2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-28-2011

John Koresko v. Jeff Bleiweis

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3685

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Recommended Citation

"John Koresko v. Jeff Bleiweis" (2011). 2011 Decisions. Paper 1584.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1584
1 

NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

Nos. 09-3685/09-3812 

_____________ 

JOHN J. KORESKO, V; PENNMONT 

BENEFIT SERVICES, INC, 

 Appellants in 09-3685 

v. 

JEFF BLEIWEIS; RAYMOND 

ANKNER; CJA AND ASSOCIATES, INC; METLIFE INSURANCE 

COMPANY, F/K/A THE TRAVELERS LIFE AND ANNUITY COMPANY 

__________ 

JOHN J. KORESKO, V; PENNMONT 

BENEFIT SERVICES, INC, 

v. 

JEFF BLEIWEIS; RAYMOND 

ANKNER; CJA AND ASSOCIATES, INC.; METLIFE INSURANCE 

COMPANY, F/K/A THE TRAVELERS LIFE AND ANNUITY COMPANY 

 Metlife Insurance 

 Company, 

 Appellant in 09-3812 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(No. 04-cv-769) 

District Judge: Hon. Juan R. Sanchez 
2 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

Monday, January 24, 2011 

Before: McKEE, Chief Judge, SMITH, Circuit Judge, 

and STEARNS,1 District Judge

(Opinion Filed: March 28, 2011) 

OPINION 

McKEE, Chief Judge. 

 John Koresko appeals the district court’s order denying his Rule 60(b) motion to 

dismiss. MetLife Insurance Company cross-appeals alleging that the district court erred 

in denying its motion to dismiss pursuant to the Gist of the Action doctrine. For the 

reasons that follow, we will affirm the district court’s order denying the Rule 60(b) 

motion; the cross-appeal is therefore moot. 

I. 

 Since we write primarily for the parties, we will only set forth those facts that are 

helpful to our brief discussion of the issues. On October 8, 2008, the court warned 

Koresko pursuant to Local Rule 41.1(a) that his suit would be dismissed due to inactivity 

unless he filed a written statement of his intention to proceed with the case within thirty 

days. On November 5, 2008, new counsel entered their appearance for Koresko and 

notified the court that they intended to proceed with the litigation. However, on 

 

1

 Honorable Richard G. Stearns, District Court Judge, United States District Court for the 

District of Massachusetts, sitting by designation. 
3 

November 18, 2008, the newly obtained counsel withdrew. On December 17, 2008 the 

court ordered Koresko to show cause why dismissal was not warranted. When the court 

did not hear from Koresko, it dismissed this action with prejudice. 

Thereafter, Koresko filed a motion to vacate the dismissal, alleging that he had not 

received the December 17 order to show cause due to a clerical error.2

 On July 17, 2009, 

the motion was denied, but the court allowed Koresko an opportunity to file a renewed 

motion explaining why the case had been inactive since November 2005. Koresko filed 

the renewed motion to vacate the dismissal, and the court held a phone conference to 

discuss the motion with both parties. On August 18, 2009, the motion was denied 

because the court found that the proffered excuses were insufficient to justify the 

extraordinary delay in the case. This appeal followed.3

 

II. 

 Koresko argues that dismissal was an abuse of discretion because the court did not 

consider the applicable factors set forth in Poulis v. State Farm Prop. & Cas. Co., 747 

F.2d 863 (3d Cir. 1984), where we provided a framework for evaluating dismissals. 

However, Koresko is appealing the denial of the motion to vacate the dismissal, rather 

 

2

 Koreskos’s secretary spoke with the clerk of the court and determined that the order was 

not mailed to appellants because no contact information was provided on the docket and 

the attorneys had all been terminated. 

3

 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion. 

See Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002). 
4 

than the dismissal itself.4

 An appeal from the denial of a Rule 60(b) motion does not 

allow Koresko to appeal the final judgment dismissing the case. See Selkridge v. United 

of Omaha Life Ins. Co., 360 F.3d 155, 161 n.3 (3d Cir. 2004). Therefore, the factors in 

Poulis are not applicable. 

In examining whether Koresko’s dereliction here could constitute “excusable 

neglect”, we must evaluate “all relevant circumstances surrounding the party’s omission.” 

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). 

Factors to consider include: “[1] the danger of prejudice . . . [2] the length of the delay 

and its potential impact on judicial proceedings, [3] the reason for the delay, including 

whether it was within the reasonable control of the movant, and [4] whether the movant 

acted in good faith.” Id.; see also Chao v. Roy’s Constr., Inc., 517 F.3d 180, 183 (3d Cir. 

2008) (applying the factors from Pioneer). 

 Here, the district court allowed Koresko ample opportunity to justify the 

extraordinary delay. The dismissal occurred more than seven years after the initial action 

was filed in state court, and more importantly, Koresko never moved the case beyond the 

discovery phase. Instead, since 2005, the only activity arose from a revolving door of 

various attorneys entering their appearance and then withdrawing from the case. Thus, 

the district court clearly did not abuse its discretion in denying Koresko’s motion to 

reconsider. Koresko’s attempt to resurrect his suit at this late hour is devoid of any merit. 

 

4

 While Koresko’s motion to vacate did not cite to a specific rule, “it was filed beyond ten 

days of entry of judgment, [so] we view it as having been filed pursuant to Fed.R.Civ.P. 

60(b)(1).” Lorenzo v. Griffith, 12 F.3d 23, 26 (3d Cir. 1993). 
5 

 As noted at the outset, MetLife Insurance Company filed a cross-appeal arguing 

that even if we do not reject Koresko’s appeal, we should find that the district court erred 

in denying its motion to dismiss pursuant to Pennsylvania’s Gist of the Action doctrine. 

Because we will reject Koresko’s appeal, the cross-appeal will be dismissed as moot. 

IV. Conclusion 

 For the foregoing reasons, we will affirm the district court’s order denying the 

Rule 60(b)(1) motion, and dismiss the cross-appeal as moot.