UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KELLY CONARD, : CIVIL NO. 4:06-CV-1450

:

Plaintiff, : (Judge Rambo)

:

v. :

 : (Magistrate Judge Carlson)

PENNSYLVANIA STATE POLICE, :

et al., :

 :

Defendants. :

REPORT AND RECOMMENDATION

I. Statement of the Case

 This case comes before us in an unusual posture. Nine years ago, in July of

2006, the plaintiff brought this action against the Pennsylvania State Police. (Doc. 1.).

Six years ago, in February of 2009, judgment was entered in favor of the defendants.

(Doc. 69.) Five years ago, in March of 2010, that judgment was affirmed on appeal.

(Doc. 72.) Two years ago, in October of 2013, the attorney who formerly represented

Conard in this lawsuit, was disciplined and suspended from practice by the Supreme

Court of Pennsylvania. Today, drawing upon these disparate and long past events, the

plaintiff, Kelly Conard, has filed a motion to reopen her 2006 lawsuit based upon the

disciplinary actions taken by the Pennsylvania courts against her former counsel seven

years later, in 2013. (Docs. 73 and 74.) 

For the reasons set forth below, it is recommended that this motion be denied.

Case 4:06-cv-01450-SHR Document 75 Filed 12/23/15 Page 1 of 8
II. Discussion

A. Rule 60–The Legal Standard.

Rule 60 of the Federal Rules of Civil Procedure provides, in part, as follows:

(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;

(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.

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within a reasonable time-

-and for reasons (1), (2), and (3) no more than a year after the entry of the

judgment or order or the date of the proceeding.

Fed. R. Civ. P., Rule 60(b) and (c).

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As the text of this rule implies, decisions regarding whether to re-open cases

under Rule 60, rest “within the discretion of the trial court [although] [i]t is the trial

judge's duty to construe the rule liberally in order to work substantial justice between

the parties.” Home Box Office, Inc. v. Spectrum Electronics, Inc., 100 F.R.D. 379, 382

(E.D. Pa. 1983). In exercising this discretion, “the court must balance the ends of

justice on the one hand, . . . , and the public interest in the finality of judgments on the

other.” Aetna Cas. & Sur. Co. v. Home Ins. Co., 882 F. Supp. 1355, 1356 (S.D.N.Y.

1995). Because one of the cardinal considerations in assessing a Rule 60 motion is the

public interest in the finality of judgments, Rule 60 motions must be made in a timely

fashion. As the Rule itself states: “A motion under Rule 60(b) must be made within

a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry

of the judgment or order or the date of the proceeding.” Fed. R. Civ. P., Rule 60(c).

Here, Conard’s motion to re-open does not cite which provision of Rule 60(b)

she may be relying upon. However, Rules 60(b)(4) and (5), which relate to void or

satisfied judgments, are clearly inapplicable here. Further, to the extent that Conard

relies upon Rule 60(b)(1), (2), (3), and (6), as the legal grounds upon which the

plaintiff seeks to re-open this case this motion to re-open fails on several independent

grounds. 

 At the outset, to the extent that Conard seeks to rely upon subsections (1)

through (3) of Rule 60(b), which permit judgments to be re-opened based upon a

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showing of mistake, newly discovered evidence or fraud, the plain language of the rule

also requires such motions to be filed “no more than a year after the entry of the

judgment or order or the date of the proceeding” which a party seeks to re-open. 

Further, “[t]his time limit is jurisdictional and cannot be extended.” Arrieta v.

Battaglia, 461 F.3d 861, 864 (7th Cir. 2006). Therefore, the court generally may not

entertain untimely motions to re-open a judgment made pursuant to Rule 60(b)(1)-(3).

Radack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538 (2d Cir. 1963). 

Judged against these standards, to the extent that she relies upon Rule 60(b)(1)-

(3), Conard’s motion fails as a threshold matter because it is clearly untimely, having

been filed more than one year after either: (1) the entry of the district court’s February

2009 final order in this case dismissing Conard’s claims; (2) the court of appeals

March 2010 decision affirming this judgment; or (3) the unrelated October 2013 state

bar disciplinary actions relating Conard’s former counsel which she cites in her

pleadings.1

1

Beyond its procedurally flawed quality, we note that none of Conard’s

claims have even the slightest substantive merit under Rule 60(b)(1)-(3). The

circumstances surrounding the discipline of her former counsel are not new or

newly discovered. Quite the contrary, they have been matters of public record for

many years. There is no allegation or indication of any fraud whatsoever by an

opposing party in this case, and Conard can point to nothing that would constitute

mistake, inadvertence, surprise, or excusable neglect warranting relief under Rule

60(b)(1)-(3).

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Nor can Conard obtain relief under Rule 60(b)(6), which permits relief on “any

other reason that justifies relief.” Unlike Rule 60(b)(1)-(3) motions, motions brought

pursuant to Rule 60(b)(6) are not subject to a strict 1-year limitations period. However,

“A motion under the ‘catchall’ provision contained in Rule 60(b)(6) also must be made

‘within a reasonable time.’ Relief under Rule 60(b)(6) requires a showing of 

‘“extraordinary circumstances' justifying the reopening of a final judgment”’” Arrieta

v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006)(citations omitted). 

A determination of :

What constitutes a “reasonable time” depends on the circumstances of

each case. Delzona Corp. v. Sacks, 265 F.2d 157, 159 (3d Cir.1959). A

court considers many factors, including finality, the reason for delay, the

practical ability for the litigant to learn of the grounds relied upon earlier,

and potential prejudice to other parties. Kagan v. Caterpillar Tractor Co.,

795 F.2d 601, 610 (7th Cir.1986); Ashford v. Steuart, 657 F.2d 1053,

1055 (9th Cir.1981). What constitutes a “reasonable time” also depends

on which Rule 60(b) clause a claimant is trying to avail. We have noted

that relief under Rule 60(b)(6) is extraordinary because it can be given

for “any other reason justifying relief” and is not subject to an explicit

time limit. Coltec Indus. Inc. v. Hobgood, 280 F.3d 262, 273 (3d

Cir.2002). Therefore, a claimant must establish exceptional

circumstances justifying the delay for filing under Rule 60(b)(6).

In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., 383

F. App'x 242, 246 (3d Cir. 2010).

One aspect of this showing of “exceptional circumstances justifying the delay

for filing under Rule 60(b)(6),” is that a movant under Rule 60(b)(6) must show that

she “has exercised due diligence to ascertain whether the judgment has been entered

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or has given sufficient reason for the lack of such diligence.” Spika v. Vill. of

Lombard, Ill., 763 F.2d 282, 285 (7th Cir. 1985).

In this case, Conard’s motion completely fails to demonstrate the type of

extraordinary degree of diligence necessary to justify the belated filing of a motion to

re-open under Rule 60(b)(6). Indeed, rather than displaying extraordinary diligence,

Conard’s approach to this matter is marked by casual indolence. The grounds cited by

Conard in her motion to re-open are all matters of public record in litigation and

disciplinary proceedings which have spanned the past decade and have concluded

more than two years ago. By any standard, Conard’s lethargy in the face of these facts

cannot be regarded as diligence, and cannot sustain Conard’s burden of “establish[ing]

exceptional circumstances justifying the delay for filing under Rule 60(b)(6).”In re

Diet Drugs Phentermine/Fenfluramine/ Dexfenfluramine) Prod. Liab. Litig., 383 F.

App'x 242, 246 (3d Cir. 2010).

More fundamentally, this motion to re-open fails on its merits. Indeed, we are

constrained to observe that many disappointed litigants have cited the subsequent

disciplinary shortcomings of Mr. Bailey and his former law partner as grounds for

relief under Rule 60(b) on the ironic theory that these disciplinary findings against

counsel somehow reflected adversely upon the court, not counsel. Yet, these motions,

while frequently made, have been consistently rebuffed by the courts, which uniformly

reject the claim that these subsequent disciplinary matters are a circumstance which

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warrants extraordinary relief under Rule 60.2

 The rationale behind these rulings, 

which have consistently rejected Rule 60 motions like those made here by Conard

based upon some meritless and poorly defined recusal concerns, is equally applicable

to the instant case. As we have noted, “relief under Rule 60(b)(6) is extraordinary

because it can be given for ‘any other reason justifying relief’ and is not subject to an

explicit time limit. Coltec Indus. Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir.2002).

Therefore, a claimant must establish exceptional circumstances justifying [such

relief].”In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab.

Litig., 383 F. App'x 242, 246 (3d Cir. 2010). In this case, Conard has not, and cannot,

meet this burden of establishing exceptional circumstances justifying relief under Rule

60 by asserting vague recusal concerns in some wholly speculative fashion. Indeed,

this argument is particularly hollow in the instant case since the first judge assigned

to this case actually did recuse himself in 2007, (Doc. 57), and the case was reassigned

to another judge. That second judge, as to whom no grounds existed for recusal, then

ruled against Conard on the merits of her claims in a ruling that was affirmed on its

2

See e.g. Adams v. Keller, No. CIV.A. 07-1103, 2012 WL 2947579, at *1

(M.D. Pa. July 19, 2012); Robinson v. Hicks, No. 1:07-CV-1751, 2012 WL

825329, at *1 (M.D. Pa. Mar. 9, 2012); Dock v. Rush, No. 09-CV-606, 2012 WL

86893, at *1 (M.D. Pa. Jan. 11, 2012); Thomas v. Sandstrom, No. 3:09-CV-1557,

2011 WL 6050348, at *1 (M.D. Pa. Dec. 6, 2011); Phillis v. Harrisburg Sch. Dist.,

No. 1:07-CV-1728, 2011 WL 6294486, at *1 (M.D. Pa. Dec. 15, 2011). 

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merits by the court of appeals. Therefore, Conard may not rely upon this belated and

flawed recusal claim to resurrect a fatally deficient legal claim.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED

THAT the plaintiff’s motion to re-open (Doc. 73) be DENIED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in 28

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition

of a prisoner case or a habeas corpus petition within fourteen (14) days

after being served with a copy thereof. Such party shall file with the clerk

of court, and serve on the magistrate judge and all parties, written

objections which shall specifically identify the portions of the proposed

findings, recommendations or report to which objection is made and the

basis for such objections. The briefing requirements set forth in Local

Rule 72.2 shall apply. A judge shall make a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

magistrate judge. The judge, however, need conduct a new hearing only

in his or her discretion or where required by law, and may consider the

record developed before the magistrate judge, making his or her own

determination on the basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the matter to the

magistrate judge with instructions.

Submitted this 23d day of December, 2015.

/s/ Martin C. Carlson Martin C. Carlson 

United States Magistrate Judge

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