Pope v. Aegis Wholesale Corporation et al

Filing 15

ORDER, granting in part and denying in part Plaintiff's motion to vacate judgment and permit filing of plaintiff's response to the motion to dismiss 8 , denying Plaintiff's motion to permit filing of her response to the motion to dism iss and granting Plaintiff's motion to vacate judgment; the Clerk's judgment 7 is vacated; our 11/17/11 order dismissing this action 6 is amended to reflect that the action is dismissed without prejudice; Plaintiff shall have up to and including 30 days to file an amended complaint that complies with Rule 8(a), Fed. R. Civ. P.; if she fails to comply with this order, the Clerk shall enter judgment of dismissal. Signed by Judge Frederick J Martone on 1/17/12. (REW)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 ) ) ) Plaintiff, ) ) vs. ) ) Aegis Wholesale Corp.; U.S. Bank NA,) solely as trustee for the Certificate Holders) of Maiden Lane Trust, Asset-Backed) Securities 1, Series 2007; Nationstar) Mortgage LLC; BlackRock Financial) Management Inc.; Federal Reserve Bank) ) of New York, ) ) Defendants. ) ) Dena Pope, 11 12 13 14 15 16 17 18 19 CV 11-02050-PHX-FJM ORDER 20 21 The court has before it plaintiff's motion to vacate order of dismissal and permit filing 22 of plaintiff's response to motion to dismiss (doc. 8), defendants U.S. Bank, Nationstar 23 Mortgage, BlackRock Financial Management, and the Federal Reserve Bank of New York's 24 ("defendants") response (doc. 9), and plaintiff's reply (doc. 13).1 25 Plaintiff's complaint challenges defendants' authority to proceed with a trustee's sale 26 on her property. Defendants filed a motion to dismiss arguing that the action should be 27 28 1 Defendant Aegis Corporation has not yet appeared. 1 dismissed both because it violated Rule 8(a), Fed. R. Civ. P. and because it failed to state a 2 claim under Rule 12(b)(6), Fed. R. Civ. P. Plaintiff's response was due on November 14, 3 2011, but plaintiff failed to respond. On November 17, 2011 we summarily granted 4 defendants' motion to dismiss pursuant to LRCiv 7.2(i) (doc. 6). We also noted that the 5 forty-five page complaint violated Rule 8(a), Fed. R. Civ. P. In accordance with our order, 6 the Clerk entered judgment (doc. 7). 7 Plaintiff moves that our order of dismissal and the Clerk's judgment be vacated, and 8 asks to file her response to the motion to dismiss. Plaintiff states that on November 14, 2011 9 (the date the response was due), she obtained an oral stipulation from defendants' counsel 10 that extended the time to file a response until November 28, 2011. However, due to staff 11 turnover in plaintiff's counsel's office, the filing of the stipulation "fell through the cracks." 12 Mot. to Vacate at 2. Defendants acknowledge agreeing to the extension of time. However, 13 they oppose the motion to vacate, stating that plaintiff has not established any ground for 14 relief set forth in Rule 60, Fed. R. Civ. P. for setting aside a judgment. Defendants argue that 15 it was plaintiff's responsibility to inform the court of the stipulated extension of time, and 16 failure to do so does not justify relief under this rule. Even if we set aside the judgment, 17 defendants argue that plaintiff should not be permitted to file her proposed response because 18 we already determined that the complaint violates Rule 8(a), Fed. R. Civ. P. and should at 19 least be dismissed on that basis. 20 Rule 60(b), Fed. R. Civ. P. permits us to set aside a final judgment or order for reasons 21 including "mistake, inadvertence, surprise, or excusable neglect." Id. 60(b)(1). Excusable 22 neglect encompasses negligence by lawyers. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 23 1223 (9th Cir. 2000). To determine whether inadvertence constitutes excusable neglect, we 24 apply the following factors: "(1) the danger of prejudice to the opposing party; (2) the length 25 of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) 26 whether the movant acted in good faith." Id. at 1223-24. Although plaintiff does not discuss 27 these factors, she provides relevant evidence. She notes that she obtained a stipulation from 28 defendants to extend her response time. Her counsel dictated a stipulation to counsel's staff, -2- 1 but this was not electronically filed due to staff turnover. We note the length of delay here 2 is minimal. Plaintiff filed the instant motion eleven days after the entry of judgment, and this 3 action was at its infancy when it was dismissed: no scheduling order had even been set. 4 Defendants have not argued that are prejudiced by the filing of this motion. The reason for 5 plaintiff's failure to respond is not strong. Plaintiff's counsel should have more closely 6 monitored his staff to ensure that the stipulation was filed, particularly since it was obtained 7 the same day his client's response to the motion to dismiss was due. But here, as in Bateman, 8 "there is no evidence that he acted with anything less than good faith." Id. at 1225. 9 Plaintiff's counsel sought and secured a stipulated extension of time from defendants' 10 counsel. His errors in filing the stipulation "resulted from negligence and carelessness, not 11 from deviousness or willfulness." Id. We conclude that there is excusable neglect justifying 12 plaintiff's relief from judgment under Rule 60(b), Fed. R. Civ. P. 13 Our order of dismissal stated that plaintiff's complaint as filed violates Rule 8(a), Fed. 14 R. Civ. P. Plaintiff's proposed response to the motion to dismiss does not alter this 15 assessment. Accordingly, it would be futile to permit plaintiff to file her response. We think 16 the better course of action is to provide plaintiff with the opportunity to file an amended 17 complaint in compliance with Rule 8(a). 18 IT IS THEREFORE ORDERED GRANTING IN PART AND DENYING IN 19 PART plaintiff's motion to vacate judgment and permit filing of plaintiff's response to the 20 motion to dismiss (doc. 8). 21 22 IT IS ORDERED DENYING plaintiff's motion to permit filing of her response to the motion to dismiss. 23 IT IS ORDERED GRANTING plaintiff's motion to vacate judgment (doc. 8). The 24 Clerk's judgment (doc. 7) is VACATED. Our November 17, 2011 order dismissing this 25 action (doc. 6) is AMENDED to reflect that the action is dismissed without prejudice. 26 27 Plaintiff shall have up to and including thirty (30) days from the date this order is 28 entered to file an amended complaint that complies with Rule 8(a), Fed. R. Civ. P. If she -3- 1 2 fails to timely file an amended complaint, the Clerk shall enter judgment of dismissal. DATED this 17th day of January, 2012. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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