Rhoads v. Washington Mutual Bank, F.A. et al

Filing 27

ORDER: 26 Plaintiff's Motion for Relief Pursuant to FRCP 60(b)(6) is denied. See order for details. Signed by Judge Neil V Wake on 8/5/11. (NKS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Douglas C. Rhoads,

10

Plaintiff,

11

vs.

12
Washington Mutual Bank, F.A., et al. ,
13
Defendants.
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV-10-00197-PHX-NVW
ORDER

15
16

Before the Court is Plaintiff’s Motion for Relief Pursuant to FRCP 60(b)(6) (Doc. 26).

17

Plaintiff claims he is entitled to relief from this Court’s final judgment dismissing his case

18

on April 22, 2010 (Doc. 25).

19

I.

Background

20

This action arises out of Plaintiff’s loan obligation for property located at 4834 East

21

Crystal Lane in Paradise Valley, Arizona. Plaintiff made loan payments until 2008, when

22

he unsuccessfully sought a loan modification. On September 25, 2008, Chase acquired

23

certain assets, including a number of notes and deeds of trust, from Plaintiff’s lender

24

Washington Mutual. On December 30, 2008, a Notice of Trustee’s Sale was recorded which

25

named Chase as the beneficiary, setting the trustee’s sale for April 2, 2009. On September

26

15, 2009, Rhoads filed a complaint in the Maricopa County Superior Court. The property

27

was sold at a trustee’s sale on January 5, 2010. On January 28, 2010, Defendants removed

28

the case from the state court to federal court (Doc. 1).

1

This Court granted Defendants’ motion to dismiss on April 7, 2010 (Doc. 23). That

2

order dismissed all of Plaintiff’s counts against California Reconveyance Company and most

3

of the counts against JPMorgan Chase Bank with prejudice. However, Plaintiff was given

4

leave to file an amended complaint with respect to Counts Eight, Thirteen, Fourteen, and

5

Seventeen against JPMorgan Chase Bank by April 20, 2010 (Doc. 23). Additionally, the

6

Court denied Plaintiff’s request for leave to amend his complaint because Plaintiff failed to

7

comply with LRCiv 15., without prejudice to seeking leave to amend in compliance with the

8

Local Rules of Civil Procedure by April 13, 2010. Finally, Plaintiff was ordered to show

9

cause by April 20, 2010 why the case should not be dismissed with respect to the remaining

10

defendants who had not yet been served. Because Plaintiff failed to file an amended

11

complaint or respond to the order to show cause, the Court entered judgment on April 22,

12

2010, dismissing the case with prejudice against Defendants California Reconveyance

13

Company and JPMorgan Chase Bank, and without prejudice against the defendants who had

14

not been served (Docs. 24, 25).

15

II.

Legal Standard

16

Federal Rule of Civil Procedure 60(b) provides the bases on which a party can seek

17

relief from a final judgment of the Court. Rule 60(b)(1)-(5) provide specific grounds for

18

seeking relief. Rule 60(b)(2) applies where a party obtains “newly discovered evidence that,

19

with reasonable diligence, could not have been discovered in time to move for a new trial

20

under Rule 59(b).” Under Rule 60(b)(3), a party may seek relief from a judgment where

21

there has been “fraud (whether previously called intrinsic or extrinsic), misrepresentation,

22

or misconduct by an opposing party.” A party seeking relief from a judgment under Rule

23

60(b)(1)-(3) must make his motion “no more than a year after the entry of the judgment . .

24

. .” Fed. R. Civ. P. 60(c)(1). Motions made under Rule 60(b)(4)-(6) must be made “within

25

a reasonable time.” Id.

26

Rule 60(b)(6) applies in extraordinary circumstances not otherwise addressed by Rule

27

60(b)(1)-(5) and allows for relief for “any other reason that justifies relief.” The purpose of

28

Rule 60(b)(6) is to “vest power in courts adequate to enable them to vacate judgment
-2-

1

whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335

2

U.S. 601, 614-15 (1949). The Court of Appeals for the Ninth Circuit has applied this

3

“extraordinary circumstances” standard of relief under Rule 60(b)(6) not to reward litigants

4

who “seek[] a second bite at the apple” or who ask for reconsideration while “ignor[ing]

5

normal legal recourses” such as an appeal, but rather to avoid inequitable results and

6

accomplish justice. See In re Pac. Far E. Lines, Inc., 889 F.2d 242, 250 (9th Cir. 1989)

7

(ordering the refund of part of a $776,000 payment paid by the trustee of the debtor

8

corporation in bankruptcy in light of a subsequent change in the law).

9

III.

Analysis

10

Plaintiff seeks relief under Fed. R. Civ. P. 60(b)(6) “because, by error or design,

11

Defendant JP Morgan Chase (“Chase”), misled this Court about its role and authority at the

12

time of dismissal.” (Doc. 26 at 1.) Plaintiff claims that JP Morgan Chase “falsely

13

represented”

14

17

(1) that the sale of assets had been finalized; (2) that Chase owned the
assets—including the trust assets where Rhoads’ note is allegedly pooled--- of WaMu
by a sale from the FDIC; (3) that Chase did not take on any liabilities of WaMu by the
sale of assets; and (4) that JP Morgan Chase was acting as an authorized agent of
Deutsche Bank National Trust Company as Trustee for WAMU 2003-AR7 in
ordering foreclosure of Rhoads’ deed of trust, and in seeking the Rhoads’ family’s
eviction from their home.

18

(Doc. 26 at 2.) Throughout his motion, Plaintiff makes clear that the basis on which he seeks

19

relief is that JP Morgan Chase has “distort[ed] the truth” and “made a material

20

misrepresentation to this federal court.” (Doc. 26 at 11). These assertions show Plaintiff

21

seeks relief because of Defendant’s fraud on the Court; however, a motion for relief from a

22

final judgment on the basis of fraud or misrepresentation by an opposing party properly falls

23

under Rule 60(b)(3), not Rule 60(b)(6). A claim for relief under Rule 60(b)(3) must be filed

24

within one year of the entry of judgment. Fed. R. Civ. P. 60(c)(1). Here, the judgment from

25

which Plaintiff seeks relief was entered on April 22, 2010 (Doc. 25), but Plaintiff did not file

26

his Rule 60(b) motion until July 28, 2011 (Doc. 26). Because Plaintiff’s motion was not

27

timely filed, it will be denied.

15
16

28
-3-

1

Plaintiff also notes that he did not discover JP Morgan Chase’s alleged

2

misrepresentations until after his case was dismissed with prejudice. (Doc. 26 at 6, 11.) To

3

the extent that Plaintiff thus bases his motion on newly discovered evidence, Rule 60(b)(6)

4

is not the proper authority; rather, a motion made on the basis of newly discovered evidence

5

falls under Rule 60(b)(2). Motions made under Rule 60(b)(2) must also be made within one

6

year of the entry of the judgment. Fed. R. Civ. P. 60(c)(1). Accordingly, Plaintiff’s motion

7

is untimely.

8

Because Plaintiff’s motion falls under the ambit of Rule 60(b)(2) and (3) and is

9

therefore untimely made, and Plaintiff has not otherwise provided any extraordinary grounds

10
11
12
13

on which to justify relief under Rule 60(b)(6), his motion will be denied.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Relief Pursuant to FRCP
60(b)(6) (Doc. 26) is denied.
DATED this 5th day of August, 2011.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-