Graveling v. Bank United N.A., et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/24/2014. (JLC)
2014 Oct-24 PM 04:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES GRAVELING AND LORI
SIROTE & PERMUTE, P.C., and
) Case No.: 2:13-cv-120-VEH
Following this court’s Final Judgment Order on October 15, 2014, plaintiffs
James Graveling and Lori Graveling (“the Gravelings”) filed several documents on
October 21, 2014. (Docs. 117-122). Collectively, these documents contain a motion
to recuse, a motion to reconsider this court’s August 27, 2013, “Order Granting In Part
and Denying In Part Motions to Dismiss” (doc. 63), and a motion to reconsider this
court’s September 5, 2013, “Order Denying Motion for Entry of Default and Motion
for Default Judgment, Denying Motion for Summary Judgment” (doc. 64).1
The documents are voluminous and difficult to place within the context of
the Rules of Civil Procedure. To the extent that the Gravelings asserted any
requests for relief other than those identified in this Opinion, they are due to be
denied as insufficiently pleaded. “While the Court reviews pro se pleadings with
notable leniency, it cannot read minds.” Jerome v. Barcelo Crestline, Inc., 2007
WL 4224782 (N.D. Ga. Nov. 27, 2007).
The Gravelings initiated this case on January 18, 2013, by filing a motion for
preliminary injunction. (Doc. 1). After being ordered by the court to do so, they filed
an amended complaint. (Doc. 6). They brought six claims: separate counts for fraud
against Castle Mortgage Company ("Castle") and against Coastal, a count for
wrongful foreclosure against BankUnited, N.A. ("BankUnited"), a count for illegal
foreclosure sale auction against Andrew Benefield ("Mr. Benefield"), a count for
refusal to cease debt collecting in violation of the Fair Debt Collection Practices Act
("FDCPA") against Coastal, and a count for refusal to cease debt collecting in
violation of the FDCPA against Sirote, Rutledge, and Ryan Daugherty ("Mr.
Daugherty"). On August 27, 2013, the court granted a motion to dismiss the
Gravelings’ claims as against Castle, BankUnited, Mr. Benefield, and Mr. Daugherty.
(Doc. 63). On December 4, 2013, the court dismissed with prejudice their claims
against Coastal for failure to prosecute. (Doc. 82). In the Final Judgment Order on
October 15, 2014, the court dismissed the Gravelings’ remaining claims against Sirote
and Rutledge with prejudice.
For the following reasons, these motions, and all other relief sought in the
Gravelings’ documents, are DENIED.
The Motion to Recuse is Without Merit
The Gravelings request that this court recuse itself on the grounds of bias and
partiality. (Doc. 122 at 2, 14-15). However, their request to recuse is based solely on
previous rulings that this court has made in this case. (See Doc. 122). According to the
Supreme Court, a bias challenge based only on the judge’s decisions is supported only
if either (1) the judge had formed an opinion of the case based on facts introduced or
events occurring outside of the proceedings or of prior proceedings (an “extrajudicial
source”) or (2) the judge displayed “such a high degree of favoritism or antagonism
as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994). The Gravelings have not alleged that the court relied on any extrajudicial
source. Likewise, this court has not displayed any extreme attitude towards the parties
so as to make fair judgment impossible. Therefore, the motion to recuse is without
merit and due to be DENIED.
The Motion to Reconsider the August 27, 2013 Order on Motions To
Dismiss is Untimely and, Alternatively, Without Merit
The Gravelings also have made a motion for the court to reconsider its August
27, 2013, Order Granting In Part and Denying In Part Motions to Dismiss. (Doc. 121).
There are several features of this motion that make it due to be denied. First, it is
untimely under the court’s February 5, 2013, Uniform Initial Order in this case, which
states that “motions for reconsideration must filed within ten days of the date of the
court’s ruling which the movant seeks to have reconsidered.” (Doc. 4 at 26). The
Gravelings waited over a year after the court’s order to file the pending motion for
reconsideration. It is also untimely under FED. R. CIV. PRO. 59(e), which governs
motions to alter or amend a judgment. The party is required to file such a motion “no
later than 28 days after the entry of the judgment.”
Finally, the motion does not meet the standards of FED. R. CIV. PRO. 60(b),
which allows a court to “relieve a party or its legal representative from a final
judgment, order, or proceeding” under any of several grounds:
(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 by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. PRO. 60(b). The only colorable argument that the Gravelings could make
is under 60(b)(2) for newly discovered evidence, in the form of the “Full Transcription
of Recording of Brian Dodson on 027072013." (Doc. 119). However, this
transcription is not newly discovered evidence; rather, it is a document that the
Gravelings have newly created to memorialize a conversation they had on February
7, 2013, with Brian Dodson. (Doc. 119 at 2-3). As the Gravelings already had
knowledge of this conversation and had even made this court aware of it (see doc. 119
at 3, stating “three sworn affidavits by eyewitnesses to the recording . . . [were] earlier
entered on count records’), this document does not introduce new evidence. None of
the other specific subsections are conceivably applicable to the Gravelings’ case, and
the court sees no “other reason that justifies relief” under 60(b)(6). Therefore, this
motion to reconsider is due to be DENIED.
Motion to Reconsider Denial of Motions for Entry of Default and
Default Judgment and for Summary Judgment is Untimely and
Finally, the Gravelings make a motion for reconsideration of the September 5,
2013, “Order Denying Motion for Entry of Default and Motion for Default Judgment,
Denying Motion for Summary Judgment.” (See Doc. 120). As is the case with the
motion discussed in the previous section (supra), this motion is untimely under the
court’s Uniform Initial Order and FED. R. CIV. PRO. 59(e), which governs motions to
alter or amend a judgment. Furthermore, the motion to reconsider would be without
merit under the standard of R. 59(e). It also fails to qualify under any of the categories
(listed supra) justifying relief from an order according to FED. R. CIV. PRO. 60(b).
Therefore, this motion to reconsider is also due to be DENIED
Based upon the court’s review of the filings, the plaintiffs’ motions are due to
be DENIED. A separate order will be entered.
DONE and ORDERED this the 24th day of October, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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