Esther Enunwaonye v. Aurora Loan Services LLC et al
Filing
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ORDER DENYING Plaintiff's Motion for Reconsideration 64 by Judge Otis D Wright, II. Because Plaintiff has failed to establish a material change of facts or law, a manifest showing that the Court failed to consider facts to support his position , or any other "highly unusual circumstances" warranting reconsideration of the Court's 2/14/2012 Order, and because Plaintiff has failed to demonstrate excusable neglect under FRCP 60(b)(1), the Court DENIES Plaintiff's Motion for Reconsideration in its entirety. (jp)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ESTHER ENUNWAONYE,
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Plaintiff,
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Case No. CV 11-00879-ODW (MANx)
Order DENYING Plaintiff’s Motion for
Reconsideration [64]
v.
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AURORA LOAN SERVICES LLC;
AURORA BANK FSB; QUALITY LOAN
SERVICE CORPORATION; SBMC
MORTGAGE, GENERAL
PARTNERSHIP; and DOES I-XX,
Inclusive,
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Defendants.
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Pending before the Court is Plaintiff Esther Enunwaonye’s (“Plaintiff”) Motion
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for Reconsideration.
(Dkt. No. 64.)
On February 14, 2012, the Court granted
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Defendants Aurora Loan Services LLC and Aurora Bank FSB’s (collectively
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“Defendants”) Motion to Dismiss Plaintiff’s Third Amended Complaint. (Dkt. No.
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69.) After careful consideration of the papers filed in support of and in opposition to
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the instant Motion, the Court deems the matter appropriate for decision without oral
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argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons discussed below,
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Plaintiff’s Motion is DENIED.
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I.
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BACKGROUND
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This Court dismissed Plaintiff’s original and First Amended Complaints on the
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merits following Plaintiff’s failure to file a timely opposition to Defendants’ motions
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to dismiss pursuant to Local Rule 7-9. (Dkt. Nos. 14, 42, 56.) While Plaintiff
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successfully filed an opposition to Defendants’ motion to dismiss her Second
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Amended Complaint, the Court again dismissed Plaintiff’s amended pleadings for
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failure to state a claim. (Dkt. Nos. 56.)
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Plaintiff filed her Third Amended Complaint (“TAC”) on December 28, 2011.
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(Dkt. No. 58.) Once again, Defendants moved to dismiss Plaintiff’s Complaint, and
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once again Plaintiff failed to file a timely opposition to Defendants’ motion.
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Nevertheless, the Court again considered the merits of Defendants’ motion and found
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that Plaintiff’s TAC similarly failed to survive scrutiny under Rule 12(b)(6). Upon
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determination that further attempts to amend her pleadings would be futile, the Court
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dismissed Plaintiff’s TAC with prejudice. (Dkt. No. 63 (citing AE ex rel. Hernandez
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v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“A district court abuses its
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discretion by denying leave to amend unless amendment would be futile or the
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plaintiff has failed to cure the complaint’s deficiencies despite repeated
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opportunities.”))).
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On February 24, 2012, Plaintiff filed the instant Motion for Reconsideration
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(Dkt. No. 64), to which Defendants filed an Opposition on March 12, 2012 (Dkt. No.
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66). Plaintiff seeks relief under Federal Rules of Civil Procedure 59 and 60, arguing,
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among other things, that she has a meritorious defense to Defendant’s Motion to
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Dismiss, that she can plead additional facts supporting her claims, and the late filing
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of her opposition was due to the mistake, inadvertence, or excusable neglect of her
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counsel. (Mot at 2.)
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II.
LEGAL STANDARD
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“Although Rule 59(e) permits a district court to reconsider and amend a
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previous order, the rule offers an extraordinary remedy, to be used sparingly in the
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interests of finality and conservation of judicial resources.” Kona Enters., Inc. v.
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Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks
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omitted).
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unusual circumstances, unless the district court is presented with newly discovered
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evidence, committed clear error, or if there is an intervening change in the controlling
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law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880
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(9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th
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Cir. 1999)). Furthermore, a motion “may not be used to raise arguments or present
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evidence for the first time when they could reasonably have been raised earlier in the
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litigation.”
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“[A] motion for reconsideration should not be granted, absent highly
omitted).
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Marlyn Nutraceuticals, 571 F.3d at 880 (internal quotation marks
Pursuant to Local Rule 7-18, a motion for reconsideration may be made only on
the grounds of
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(a) a material difference in fact or law from that
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presented to the Court before such decision that in the
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exercise of reasonable diligence could not have been known
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to the party moving for reconsideration at the time of such
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decision, or (b) the emergence of new material facts or a
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change of law occurring after the time of such decision, or
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(c) a manifest showing of a failure to consider material facts
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presented to the Court before such decision. No motion for
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reconsideration shall in any manner repeat any oral or
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written argument made in support of or in opposition to the
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original motion.
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In analyzing Federal Rule of Civil Procedure 60(b)(1), “[t]he determination of
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whether neglect is excusable ‘is at bottom an equitable one, taking account of all
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relevant circumstances surrounding the party’s omission.’” Lemoge v. United States,
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587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick
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Assoc. L.P., 507 U.S. 380, 395 (1993)). “To determine when neglect is excusable,
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[the district court must] conduct the equitable analysis specified in Pioneer by
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examining ‘at least four factors: (1) the danger of prejudice to the opposing party; (2)
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the length of the delay and its potential impact on the proceedings; (3) the reason for
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the delay [or other error, including whether it was within the reasonable control of the
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movant]; and (4) whether the movant acted in good faith.’” Id. (quoting Bateman v.
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U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000)). The above factors are not
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exclusive, but “provide a framework with which to determine whether missing a filing
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deadline constitutes ‘excusable’ neglect.” Briones v. Riviera Hotel & Casino, 116
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F.3d 379, 381 (9th Cir. 1997).
III.
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DISCUSSION
Plaintiff’s Motion for Reconsideration seeks relief under both Federal Rule of
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Civil Procedure 59 and 60(b)(1). The Court will discuss the applicability of Plaintiff’s
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requested relief under each rule in turn.
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A.
RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 59
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Plaintiff requests that the Court reconsider its February 14, 2012 Order under
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Federal Rule of Civil Procedure 59 and amend the Court’s Order to permit Plaintiff
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leave to amend her fraud and wrongful foreclosure claims. (Mot at 5–6.) Plaintiff
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also seeks leave to amend to allege her willingness to tender her loan proceeds. (Mot.
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at 5.) However, Plaintiff neither offers new facts or law of “material difference” that
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were not previously ascertainable through the “exercise of reasonable diligence” nor
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demonstrates how the Court “fail[ed] to consider material facts” in making its decision
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to dismiss Plaintiff’s TAC for the same infirmities pervading this litigation. See C.D.
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Cal. L.R. 7-18. Instead, Plaintiff merely rehashes arguments the Court has already
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considered, which is flatly insufficient to meet the rigorous demands for
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reconsideration under Rule 59. Accordingly, Plaintiff’s Motion for Reconsideration
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under Rule 59 is DENIED.
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B.
RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 60
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Plaintiff also seeks relief from the Court’s February 14, 2012 Order under
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Federal Rule Civil Procedure 60(b)(1), citing her counsel’s excusable neglect for her
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failure to timely file an opposition. (Mot. at 3.) Consideration of the Pioneer factors
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reveals that Plaintiff’s neglect was not excusable. The Court finds that the first factor,
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the danger of prejudice to the opposing party, favors Defendant. On one hand, if relief
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is granted, Defendant will be forced to litigate claims that potentially have no merit, as
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Plaintiff’s repeated failure to adequately state a claim has revealed. (See Dkt. Nos. 14,
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42, 56, 63.) On the other hand, Courts should liberally construe Rule 60 to allow for
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the just determination of cases on the merits. Rodgers v. Watt, 722 F.2d 456, 459-60
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(9th Cir. 1983). In balancing the two, the Court finds that forcing Defendant to
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continue this seemingly futile motion practice would be more prejudicial than not;
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thus, this factor weighs in favor of Defendant.
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The second Pioneer factor addresses the length of delay and its potential impact
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on the proceeding. While Plaintiff filed her Motion for Reconsideration ten days after
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the Court dismissed her case for the fourth time, thus resulting in minimal delay, the
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Court deems it appropriate to also consider the previous delays caused by Plaintiff’s
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neglect in failing to timely file an opposition. Plaintiff has now twice failed to file an
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opposition to Defendants’ motions to dismiss at all and filed one opposition late,
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which has significantly delayed the progress of this case. (See Dkt. Nos. 14, 42, 63.)
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Because excusable neglect is an equitable doctrine, the Court must “take into account
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all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at
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394. As a result, the Court finds that this delay, coupled with the previous delays
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caused by Plaintiff’s sheer neglect, leave this factor heavily in favor of Defendant.
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As to the third factor, the reason for the delay, Plaintiff’s incorrect calendaring
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of the motion dates falls within the boundaries of excusable neglect as espoused by the
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Pioneer Court and Ninth Circuit precedent. Although not particularly compelling,
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Plaintiff’s clerical error is simply one “in which the failure to comply with a filing
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deadline is attributable to negligence.” Id. Furthermore, the Ninth Circuit has been
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generous in its application of Pioneer and has extended relief under 60(b)(1) in
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situations where attorney neglect was no more than carelessness. See Ahanchian v.
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Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (finding a calendaring
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mistake as excusable neglect); see also In re Hawaiian Airlines, Inc., Cv. No. 08-
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00405 DAE-BMK, 2011 WL 1483923, at *5 (D. Haw. Apr. 18, 2011) (collecting
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cases in which “the Ninth Circuit has found excusable neglect when experienced law
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firms and attorneys have missed filing deadlines”). However, Plaintiff’s counsel
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should have been aware when taking this case that it had been dismissed on two
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previous occasions for failure to file an opposition.
Given these circumstances,
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Plaintiff’s counsel should have taken an abundance of caution to ensure that his
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opposition was timely filed, but failed to manage this task. Thus, the Court finds that
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this factor only slightly favors Plaintiff.
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Finally, in addressing the fourth factor, whether the movant acted in good faith,
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the Court finds no indication that Plaintiff has engaged in any conduct that could be
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construed as bad faith. See Bateman, 231 F.3d at 1225 (noting that negligence and
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carelessness do not amount to bad faith). Thus, this factor weighs in favor of Plaintiff.
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In conclusion, the Court finds that the Pioneer factors mitigate towards denying
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relief from dismissal of Plaintiff’s case. The Court therefore DENIES Plaintiff’s
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Motion for Reconsideration under Federal Rule of Civil Procedure 60(b)(1).
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IV.
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CONCLUSION
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Because Plaintiff has failed to establish a material change of facts or law, a
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manifest showing that the Court failed to consider facts to support his position, or any
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other “highly unusual circumstances” warranting reconsideration of the Court’s
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February 14, 2012 Order, and because Plaintiff has failed to demonstrate excusable
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neglect under Federal Rule of Civil Procedure 60(b)(1), the Court DENIES Plaintiff’s
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Motion for Reconsideration in its entirety.
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IT IS SO ORDERED.
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March 21, 2012
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____________________________________
HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE
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