United States District Court, W.D. Kentucky, Bowling Green Division
WILLIAM S. HOPKINS PLAINTIFF
AMERITAS LIFE INSURANCE CORP. DEFENDANT
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE
matter is before the Court on Plaintiff's Motion for
Prosecution of Pending Litigation (DN 72) and Defendant's
Motion to Strike or Seal and Impose Sanctions (DN 73). The
motions are ripe for adjudication. For the foregoing reasons,
the motions are DENIED.
William S. Hopkins (“Hopkins”), a self-employed
endodontist, filed this lawsuit relating to a disability
insurance policy he purchased from Defendant Ameritas Life
Insurance Corp. (“Ameritas”). (Compl ¶¶
7-8, DN 1-2). Hopkins subsequently became disabled and made a
claim under the disability policy. (Compl. ¶ 10).
Ameritas made disability income payments through June 18,
2014, when payments ceased because Ameritas believed it had
overpaid Hopkins $83, 103.20 in disability benefits. (Comp.
sued Ameritas in state court alleging breach of contract, bad
faith, and a violation of the Kentucky Consumer Protection
Act, KRS 367.110-.330. (Comp. ¶¶ 7-33). Ameritas
then removed the lawsuit to this Court. (Notice Removal, DN
1). Through a private mediator, the parties settled their
dispute, and on October 30, 2017, the Court dismissed
Plaintiff's claims with prejudice. (Report Mediation, DN
64; Agreed Order, DN 67).
Plaintiff's Motion for Prosecution of Pending Litigation
moves pro se for prosecution of this lawsuit. (Pl.'s Mot.
Prosecution Pending Litigation 1, DN 72). As this Court noted
above, however, this case was closed on October 30, 2017,
based on the parties' settlement, and there is no pending
litigation in this Court to prosecute.
addressing Plaintiff's motion, therefore, the Court must
consider whether court rules permit any modification of the
final judgment dismissing all claims with prejudice. In
particular, Fed.R.Civ.P. 59 and 60 address when a court may
revisit a judgment in a closed case.
Fed. R. Civ. P. 59
Fed.R.Civ.P. 59, “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment.” Fed.R.Civ.P. 59(e). Because this
lawsuit was dismissed on October 30, 2017, a motion under
Fed. R. Civ. 59 had to be filed no later than November 27,
2017. Hopkins' present motion was filed on April 15,
2019, and is therefore untimely under that rule.
Fed. R. Civ. P. 60
Fed.R.Civ.P. 60(b)(1)-(3), a court may grant relief from a
judgment based upon “(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);
[or] (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
party . . . .” A motion for relief under any of these
grounds must be filed within one ...