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Belfor USA Group Inc v. Banks

United States District Court, D. South Carolina, Charleston Division

January 26, 2017

BELFOR USA GROUP, INC., Plaintiff,
v.
JAMES BANKS and REBECCA BANKS, Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on defendants and counterclaimants James and Rebecca Banks's (“the Banks”) motion to set aside judgment, ECF No. 73. For the reasons set forth below, the court denies the Banks's motion.

         I. BACKGROUND

         Belfor USA Group (“Belfor”) is a Colorado corporation with a principal place of business in Birmingham, Michigan. Compl. ¶ 2. Belfor operates as a restoration company providing emergency disaster recovery and property restoration. Id. ¶ 8. The Banks are citizens of South Carolina. Id. ¶ 3. On November 11, 2011, a fire partially destroyed the Banks's home located on 816 South Main Street in Summerville, South Carolina. Id. ¶ 9. The parties entered into a contract on November 13, 2011, under which Belfor agreed to perform fire-remediation and fire-restoration work on the Banks's home and their personal property. Id. ¶ 10.

         Under the terms of the contract, the Banks “transfer[red], assign[ed], and convey[ed] [] their right, title, and interest in and to [any] insurance policy proceeds” owed in connection with the fire to Belfor. Compl. Ex. A, Belfor Contract. The Banks also agreed to “immediately endorse and tender all drafts produced” to Belfor. Id. Belfor performed the fire-remediation and restoration work and issued invoices to the Banks totaling $337, 928.64. ECF No. 40 at 1. Belfor alleges that the Banks have refused to pay the remaining balance of $161, 593.79, despite receiving payment from its insurer for Belfor's materials and services. Compl. ¶¶ 18-19.

         On April 28, 2015, Belfor filed the present action against the Banks, bringing claims for breach of contract, conversion, and quantum meruit. On May 18, 2015, the Banks filed an answer, asserting counterclaims against Belfor for negligence, negligence per se, and violation of the South Carolina Unfair Trade Practices Act (“SCUPTA”). On September 9, 2015, the court granted in part and denied in part Belfor's motion to dismiss and dismissed the Banks' SCUPTA claim without prejudice. Belfor filed a motion for summary judgment pertaining to its breach of contract claim and the Banks's negligence and negligence per se counterclaims, and motions to exclude the Banks's construction and antique experts on April 11, 2016. The court issued an order dated July 14, 2016, granting the motions to exclude, and granting in part and denying in part the motion for summary judgment as to the Banks's counterclaims (“July 2016 order”). ECF No. 65. On July 20, 2016 the Supreme Court of South Carolina suspended the Banks's previous counsel, David Collins (“Collins”), from the practice of law. ECF No. 73, Ex. A, South Carolina Supreme Court Order.

         The Banks filed the present motion to set aside judgment on August 30, 2016. ECF No. 73. Belfor filed a response on September 16, 2016. ECF No. 77. The Banks filed a reply on September 26, 2016. ECF No. 78. The motion has been fully briefed and is now ripe for the court's review.

         II. STANDARD

         Federal Rule of Civil Procedure 60(b) provides:

[o]n 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 ...

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