United States District Court, S.D. West Virginia, Beckley
MEMORANDUM OPINION AND ORDER
A. Faber Senior United States District Judge
before the court is defendant's pro se Rule 60 Motion.
(ECF No. 49). Plaintiff has not responded to this motion.
After reviewing defendant's filings, the court concluded
that it was possible defendant was entitled to relief under
Federal Rule of Civil Procedure 60(b)(5) and, by Order
entered on January 30, 2018, set a hearing on defendant's
motion for February 20, 2018, at 11:00 a.m., in Bluefield.
Counsel for plaintiff contacted the undersigned's law
clerk and informed the court that it did not plan to contest
action plaintiff Erie Insurance and Property and Casualty
Company (“Erie”) sought to collect from defendant
Harry E. Walkup, Jr. (“Walkup”) $535, 817.77 for
burning the building of an Erie policyholder. Erie alleged
that (1) Walkup burned the law office of Barry L. Bruce on
June 17, 2000, (2) Erie paid Bruce $535, 817.77 pursuant to
its insurance policy with him and (3) Walkup was convicted of
second degree arson for burning the Bruce law office. On
January 25, 2001, Judge Frank E. Jolliffe of the Circuit
Court of Greenbrier County, West Virginia, entered an Order
finding Walkup guilty of, among other charges, second degree
arson, for burning the Bruce law office. Walkup submitted a
petition of appeal on the conviction to the West Virginia
Supreme Court of Appeals, and that court rejected the appeal
on October 1, 2001.
support of its motion for summary judgment, Erie relied upon
the doctrine of collateral estoppel to preclude Walkup from
contesting the critical facts of this case. The court found
that Walkup was estopped from relitigating his criminal
conviction in this court because, under West Virginia law, a
defendant found guilty of a criminal offense is precluded
from asserting that he did not commit the criminal offense in
civil litigation concerning the same transaction.
See ECF No. 15 at 3-4 (citing State ex rel.
Leach v. Schlaegel, 447 S.E.2d 1, 4 (W.Va. 1994);
Baber v. Fortner ex rel. Poe, 412 S.E.2d 814 (W.Va.
1991)). As such, the court found Walkup liable to Erie as a
matter of law and, by Judgment Order dated February 12, 2002,
granted Erie's motion for summary judgment. See
ECF No. 16. Judgment was entered against Walkup in the amount
of $535, 817.77, together with interest and costs. See
16, 2016, the Circuit Court of Greenbrier County granted
Walkup's Petition for Writ of Coram Nobis and reversed
and vacated his underlying criminal conviction based on the
grounds of ineffective assistance of counsel. On or about
April 20, 2017, Walkup filed a Complaint in this court
seeking to vacate the summary judgment ruling. That case was
assigned Civil Action No. 5:17cv02419 and assigned to Judge
Berger. After reviewing Walkup's filing, by Order entered
April 25, 2017, Judge Berger directed that Walkup's
“complaint” be filed in this case and dismissed
Civil Action No. 5:17cv02419.
To obtain relief from a judgment under Rule 60(b), a moving
party must first show (1) that the motion is timely, (2) that
he has a meritorious claim or defense, and (3) that the
opposing party will not suffer unfair prejudice if the
judgment is set aside. Nat'l Credit Union Admin. Bd.
v. Gray, 1 F.3d 262, 264 (4th Cir. 1993). The party must
also satisfy one of six enumerated grounds for relief under
Rule 60(b). Id. at 266.
United States v. Welsh, No. 17-6355, 2018 WL 386658,
*2 (4th Cir. Jan. 12, 2018). Federal Rule of Civil Procedure
60(b)(5)(ii) authorizes relief from a final order if the
order “is based on an earlier judgment that has been
reversed or vacated[.]” Relief from judgment under Rule
60(b) “is extraordinary and is only to be invoked upon
a showing of exceptional circumstances.”
Welsh, 2018 WL 386658 at *5 (quoting Compton v.
Alton S.S. Co., 608 F.2d 96, 102 (4th Cir. 1979)).
Denial of a Rule 60(b)(5) motion is reviewed for abuse of
discretion. See id. at *2 (citing MLC Auto., LLC
v. Town of S. Pines, 532 F.3d 269, 277 (4th Cir. 2008)).
seems clear that Walkup is eligible for relief under
Rule 60(b)(5)(ii) as the court's grant of summary
judgment in 2002 was based on Walkup's conviction that
has since been reversed and vacated. Furthermore, the court
cannot conclude that Walkup's motion is untimely or that
Erie will suffer undue prejudice if the judgment is set
aside. Erie will still be free to move for summary judgment
in this court based upon the evidence offered at trial and
Erie has not identified any undue prejudice it will suffer as
a result of this ruling. Based upon the foregoing, the court
exercises its discretion and GRANTS
Walkup's motion under Rule 60(b)(5).
on the foregoing, the court hereby ORDERS as
1) Defendant's Motion under Rule 60(b)(5) is
GRANTED and the Judgment Order of February
12, 2002, is hereby VACATED;
2) If Erie wishes to proceed with this case, it has until
March 14, 2018, in which to file a motion to
reinstate this matter to the court's active docket.