counsel of record. /s/ Adam J. Petitt Adam J. Petitt # 2935890 v. 3 Case 1:15-cv-05737-RBK-KMW Document 27-2 Filed 08/22/16 Page 1 of 1 PageID: 387