                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-16-2009

Richard Coppola Jr. v. Travelers Indemnity
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2885




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"Richard Coppola Jr. v. Travelers Indemnity" (2009). 2009 Decisions. Paper 1739.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1739


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                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2885
                                       ___________

                              RICHARD J. COPPOLA, JR.,
                                                Appellant
                                         v.

                        TRAVELERS INDEMNITY COMPANY,
                                d/b/a St. Paul Travelers
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civil No. 2:07-cv-00039)
                      District Judge: Honorable Harvey Bartle, III
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 10, 2009
         Before: Chief Judge SCIRICA, CHAGARES and WEIS, Circuit Judges
                          Opinion filed
                                      _________

                                         OPINION
                                        _________

PER CURIAM.

              Richard Coppola, proceeding pro se, appeals the order of the United States

District Court for the Eastern District of Pennsylvania denying both his motion to vacate

the court’s order of dismissal and his motion to strike the affidavit of his former counsel.



                                              1
For the reasons that follow, we will affirm.

              In December 2006, Coppola, who held a homeowner’s insurance policy

with Travelers Indemnity Company (“Travelers”), commenced the instant action by filing

a pro se complaint against Travelers in the Bucks County Court of Common Pleas.

Travelers removed the case to the Eastern District of Pennsylvania. Coppola retained

counsel, who filed an amended complaint for compensatory and punitive damages,

alleging that Travelers wrongfully denied Coppola’s January 2006 insurance claim for

repairs to his roof and unreasonably increased his insurance premium.

              It appears that in August 2007 the parties tentatively reached a settlement,

but that a breakdown in the attorney-client relationship between Coppola and his counsel,

Steven and Andrew Cotlar, stalled efforts to finalize the agreement. In September 2007,

the Cotlars moved to withdraw, which the court granted shortly thereafter. Coppola

proceeded pro se going forward.

              Despite the lack of an executed settlement agreement, both parties seemed

to believe that they had reached a settlement, although there was some disagreement as to

the terms. In November 2007, Coppola and Travelers each filed a motion to enforce their

respective versions of the settlement. As these motions were pending, the parties

executed a written settlement agreement on March 5, 2008. The court was notified of the

settlement that same day, and in turn entered an order dismissing the case with prejudice




                                               2
pursuant to Local Rule 41.1(b).1 The order did not recite the terms of the settlement or

express the court’s intent to retain jurisdiction over the settlement’s enforcement; rather,

it noted merely that the court was informed that the parties had reached a settlement.

               On March 31, 2008, Coppola filed a motion to vacate the court’s order of

dismissal. He argued that the settlement included a requirement – a requirement not

contained in the written agreement – that the Cotlars return the entire case file (apart from

documents containing confidential information as to Travelers) to Coppola. Coppola

asserted that the Cotlars had provided only a portion of the case file and that the

settlement was therefore null and void. Coppola sought monetary sanctions against

Steven Cotlar, as well as a redrafting of the settlement agreement to include both the

above-noted provision and a provision requiring Steven Cotlar to provide a signed

affidavit stating that he had surrendered the entire case file and not retained any copies of

the file’s contents.




               1
                   Local Rule 41.1(b) states:

               Whenever in any civil action counsel shall notify the Clerk or the judge to
               whom the action is assigned that the issues between the parties have been
               settled, the Clerk shall, upon order of the judge to whom the case is
               assigned, enter an order dismissing the action with prejudice, without costs,
               pursuant to the agreement of counsel. Any such order of dismissal may be
               vacated, modified, or stricken from the record, for cause shown, upon the
               application of any party served within ninety (90) days of the entry of such
               order of dismissal.

                                                3
              Travelers opposed Coppola’s motion, arguing that, because the case file

issue was not part of the settlement agreement but instead an ancillary dispute between

Coppola and his former counsel, reopening the case was unwarranted. Additionally,

Travelers filed an affidavit signed by Steven Cotlar, which stated that he had provided

Coppola with a copy of the case file, less only the confidential Travelers documents. In

response, Coppola filed a motion to strike the affidavit, arguing that it was false.

              On May 28, 2008, the District Court denied Coppola’s motion to vacate and

motion to strike. Coppola appealed this order on June 25, 2008. In a letter received by

this Court on July 14, 2008, Coppola confirmed that he was indeed appealing the May 28

order. Yet, Coppola states in his brief that he is appealing not only this order, but also the

District Court’s March 5 order of dismissal. That Coppola did not file his motion to

vacate within 10 days of the order of dismissal gives us pause when considering whether

we have appellate jurisdiction over the March 5 order. Given that Coppola does not seem

to contest that the parties had reached a settlement – which is all that is reflected in the

March 5 order – we understand his argument as contesting the District Court’s failure to

reopen the case to address the case file issue. Accordingly, this appeal turns on a review

of the District Court’s May 28 order.

               We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and

review the District Court’s decision denying the reopening of Coppola’s case for abuse of

discretion. See Reform Party v. Allegheny County Dep’t of Elections, 174 F.3d 305, 311



                                               4
(3d Cir. 1999) (articulating standard for review of motion pursuant to Fed. R. Civ. P.

60(b)). A district court abuses its discretion when its decision is based on “a clearly

erroneous finding of fact, an erroneous legal conclusion, or an improper application of

law to fact.” United States v. Allegheny Ludlum Corp., 366 F.3d 164, 177 (3d Cir. 2004).

                Coppola has failed to establish that the District Court abused its discretion

in denying his motion to vacate the court’s order of dismissal. The court’s order of

dismissal did not recite the terms of the settlement, nor did it indicate the court’s intent to

retain jurisdiction over the settlement after the case’s dismissal. Accordingly, to the

extent Coppola’s motion to vacate sought the District Court’s enforcement of Coppola’s

version of the settlement agreement, the court lacked jurisdiction to provide this relief.

See Sawka v. Healtheast, Inc., 989 F.2d 138, 141 (3d Cir. 1993) (holding that a district

court does not have the authority to enforce a settlement agreement that “is the basis of,

but not incorporated into, an order or judgment of the court”); see also In re Phar-Mor,

Inc. Sec. Litig., 172 F.3d 270, 274 (3d Cir. 1999) (stating that a “dismissal order’s mere

reference to the fact of settlement does not incorporate the settlement agreement in the

dismissal order” (quoting Miener v. Mo. Dep’t of Mental Health, 62 F.3d 1126, 1128 (8th

Cir. 1995))).

                To the extent the District Court had jurisdiction to provide any of the relief

sought by Coppola in his motion to vacate, he failed to demonstrate cause for reopening

the case under Local Rule 41.1(b) or Fed. R. Civ. P. 60(b). Although Coppola argued that



                                               5
the return of his case file was a condition of the settlement, the executed agreement

directly undermines his position. The agreement does not contain this provision and

clearly states that the terms of the settlement are limited to those contained in the

agreement itself. Coppola now seems to have abandoned his argument, as his brief does

not even mention the case file issue, instead arguing that the version of the settlement

referenced in his November 2007 motion to enforce – which did not address the case file

issue – is the version of the settlement that should be enforced.2 In any event, even if the

case file provision was part of the settlement, Coppola did not provide enough evidence

that the provision was unfulfilled to render the court’s denial of his motion to vacate and

motion to strike Steven Cotlar’s affidavit an abuse of discretion.

              Accordingly, we will affirm the District Court’s denial of Coppola’s motion

to vacate and motion to strike.




              2
                It is curious as to why Coppola now seeks the enforcement of the version
of the settlement referenced in his motion to enforce. This version of the settlement
contained two provisions, both of which were included in the executed written agreement,
and both of which appear to have already been fulfilled by the parties. In any event,
Coppola did not raise this argument in his motion to vacate and therefore has waived this
argument on appeal. See, e.g., Gass v. V.I. Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002).
