Nos. 09-3685/09-3812 JOHN J. KORESKO, V; PENNMONT BENEFIT SERVICES, INC v. Jeff Bleiweis

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 09-3685/09-3812
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JOHN J. KORESKO, V; PENNMONT
BENEFIT SERVICES, INC,
Appellants in 09-3685
v.
JEFF BLEIWEIS; RAYMOND
ANKNER; CJA AND ASSOCIATES, INC; METLIFE INSURANCE
COMPANY, F/K/A THE TRAVELERS LIFE AND ANNUITY COMPANY
__________
JOHN J. KORESKO, V; PENNMONT
BENEFIT SERVICES, INC,
v.
JEFF BLEIWEIS; RAYMOND
ANKNER; CJA AND ASSOCIATES, INC.; METLIFE INSURANCE
COMPANY, F/K/A THE TRAVELERS LIFE AND ANNUITY COMPANY
Metlife Insurance
Company,
Appellant in 09-3812
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 04-cv-769)
District Judge: Hon. Juan R. Sanchez

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Submitted Pursuant to Third Circuit LAR 34.1(a)
Monday, January 24, 2011
Before: McKEE, Chief Judge, SMITH, Circuit Judge,
and STEARNS, 1 District Judge
(Opinion Filed: March 28, 2011)
OPINION
McKEE, Chief Judge.
John Koresko appeals the district court’s order denying his Rule 60(b) motion to
dismiss. MetLife Insurance Company cross-appeals alleging that the district court erred
in denying its motion to dismiss pursuant to the Gist of the Action doctrine. For the
reasons that follow, we will affirm the district court’s order denying the Rule 60(b)
motion; the cross-appeal is therefore moot.
I.
Since we write primarily for the parties, we will only set forth those facts that are
helpful to our brief discussion of the issues. On October 8, 2008, the court warned
Koresko pursuant to Local Rule 41.1(a) that his suit would be dismissed due to inactivity
unless he filed a written statement of his intention to proceed with the case within thirty
days. On November 5, 2008, new counsel entered their appearance for Koresko and
notified the court that they intended to proceed with the litigation. However, on
1 Honorable Richard G. Stearns, District Court Judge, United States District Court for the
District of Massachusetts, sitting by designation.

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November 18, 2008, the newly obtained counsel withdrew. On December 17, 2008 the
court ordered Koresko to show cause why dismissal was not warranted. When the court
did not hear from Koresko, it dismissed this action with prejudice.
Thereafter, Koresko filed a motion to vacate the dismissal, alleging that he had not
received the December 17 order to show cause due to a clerical error.2 On July 17, 2009,
the motion was denied, but the court allowed Koresko an opportunity to file a renewed
motion explaining why the case had been inactive since November 2005. Koresko filed
the renewed motion to vacate the dismissal, and the court held a phone conference to
discuss the motion with both parties. On August 18, 2009, the motion was denied
because the court found that the proffered excuses were insufficient to justify the
extraordinary delay in the case. This appeal followed. 3
II.
Koresko argues that dismissal was an abuse of discretion because the court did not
consider the applicable factors set forth in Poulis v. State Farm Prop. & Cas. Co., 747
F.2d 863 (3d Cir. 1984), where we provided a framework for evaluating dismissals.
However, Koresko is appealing the denial of the motion to vacate the dismissal, rather
2 Koreskos’s secretary spoke with the clerk of the court and determined that the order was
not mailed to appellants because no contact information was provided on the docket and
the attorneys had all been terminated.
3 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion.
See Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 269 (3d Cir. 2002).

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than the dismissal itself. 4 An appeal from the denial of a Rule 60(b) motion does not
allow Koresko to appeal the final judgment dismissing the case. See Selkridge v. United
of Omaha Life Ins. Co., 360 F.3d 155, 161 n.3 (3d Cir. 2004). Therefore, the factors in
Poulis are not applicable.
In examining whether Koresko’s dereliction here could constitute “excusable
neglect”, we must evaluate “all relevant circumstances surrounding the party’s omission.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
Factors to consider include: “[1] the danger of prejudice . . . [2] the length of the delay
and its potential impact on judicial proceedings, [3] the reason for the delay, including
whether it was within the reasonable control of the movant, and [4] whether the movant
acted in good faith.” Id.; see also Chao v. Roy’s Constr., Inc., 517 F.3d 180, 183 (3d Cir.
2008) (applying the factors from Pioneer).
Here, the district court allowed Koresko ample opportunity to justify the
extraordinary delay. The dismissal occurred more than seven years after the initial action
was filed in state court, and more importantly, Koresko never moved the case beyond the
discovery phase. Instead, since 2005, the only activity arose from a revolving door of
various attorneys entering their appearance and then withdrawing from the case. Thus,
the district court clearly did not abuse its discretion in denying Koresko’s motion to
reconsider. Koresko’s attempt to resurrect his suit at this late hour is devoid of any merit.
4 While Koresko’s motion to vacate did not cite to a specific rule, “it was filed beyond ten
days of entry of judgment, [so] we view it as having been filed pursuant to Fed.R.Civ.P.
60(b)(1).” Lorenzo v. Griffith, 12 F.3d 23, 26 (3d Cir. 1993).

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As noted at the outset, MetLife Insurance Company filed a cross-appeal arguing
that even if we do not reject Koresko’s appeal, we should find that the district court erred
in denying its motion to dismiss pursuant to Pennsylvania’s Gist of the Action doctrine.
Because we will reject Koresko’s appeal, the cross-appeal will be dismissed as moot.
IV. Conclusion
For the foregoing reasons, we will affirm the district court’s order denying the
Rule 60(b)(1) motion, and dismiss the cross-appeal as moot.

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