Sousa v. Quality Loan Servicing Corporation et al

Filing 39

ORDER denying Plaintiff's 31 Motion to Set Aside Judgment; 32 Motion to Appoint Counsel and 38 Motion to Produce Transcripts in forma pauperis. Signed by Judge Frederick J Martone on 6/27/12.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Quality Loan Servicing Corp.; Wells)
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Fargo Bank, N.A.,
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Defendants.
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David Sousa,

No. CV 12-00334-PHX-FJM
ORDER

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We have before us plaintiff's motion to set aside judgment (doc. 31), defendant Wells
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Fargo Bank, N.A.'s ("Wells Fargo") response (doc. 36), plaintiff's reply (doc. 37), plaintiff's
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motion to appoint pro bono counsel (doc. 32), and plaintiff's request for transcripts in forma
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pauperis (doc. 38). Plaintiff moves for relief from judgment under Rule 60, Fed. R. Civ. P.,
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claiming excusable neglect and fraud.
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Plaintiff filed a response to Wells Fargo's motion to dismiss and an amended
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complaint on the same day. When Well Fargo moved to strike his amended complaint,
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plaintiff failed to respond. But the motion to dismiss was fully briefed when we ruled on it.
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Plaintiff's failure to meet a deadline was not "a major cause of this action being dismissed,"
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as he infers in his reply. (Doc. 37). His failure to file a response to the motion to strike did
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not influence our ruling on the motion to dismiss.
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We granted defendant's motion to strike for several reasons other than plaintiff's
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failure to respond. First, plaintiff had many chances to amend his complaint. The complaint

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which was stricken was plaintiff's sixth amended complaint since beginning this litigation.

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Second, plaintiff failed to comply with Rule 15, Fed. R. Civ. P., which provides that a party

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without the right to amend its pleading as a matter of course may amend "only with the

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opposing party's written consent or the court's leave." Plaintiff did not get defendants' written

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consent or seek leave of the court to amend his complaint. Third, he failed to comply with

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LRCiv 15.1 because he did not attach to a stipulation or motion for leave to amend a copy

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of his proposed amended pleading which indicated in what respect it differed from the

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pleading it amended. Fourth, we determined that "any further attempts at amendment would

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be futile." (Doc. 27 at 4). After a hearing on March 7, 2012, we denied plaintiff's motion

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for preliminary injunction. On March 22, 2012, we denied plaintiff's application for

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temporary restraining order. As we noted when denying his motion for extension of time to

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respond, "[p]laintiff had opportunities to present his arguments many times." (Doc. 30).

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Rule 60(b)(1) permits the court to relieve a party from a final judgment or order for

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excusable neglect. Excusable neglect takes into account factors such as prejudice, "the

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length of the delay and its potential impact on judicial proceedings, the reason for the delay,

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including whether it was within the reasonable control of the movant, and whether the

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movant acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507

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U.S. 380, 395, 113 S. Ct. 1489, 1498 (1993).

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Plaintiff was not prejudiced by our decision not to allow him to file a reply after we

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issued our order. The reason for his delay – reliance on a poster on an online message board

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who claimed to have legal knowledge – is not a basis for setting aside our judgment.

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Plaintiff had no right to rely on someone who is not a lawyer. It is inexcusable neglect to do

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so, not justifiable reliance. The delay was entirely within the reasonable control of movant.

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"Neither ignorance nor carelessness on the part of the litigant or his attorney provide grounds

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for relief under Rule 60(b)(1)." Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043

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(9th Cir. 1992) (quotation omitted). Plaintiff's lack of legal training does not change this

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standard. He has not shown excusable neglect to set aside our order granting defendant's

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motion to strike.

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Plaintiff also seeks relief based on fraud, pursuant to Rule 60(b)(3). To obtain relief

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under this rule, a losing party must show, by clear and convincing evidence, that defendant

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committed fraud which prevented plaintiff "from fully and fairly presenting his case."

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Atchison, Topeka & Santa Fe Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957). "Rule

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60(b)(3) 'is aimed at judgments which were unfairly obtained, not at those which are factually

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incorrect.'" De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880 (9th Cir. 2000).

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Plaintiff has not met this standard. His allegations of fraud relate to the actions underlying

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his claims for fraud, not to any misconduct during litigation. He does not allege facts tending

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to show that defendant prevented him from fully and fairly presenting his case or that

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defendant obtained a judgment unfairly.

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Plaintiff also seeks appointment of pro bono counsel. The court may appoint counsel

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for civil litigants only in "exceptional circumstances." Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986). A finding of exceptional circumstances requires evaluating both

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"the likelihood of success on the merits and the ability of the petitioner to articulate [his]

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claims pro se in light of the complexity of the legal issues involved." Richards v. Harper,

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864 F.2d 85, 87 (9th Cir. 1988). We have already dismissed this case on the merits. It is

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clear that plaintiff has no likelihood of success on the merits. Nor are the legal issues

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complex. This case does not present exceptional circumstances warranting the appointment

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of counsel.

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Plaintiff filed a notice of appeal the day after filing his motion to set aside judgment.

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Plaintiff requests transcripts for the appeal in forma pauperis. Under 28 U.S.C. § 753(f), fees

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for transcripts furnished to persons permitted to appeal in forma pauperis shall "be paid by

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the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous

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(but presents a substantial question)." We cannot certify that plaintiff's appeal is not

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frivolous. We are unable to determine on what grounds plaintiff seeks to overturn the

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judgment. Plaintiff did not explain what issues he will raise on appeal or how the transcript

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of his preliminary injunction hearing is relevant to our order dismissing his case. See

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McKinney v. Anderson, 924 F.2d 1500, 1511-12 (9th Cir. 1991), vacated on other grounds

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sub nom. Helling v. McKinney, 502 U.S. 903, 112 S. Ct. 291 (1991).

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IT IS ORDERED DENYING plaintiff's motion to set aside judgment (doc. 31),

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plaintiff's motion to appoint pro bono counsel (doc. 32), and plaintiff's request for transcripts

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in forma pauperis (doc. 38).

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DATED this 27th day of June, 2012.

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