Connell v. CitiMortgage, Inc.

Filing 12

ORDER re 11 Motion for Reconsideration of 2nd unopposed motion tot extend time to answer; the court DENIES the motion to the extent it requests reconsideration of the previous order, but GRANTS the requested relief for the reasons set out in order. Defendant shall file a RESPONSE to the complaint by 10/4/11. Signed by Magistrate Judge William E. Cassady on 9/20/2011. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRON CONNELL, individually
and on behalf of all similarly situated
individuals,

:

Plaintiff,

:

vs.

:

CITIMORTGAGE, INC.,

:

Defendant.

CA 11-0443-C

:
ORDER

The defendant has filed a “Motion to Reconsider Denial Without Prejudice of
[It’s] Second Unopposed Motion to Extend Time to Answer or Otherwise Respond to
Plaintiff’s Complaint” (Doc. 11). The Court DENIES the motion to extent it requests
reconsideration of the previous order, but GRANTS the requested relief for the reasons
set forth below. The defendant SHALL file a response to the complaint no later than
October 4, 2011, and no further requests for extension will be considered absent a
showing of exceptional circumstances.
Background
On September 2, 2011, the Court granted the defendant’s original motion for
extension of time (Doc. 7), filed September 1, 2011, (see Doc. 8), finding that even though
that motion did “not provide the Court with a particular reason why the defendant has
not been able to complete its investigation into the plaintiff’s claims,” it should
nonetheless be granted because it was unopposed; due to the class allegations in the

complaint, all parties would “benefit from a thoughtful initial response by the
defendant”; and the timing of the motion indicated that this was “likely” not filed
because “of mere inadvertence, forgetfulness, or procrastination” (id. at 2 (citation and
internal quotation marks omitted). The second motion (Doc. 9), filed September 15,
2011—which was substantively identical to the first motion—was denied without
prejudice on September 16, 2011 (see Doc. 10) because, especially in light of the previous
motion and order, that motion did not meet the minimal showing of good cause
required by Rule 6(b)(1)(A) (see id. at 2). As to that motion, the Court further noted that
while it “appreciate[d] that delays are sometimes unavoidable, the motion [was] due to
be [denied] because it simply [did] not explain what has caused the need for a second
extension” (id. at 2).
Reconsideration Standard
A “motion to reconsider” may fall within the purview of both Rule 59(e) and Rule
60(b). Compare Penn. Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D. Pa. 1992) (“A
motion for reconsideration of a final judgment will generally be construed as a motion
under Federal Rule of Civil Procedure 59(e) to alter or amend the judgment if the motion
does not cite a specific federal rule.”), with Preserve Endangered Areas of Cobb’s History
(PEACH), Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995) (“[T]he
term ‘motion for reconsideration,’ as such, does not appear in the Federal Rules of Civil
Procedure. The title of [Rule] 60(b), under which a so-called motion for reconsideration
may be brought, further attests to its extraordinary nature. . . .
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[Rule 60(b)] is properly

invoked where there are extraordinary circumstances, or where the judgment may work
an extreme and undue hardship”), judgment aff’d, 87 F.3d 1242 (11th Cir. 1996) (internal
quotation marks omitted).

Regardless, under either rule, the standard for

reconsideration is the same, and
the decision to grant a motion for reconsideration is committed to the
sound discretion of the trial court and will not be overturned on appeal
absent an abuse of discretion. [Region 8 Forest Serv. Timber Purchases
Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).] The purpose of a
motion for reconsideration is to correct manifest errors of law, to present
newly discovered evidence, or to prevent manifest injustice. Burger King
Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002). In
order to reconsider a judgment, there must be a reason why a court should
reconsider its prior decision, and the moving party must set forth facts or
law of a strongly convincing nature to induce the court to reverse its prior
decision. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994). A motion for reconsideration should not be used to reiterate
arguments previously made. Burger King Corp., 181 F.Supp.2d at 1369.
Reconsideration of a previous order is an extraordinary remedy to be
employed sparingly. Id.
Davidson v. Orange Lake Country Club, Inc., No. 6:06-cv-1674-Orl-19KRS, 2008 WL 596120,
at *2 (M.D. Fla. Feb. 29, 2008); cf. Deerskin Trading Post, Inc. v. United Parcel Serv. of Am.,
Inc., 972 F. Supp. 665, 674 (N.D. Ga. 1997) (“[A] motion for reconsideration is not an
opportunity for the moving party and their counsel to instruct the court on how the
court ‘could have done it better’ the first time.”) (quoting PEACH, 916 F. Supp. at 1560).
Discussion
A.

Reconsideration Denied.

The defendant has not presented a reason for the Court to revisit its previous
ruling by providing newly discovered evidence, identifying an intervening development
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or change in controlling law, or indicating the need for the Court to correct a clear error
of law or prevent a manifest injustice. Because the defendant simply wants a different
ruling, the Court has no choice but to deny the motion to the extent it requests
reconsideration. Cf. Deerskin Trading Post, 972 F. Supp. at 674.
B.

Extension of Time Nevertheless Provided.

The Court’s previous order stated, however, that the motion at issue was being
denied without prejudice and encouraged the filing of an amended motion, providing:
The defendant may, however, file an amended motion that sufficiently
shows that the defendant has diligently investigated the plaintiff’s claims
and its failure to complete such an investigation and prepare a response to
the complaint is not due to inadvertence or procrastination.
(Doc. 10 at 2.)
The motion for reconsideration provides the Court with some insight into why
additional time is being requested by indicating that the defendant intends to file a
substantive motion to dismiss the plaintiff’s complaint, which presents an issue of first
impression in this circuit. (See Doc. 11, ¶¶ 1-2; compare id., with Doc. 9 at 1 (providing
only that the defendant “continues to investigate” the plaintiff’s allegations, and as such,
needs the requested additional time “to either respond . . . or move to dismiss,” which is
the same excuse the plaintiff provided in its original motion for extension of time, see
Doc. 7 at 1.) As such, the Court finds that the defendant has made the showing required
by the Court’s previous order.
Conclusion
For the reasons set forth above, the motion for reconsideration is DENIED, but
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the Court nevertheless finds that the defendant has made the requisite showing for an
additional extension of time within which to respond to the plaintiff’s complaint.
Accordingly, the defendant shall respond to the complaint no later than October 4, 2011.
And, as provided above, no further requests for extension will be considered absent a
showing of exceptional circumstances.
DONE and ORDERED this the 20th day of September, 2011.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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