United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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 ...