Joseph A. Fessler; Ann Fessler v. Kirk Sauer Community Development City of Wilkes Barre

CLD-073 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 09-4100
___________
JOSEPH A. FESSLER; ANN FESSLER,
Appellants
v.
KIRK SAUER COMMUNITY DEVELOPMENT CITY OF WILKES BARRE;
RICHARD GELHARD, Ex Deputy Executive Director Wilkes Barre; LEWIS
ATTORDO; JOHN G. BRAVACOS, Area Director Department of Housing and Urban
Development; PAUL CAIN, Ex Area Director of Housing and Director of Housing and
Urban Development; ALPHONSON JACKSON, Secretary of Housing and Urban
Development; MARTIN C. CARLSON; HOUSING URBAN DEVELOPMENT;
ACTING US ATTORNEY
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 07-cv-1939)
District Judge: Honorable Thomas I. Vanaskie
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6(a)
December 17, 2009
Before: BARRY, FISHER AND VAN ANTWERPEN, Circuit Judges
(Opinion filed: January 28, 2010)
___________
OPINION
PER CURIAM

-- 1 of 4 --

2
Joseph Fessler and Ann Fessler (“the Fesslers”) appeal from an order of the United
States District Court for the Middle District of Pennsylvania denying their motion entitled
“Requestin [sic] Countersuit Against Kirk Sauer Community Development Wilkes Barre,
PA. Motion for Sanctions.” For the reasons set forth below, we will summarily affirm.
See I.O.P. 10.6.
In 1973, the Fesslers’ property was taken by eminent domain by the City of
Wilkes-Barre, Pennsylvania. Following a denial of what they deemed an adequate
relocation benefit, the Fesslers filed numerous state and federal lawsuits against the City
of Wilkes-Barre Redevelopment Authority and the United States Department of Housing
and Urban Development.
On October 24, 2007, the Fesslers, proceeding pro se, filed an action in the District
Court against several current and former employees of the Wilkes-Barre Redevelopment
Authority and the Department of Housing and Urban Development related to their
dissatisfaction with the City of Wilkes-Barre’s denial of a relocation payment to the
Fesslers. The Defendants moved to dismiss the case and the Fesslers moved for default
judgment against Defendant Alphonso Johnson on grounds that he failed to timely answer
their Complaint.
On August 22, 2008, the District Court granted Defendants’ motions to dismiss the
case and denied the Fesslers’ motion for default judgment. The Fesslers filed a timely
appeal to this Court and we summarily affirmed the judgment of the District Court. See

-- 2 of 4 --

The Defendants in the case had previously filed a motion for sanctions and attorneys1
fees against the Fesslers which the District Court denied.
3
Fessler v. Sauer, C.A. No. 08-3645 (March 16, 2009).
In September 2009, the Fesslers filed in the District Court the current motion
entitled “Requestin [sic] Countersuit Against Kirk Sauer Community Development
Wilkes Barre, PA. Motion for Sanctions.” The District Court denied the motion without1
opinion and the Fesslers have appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The District Court
appropriately denied the Fesslers’ motion. By the time that the Fesslers filed their motion
in the District Court, final judgment had already been entered in their case. Because the
Fesslers’ motion did not seek relief under a specific Federal Rule of Civil Procedure, and
mindful that Federal Rules of Civil Procedure 59 and 60 govern the opening of final
judgments, we consider whether the motion should have been characterized as a motion
for relief thereunder. It should not have been.
First, the Fesslers would not have been entitled to relief under Rule 59(e) as the
motion was filed beyond the ten days provided for under the Rule. See Fed. R. Civ. P.
59. Second, the Fesslers would not have been entitled to relief under Rule 60(b) as the
they did not set forth any basis for granting relief under the Rule, including the catch-all
provision in Rule 60(b)(6) that allows a court to relieve a party from a judgment for “any
other reason that justifies relief.” See Fed. R. Civ. P. 60; see also Budget Blinds, Inc. v.

-- 3 of 4 --

White, 536 F.3d 244, 251 (3d Cir. 2008). Even construing the motion liberally, we
cannot discern any conceivable basis to reopen the judgment.
As there is no substantial question presented by this appeal, we will summarily
affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Appellants’ document entitled “Payment
of Legal Fees,” which appears to seek an order from this Court directing the Appellees to
pay Appellants’ legal fees, is denied.
4

-- 4 of 4 --