Free Motion to Vacate - District Court of Connecticut - Connecticut

Case 3:00-cv-00887-WWE

Document 194

Filed 12/17/2003

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

J.R., by and through her parents and next friends, MR. & MRS. R., MR. AND MRS. R., PLAINTIFFS vs. WATERBURY BOARD OF EDUCATION, ET AL. DEFENDANTS

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CIVIL ACTION NO. 300CV0887 (WWE)

OCTOBER 24, 2003

MOTION TO VACATE DISMISSAL, MODIFY STIPULATION AND DISMISS PURSUANT TO MODIFIED STIPULATION The plaintiffs move, pursuant to Rule 60(b), Fed. R. Civ. P., for an order vacating the Stipulated Order of Dismissal entered by this Court on July 2, 2003. The plaintiffs request that the Court then approve the attached Amended Stipulated Order of Dismissal and dismiss this lawsuit pursuant to Rule 41(a)(1), subject to the terms of the Stipulation. In support of this Motion, the plaintiffs represent the following: 1. On July 2, 2003 the Court approved the Stipulated Order of Dismissal that had been agreed to by all counsel of record. 2. Paragraph 2 of that Stipulated Order provides in relevant part: 2. The $585,000 payment referred to in paragraph one (1) above, less costs in the amount of $12,085.51 and attorneys' fees in the amount of $189,638.16, or

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$383,276.33 shall be paid directly into a Medicaid Qualifying Trust pursuant to 42 U.S.C. § 1396p(d)(4)(A). ... 3. This proposed distribution of the settlement funds was approved by order of the Waterbury Probate Court on June 25, 2003 (Exhibit A). 4. On July 8, 2003 the Connecticut Department of Administrative Services ("D.A.S.") appealed the Probate Court's approval to the Connecticut Superior Court. The D.A.S. argues, in relevant part, that the distribution of the settlement funds as required by paragraph 2 of the Stipulated Order of Dismissal, threatens to undermine enforcement of the State's liens (Exhibit B). 5. At the present time the State's liens on this file are as follows (Exhibit C): $1,417.00 for cash assistance paid to J.R. $383.00 for medical assistance provided J.R. 6. In addition, the Connecticut Department of Victim Services claims $3,795.68 as a possible lien (Exhibit D). 7. In order to resolve D.A.S.'s appeal to the Superior Court insofar as it asserts that the Stipulated Order of Dismissal threatens to undermine the State of Connecticut's enforcement of

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statutory liens, the Waterbury Probate Court, on October 1, 2003, ordered the following distribution of the proceeds of the settlement of this lawsuit: Department of Administrative Services lien in the amount of $1,417.00 for cash assistance; Department of Administrative Services lien in the amount of $383.60 for medical assistance; Attorney fees in the amount of $189,638.16; and Court costs in the amount of $12,085.51. The sum of $3795.68 is to be held in escrow by Attorney David Shaw for a possible Victim Services lien. The net proceeds, after said payments, is to be delivered to Thomas Road [sic] and Carol Roach, trustees, to be held in accordance with the Trust Agreement on file with this Court. (Exhibit E.) 8. This Order of the Waterbury Probate Court is inconsistent with paragraph 2 of the Stipulated Order of Dismissal entered by this Court in that it requires Attorney Shaw to pay $1,800.60 directly to D.A.S. to satisfy the State's liens and to hold $3,795.68 in escrow, rather than to pay those amounts "directly into a Medicaid Qualifying Trust." 9. Rule 60(b), Fed. R. Civ. P., provides that a federal court may, and upon such terms as are just, relieve a party or his legal representative from a final judgment, order or proceeding for

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"(6) any other reason justifying relief from the operation of judgment" provided the motion is made in a reasonable time. 10. Rule 60(b) provides further that a motion made pursuant to Rule 60(b) "does not affect the finality of the judgment or suspend its operation." 11. Plaintiffs submit that the inconsistency in the Stipulated Order of Dismissal and the Waterbury Probate Court Order puts plaintiffs' counsel in the position of not being able to complete the distribution of settlement funds without violating one of these orders. 12. Plaintiffs submit that this inconsistency in the orders is sufficient reason under Rule 60(B) to vacate and modify the Stipulated Order of Dismissal previously entered by this Court. 13. The plaintiffs therefore move for modification of paragraph 2 of the Stipulated Order of Dismissal to resolve this inconsistency so as direct payments of the State liens as specified in paragraph 7 above can be made. 14. The Stipulation has been agreed to by all counsel of record. WHEREFORE, the plaintiffs request that the Court enter the attached Amended Stipulated Order of Dismissal to permit the payment of the state liens total of $1,800.60 directly from the proceeds of the settlement, the withholding of $3,795.68 in escrow for a possible

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Victim Services lien as ordered by the Probate Court, the payment of costs and attorneys' fees as previously ordered, and payment of the balance of the settlement funds directly into the Medicaid Qualifying Trust established by order of the Waterbury Probate Court.

PLAINTIFFS By_/s/ David C. Shaw____________ David C. Shaw, Esq. 34 Jerome Ave., Suite 210 Bloomfield, CT 06002 Tel. (860) 242-1238 Fax. (860) 242-1507 DEFENDANTS, WATERBURY BOARD OF EDUCATION, CITY OF WATERBURY, BARBARA WIGGINS, ELIZABETH GALLAGHER, VALERIE STOLFI By /s/Charles E. Oman, III________ Charles E. Oman, III, Esq. Office of Corporation Counsel, City of Waterbury 236 Grand St. Waterbury, CT 06702 Tel. (203) 574-6732 DEFENDANTS, LAIDLAW TRANSIT, INC., JANE DOE By_/s/ Frederick J. Trotta, Sr._______ Frederick J. Trotta, Sr., Esq. LoRicco, Trotta & LoRicco LLC 216 Crown Street, Suite 502 New Haven, CT 06510 Tel. (203) 865-3123

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DEFENDANTS, CONNECTICUT BOARD OF EDUCATION, THEODORE SERGI, GEORGE DOWALIBY

By /s/ Ralph E. Urban______ Ralph E. Urban, Esq. Assistant Attorney General State of Connecticut P.O. Box 120 Hartford, CT 06141 0120

DEFENDANTS, GOODWILL INDUSTRIES OF WESTERN CONNECICUT, INC., LAUREL JORDAN, MARIE CASTRO AND ILONA LEFFINGWELL

By_/s/ James L. Brawley______ James L. Brawley, Esq. Morrison, Mahoney & Miller LLP One Constitution Plaza Hartford, CT 06103 Tel. (860) 616-4441

DEFENDANTS, SECURITY SERVICES OF CONNECTICUT, INC. AND JOSHUA VEGA

By_/s/ Jon S. Berk__________ Jon S. Berk, Esq. Gordon, Muir and Foley, LLP Hartford Square North 10 Columbus Blvd. Hartford, CT 06106 5123 Tel. (860) 525-5361

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