1 

NOT FOR PUBLICATION 

 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

__________________________________________ 

 : 

RD LEGAL FUNDING PARTNERS, LP, : 

 : 

 Plaintiff, : 

 : 

 v. : Civil Action No. 11-3775 (ES) 

 : 

GARVE W. IVEY, JR., et al., : OPINION & ORDER

 : 

 : 

 Defendant. : 

__________________________________________: 

SALAS, DISTRICT JUDGE

I. INTRODUCTION

Pending before the Court is Plaintiff RD Legal Funding Partners, LP’s motion for relief 

from judgment pursuant to Federal Rule of Civil Procedure 60(b). (D.E. No. 19). Defendant 

Garve W. Ivey, Jr. has not filed an opposition. Having considered Plaintiff’s submissions, the 

Court hereby GRANTS Plaintiff’s motion. 

II. BACKGROUND 

On June 29, 2012, the Court granted Plaintiff’s motion for default judgment against 

Defendants jointly and severally in the amount of $1,015,251.37. (D.E. No. 10, Opinion & 

Order at 3). The case involves an alleged breach of contract claim based on fraud and 

misrepresentation. The Court ordered that Plaintiff was “entitled to reasonable attorneys’ fees 

pursuant to the provisions of the parties’ agreement but subject to this Court’s in camera review 

of descriptive time entries from the billing records.” (Id.). The Court further ordered that 

“Plaintiff’s counsel shall submit records supporting its claim for attorneys’ fees and costs, 

allegedly totaling $5,752.26 and $19,420.50, to this Court on or before July 13, 2012.” (Id.). 

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Plaintiff did not in fact submit any records supporting its claim for attorneys’ fees and 

costs by the July 13, 2012 deadline. Plaintiff claims that, when the Court’s June 29, 2012 

judgment arrived in counsel’s office, it was mistakenly sent to lead counsel in another matter.1 

(D.E. No. 19, Plaintiff’s Brief in Support of [Second] Motion for Relief from a Judgment (“Pl. 

2d Br.”) at 2, ¶ 2). Plaintiff did not discover this error until after the July 13, 2012 deadline. 

(Id.). 

After realizing that the deadline to submit supporting records had passed, Plaintiff filed a 

motion for relief from judgment on June 21, 2013. (D.E. No. 12, Plaintiff’s Brief in Support of 

[First] Motion for Relief from a Judgment (“Pl. 1st Br.”)). While preparing for this motion, 

Plaintiff discovered errors in the attorneys’ fees and costs asserted in its earlier motion for 

default judgment. (Pl. 2d Br. at 3, ¶ 4). To correct these errors, Plaintiff’s motion sought to 

amend the default judgment “to include $8,261.25 in fees and $12,216.45 in costs.” (Pl. 1st Br. 

at 10). In addition, Plaintiff sought to submit two certifications in camera to verify these 

amounts. (Pl. 2d Br. at 3, ¶ 4). 

In January of 2014, the Court notified Plaintiff that it had not received the in camera

certifications. (Id. at 3, ¶ 5). On January 17, 2014, Plaintiff submitted an in camera certification 

for attorneys’ fees and costs. (Id.). Ultimately, this certification included incorrect and 

inconsistent fees and costs. (Id.). 

On March 14, 2014, the Court found that Plaintiff provided an inadequate basis for 

determining attorneys’ fees and costs because there were inconsistent and unsupported records 

and documentation. (D.E. No. 15, Opinion & Order Denying Motion (“Mar. Opinion”) at 2, ¶ 

10). As such, Plaintiff’s motion was denied without prejudice. The Court indicated that Plaintiff 

 

1

 The parties in the instant matter are also parties in a matter captioned Brevet Capital v. RD Legal 

Funding Partners, LP, Civil Action No. 10-4881. The June 29, 2012 judgment was sent to lead counsel 

for the Brevet matter. 

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may re-file its motion with documents that clearly identify the amounts it seeks and explain why 

certain billing entries on the invoices predate the filing of the complaint. (Id. at 2-3). The Court 

also ordered Plaintiff to brief why reimbursement of life insurance premiums should be included 

in costs. (Id.). 

On April 28, 2014, Plaintiff re-filed the instant motion. In support of the motion, 

Plaintiff has submitted a brief that addresses why this Court’s judgment should be amended 

pursuant to Federal Rule of Civil Procedure 60(b) for excusable neglect. (Pl. 2d Br. at 1). 

Plaintiff seeks to amend the judgment to include $8,261.25 in fees and $12,216.45 in costs.2

 (Id. 

at 13). 

Plaintiff’s brief and supporting documents address the issues raised in the Court’s March 

14, 2014 Opinion. Plaintiff explained that some of the billing entries pre-date the Complaint 

because Plaintiff needed to re-file its original complaint due to Defendant’s unresponsiveness.3

 

(Pl. 2d Br. at 4 ¶ 10). Plaintiff has also submitted a certification from Alan Thomas identifying 

the amounts Plaintiff seeks in attorneys’ fees and costs. (See D.E. No. 19-1, Certification of Alan 

Thomas (“Thomas Cert.”)). Furthermore, Plaintiff submitted a certification from Irena Norton 

discussing why the $11,606.05 in life insurance premiums should be considered as costs. (See

D.E. No. 19-2, Certification of Irene Norton (“Norton Cert.”)). According to Plaintiff, 

Defendant Garve W. Ivey, Jr. assigned his life insurance policy to Plaintiff as collateral in 

accordance with the agreement that is the subject of this action. (Pl. 2d Br. at 5 ¶ 11; Norton 

 

2

 Although Plaintiff’s Brief in Support of [Second] Motion for Relief from a Judgment seeks $12,216.45 

in costs, (See Pl. 2d Br. at 13), the documents submitted in support of the instant motion substantiate an 

amount of $12,033.86 in costs ($427.81 in costs plus $11,606.05 in additional costs). The Court finds this 

inconsistency to be insignificant. 

3

 Plaintiff states that, when the Complaint was originally filed, Defendant was responsive and seemed 

willing to waive personal service under Federal Rule of Civil Procedure 4(d). (Pl. 2d Br. at 4, ¶ 1). 

Defendant requested additional time to complete the waiver and then became unresponsive. (Id.). By this 

time, the 120-day deadline for proper service was near, and the Clerk of the Court advised Plaintiff to 

allow the Complaint to be dismissed for lack of proper service and file the Complaint again. (Id.). 

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Cert. ¶ 1). The agreement allowed Plaintiff to pay the premiums on the life insurance policy if 

Defendant failed to do so. (Pl. 2d Br. at 5, ¶ 11). When Defendant failed to make the payments, 

Plaintiff did. (Id.). The $11,606.05 in additional costs that Plaintiff seeks is the amount Plaintiff 

paid on Defendant’s behalf in order to maintain the insurance policy. (Norton Cert. ¶ 2). 

III. DISCUSSION 

Pursuant to Federal Rule of Civil Procedure 60(b), Plaintiff requests relief from the 

Court’s June 29, 2012 Order granting default judgment. Specifically, Plaintiff seeks to amend the 

attorneys’ fees and costs that were tentatively awarded therein due to excusable neglect. A party 

may seek to modify attorneys’ fees and costs that were awarded as part of the original judgment 

through a Rule 60(b) motion. See Walker v. Astrue, 593 F.3d 274, 280 n.5 (3d Cir. 2010). At the 

outset, the Court must determine whether to grant the motion. Upon making this threshold 

determination, the Court will then assess the reasonableness of the fees and costs Plaintiff seeks, 

including the costs associated with the life insurance policy Defendant assigned to Plaintiff. 

A. Motion for Relief From Judgment Pursuant to Rule 60(b) 

Rule 60(b) states that “the court may relieve a party or its legal representative from a final 

judgment, order, or proceeding for . . . (1) mistake, inadvertence, surprise, or excusable neglect.” 

The ordinary meaning of neglect is to give little attention or leave undone due to carelessness. 

Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380, 388 (1993) (internal 

citations and quotation marks omitted). The Supreme Court has held that the determination of 

what type of neglect will be considered excusable is “an equitable one, taking account of all 

relevant circumstances.” Id. at 395; see also Ethan Michael Inc. v. Union Twp., 392 F. App’x 

906, 909-10 (3d Cir. 2010) (“[Excusable neglect] is an equitable test, which requires a court to 

take into account the totality of the circumstances.”). In determining whether to grant a Rule 

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60(b) motion due to excusable neglect, a district court must consider the four Pioneer factors: “1) 

the danger of prejudice to the other party; 2) the length of the delay and its potential impact on 

judicial proceedings; 3) the reason for the delay—and whether it was within the movant’s 

control; and 4) whether the movant acted in good faith.” Nara v. Frank, 488 F.3d 187, 194 (3d 

Cir. 2007) (internal citations omitted). 

 As to the first Pioneer factor, the Court finds that Defendant would suffer no prejudice. 

Plaintiff’s motion is unopposed as Defendant has failed to defend or otherwise appear before the 

Court in any capacity. Granting Plaintiff’s motion would not reopen the matter for further 

litigation or cause Defendant to incur additional legal costs. 

 As to the second factor, the Court finds the length of delay insignificant. Plaintiff filed 

this motion within the one-year time limit imposed by Federal Rule of Civil Procedure 60(c)(1).4

Furthermore, as previously stated, the motion is unopposed. Consequently, the Court finds that 

granting Plaintiff’s motion would have no adverse impact on the judicial proceedings. 

 As to the third factor, the Court finds Plaintiff’s mistake or neglect to weigh against 

Plaintiff. Plaintiff admits that “[u]pon receiving electronic notice of the Judgment for this case 

on June 29, 2012, Counsel mistakenly forwarded the Judgment to lead counsel on the Brevet 

Capital v. RDLFP [case] . . . rather than lead counsel for the case at hand.” (Pl. 2d Br. at 11) 

(emphasis in original). Plaintiff further admits that counsel “neglected to follow up with lead 

counsel to make sure they followed District of New Jersey Local Civil Rules [for] submitting a 

bill of costs and affidavit of attorney fees.” (Id. at 11-12). Plaintiff’s neglect was an act of 

carelessness that fell completely within counsel’s control. Counsel should have followed up on 

the status of the default judgment, yet seemingly failed to do so for nearly a year. Thus, the Court 

 

4

 “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. 

60(c)(1). 

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finds that the third Pioneer factor does not weigh in Plaintiff’s favor. 

 As to the fourth factor, there is no evidence that Plaintiff acted in bad faith. In fact, there 

is evidence to suggest the contrary. Plaintiff had nothing to gain in causing a delay. Although it 

took Plaintiff nearly a year to begin correcting the error, Plaintiff has since actively sought to do 

so. As such, the Court finds that Plaintiff was acting in good faith. 

 After considering the four Pioneer factors, the Court finds that the totality of the 

circumstances weigh in Plaintiff’s favor. Plaintiff’s motion for relief from the default judgment 

is hereby granted. The Court will now determine the reasonableness of the attorneys’ fees and 

costs Plaintiff seeks. 

B. Attorneys’ Fees and Costs 

Ordinarily, New Jersey disfavors courts awarding attorneys’ fees and costs. However, the 

state allows a prevailing party to recover reasonable attorneys’ fees and costs if they are 

explicitly provided for by contract. See Litton Indus., Inc. v. IMO Indus., Inc., 982 A.2d 420, 

427 (N.J. 2009). To select the amount in reasonable attorneys’ fees and costs that should be 

awarded, “a court must determine the appropriate billing rate for the party’s attorneys as well as 

the number of hours those attorneys reasonably expended on the action.” Interfaith Cmty. Org. 

v. Honeywell Int’l., Inc., 426 F.3d 694, 718 n.5 (3d Cir. 2005). This is referred to as the lodestar. 

Id. The fee petitioner bears the ultimate burden of demonstrating reasonableness and must 

submit evidence supporting the claim. Id. A district court should exclude any fees that are 

“excessive, redundant, or otherwise unnecessary.” Id. at 711 (citation omitted). 

In addition to attorneys’ fees and costs, Plaintiff seeks reimbursement of life insurance 

premium costs. Pursuant to 28 U.S.C. § 1920, Congress has provided a list of costs that courts 

and judges may award. In situations where costs sought by a party are not included in § 1920, 

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however, some courts have allowed for recovery when an agreement provides for a broader 

reimbursement of costs. See TCBY Systems, Inc. v. RSP Co., Inc., 33 F.3d 925, 931 (8th Cir. 

1994) (holding that a franchise agreement provided for reimbursement of “reasonable costs” 

independent of § 1920). 

The agreement that is at issue in this case allows Plaintiff to recover “reasonable costs 

and expenses (including attorneys’ fees and costs) incurred by [RD Legal] arising or resulting 

from such Breach.” (Thomas Cert., Ex. B, ¶ 4(a)). Pursuant to this agreement, the Court may 

allow for fee-shifting. See Litton Indus., Inc., 982 A.2d at 427. 

Plaintiff has submitted certifications, including itemized invoices and billing records, in 

support of its request for attorneys’ fees and costs. (See Thomas Cert. Ex. D; Norton Cert. Ex. 

B). Plaintiff seeks $8,261.25 in attorneys’ fees for approximately 24.75 hours of work. (See

Thomas Cert. at 4, ¶ 11, Ex. D). Plaintiff’s counsel charged approximately $200.00 to $400.00 

per hour.5

 Furthermore, Plaintiff seeks $427.81 in costs directly related to filing fees and mailing 

costs.6 (See id.). 

Upon review of the invoices and billing records submitted, the Court finds the hourly rate 

and the hours expended in the matter to be reasonable. Counsel provided detailed invoices, and 

the billing entries and hours expended were not “excessive, redundant, or otherwise 

unnecessary.” Interfaith Cmty. Org., 426 F.3d at 711. The Court finds no reason to doubt the 

records provided by Plaintiff’s counsel and deems the respective fees and costs reasonable. 

 As for the costs related to the reimbursement of life insurance premiums, the Court finds 

 

5

 The invoices Plaintiff submitted do not list hourly rates. The Court calculated these hourly rates based 

upon the information provided in Plaintiff’s invoices. 

6

 The invoices Plaintiff submitted include more than $427.81 in costs. However, the Certification of Alan 

Thomas and Plaintiff’s Brief in Support of [Second] Motion for Relief from a Judgment only seek 

$427.81 in costs. (See Thomas Cert. at 4, ¶ 10, at 5, ¶ 11; Pl. 2d Br. at 3, ¶ 7). Therefore, the Court finds 

$427.81 to be the operative amount in costs that Plaintiff seeks. 

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these costs to be reasonable as well. Again, the agreement that is the basis for this action allows 

for the recovery of “reasonable costs and expenses” if it is breached. (Thomas Cert., Ex. B, ¶ 

4(a)). Defendant was required to pay the premium on his life insurance policy under the 

agreement and failed to do so, thus breaching the agreement. (Pl. 2d Br. at 5, ¶ 11; Norton Cert. 

¶ 1; Thomas Cert. ¶ 16). The Court finds that the agreement between the parties allows for 

recovery of these costs. Plaintiff has submitted invoices detailing that the amount of premiums 

paid on Defendant’s behalf totals $11,606.05. The court finds this amount to be reasonable.7 

IV. CONCLUSION 

 Accordingly, IT IS on this 15th day of December 2014, 

ORDERED that Plaintiff’s motion for relief from judgment pursuant to Federal Rule of 

Civil Procedure 60(b), (D.E. No. 19), is hereby GRANTED; and it is further 

ORDERED that the Court’s June 29, 2012 Opinion & Order granting Plaintiff attorneys’ 

fees and costs, (D.E. No. 10), is hereby amended to award $8,261.25 in attorneys’ fees, $427.81 

in costs, and $11,606.05 in additional costs pursuant to the provisions of the parties’ agreement. 

 /s/Esther Salas 

 Esther Salas, U.S.D.J. 

 

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 The Court also finds that these cost could be construed as damages. Plaintiff did not initially seek 

reimbursement of the life insurance premiums as damages in its Complaint. However, Plaintiff has asked 

the Court, in the alterative to awarding these payments as costs, to construe these payments as damages. 

(See Pl. 2d Br. at 5, ¶ 11). Plaintiff made these payments based on Defendant’s breach of the agreement, 

which is related to the underlying cause of action in this matter. 

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