Dickson v. Homeowner Mortgage of America, Inc. et al
Filing
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ORDER denying Plaintiff's 18 Motion for Relief from All Judgment. Signed by Judge Richard W. Story on 6/5/12. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SYRETTA DICKSON,
Plaintiff,
v.
HOMEOWNER MORTGAGE OF
AMERICA, INC., et al.,
Defendants.
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CIVIL ACTION NO.
1:10-CV-3615-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion for Relief from
All Judgments (“Pl.’s Mot.”) [18]. After reviewing the record, the Court hereby
DENIES the motion for the following reasons:
Plaintiff, at all times represented by counsel, filed the Complaint in this
case on November 5, 2010. (Dkt. [1].) Defendant CitiMortgage filed an
Answer (Dkt. [4]) and subsequently a Motion to Dismiss (Dkt. [12]), to which
Plaintiff failed to file a response. The Court granted Defendant CitiMortgage’s
Motion to Dismiss and ordered Plaintiff to show good cause as to why
Defendant Homeowner Mortgage of America, Inc. should not be dismissed for
lack of service, pursuant to Federal Rule of Civil Procedure (“Rule”) 4(m).
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(Order, Dkt. [14].) Plaintiff failed to file any response, and the Court
accordingly dismissed Defendant Homeowner Mortgage of America, Inc.
pursuant to Rule 4(m). (Order, Dkt. [16].) The case was closed on May 31,
2011, and the Clerk’s Judgment was entered against Plaintiff on June 1, 2011
(Dkt. [17]).
Plaintiff now seeks relief from the Court’s Orders and the Clerk’s
Judgment pursuant to Rule 60(b), which governs the grounds on which the
Court may relieve a party from a final judgment or order. Rule 60(b) provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
(1)
mistake, inadvertence, surprise, or excusable neglect;
(2)
newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b);
(3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4)
the judgment is void;
(5)
the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or
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(6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Plaintiff contends that relief is warranted in this case on
each of the grounds set out in Rule 60(b), in particular, “excusable neglect” and
“newly discovered evidence.” (See generally Pl.’s Mot., Dkt. [18].)
Plaintiff alleges that relief is warranted on grounds of excusable neglect
based on the allegation that Plaintiff’s counsel did not receive notice of any of
the submissions filed by Defendants and therefore was “unfairly surprised.”
(Id. at 5-6 of 22.) Plaintiff appears to allege that Plaintiff’s counsel did not
receive notice of any Court filings because the Court and/or the Clerk’s Office
was “going through a change in their email system which may have been a part
of the lack of notice.” (Id. at 10 of 22.) Plaintiff alleges that Plaintiff’s
counsel’s email address is “jpwatkins@yahoo.com” but that the email
registered with the Court was “james_watkins21@yahoo.com.” (Id. at 15 of 22
(“My email attached to this case is james_watkins21@yahoo.com and as not
changed in the past year and is registered with the court as my official email.”).)
Thus, Plaintiff’s argument appears to be that her counsel received no notice of
any filings in the case due to the fact that the email address on record for
Plaintiff’s counsel was incorrect. This, Plaintiff contends, constitutes excusable
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neglect for failing to respond to the Motion to Dismiss and allowing entry of a
final judgment in favor of Defendants.
Little discussion is required to explain the Court’s conclusion that
Plaintiff has failed to show excusable neglect warranting relief from the Court’s
orders and Clerk’s Judgment. First, Plaintiff’s counsel bears the burden of
ensuring that the Court has the correct contact information for counsel at all
times during the litigation. If Plaintiff’s counsel’s email address changed
during this proceeding, it was incumbent upon Plaintiff’s counsel to notify the
Court of that change. Any lack of notice that counsel may have experienced
due to his own failure to update his contact information with the Court is solely
the fault of counsel and does not constitute excusable neglect for Plaintiff’s
failure to participate in this litigation.
Furthermore, wholly apart from the argument regarding Plaintiff’s
counsel’s email address, Plaintiff cannot show excusable neglect for failing to
check the Court’s docket to see if any motions or other submissions had been
filed in response to her Complaint. It appears that Plaintiff took no action
whatsoever in the eleven months that passed between the filing of her
Complaint and her instant motion for relief. This complete failure to participate
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in Plaintiff’s own case does not constitute “excusable neglect.”
Plaintiff also argues that relief from the Court’s orders and the Clerk’s
entry of Final Judgment is warranted on grounds of “newly discovered
evidence.” (Id. at 6-8 of 22.) Plaintiff argues that after final judgment was
entered, Plaintiff discovered evidence that “the Defendant has committed Robo
signing,” which evidence Plaintiff claims to have attached to her motion as
“Exhibit 1.” (Id. at 7 of 22.) Wholly apart from the question of whether
allegations of “robo signing” can give rise to a claim for relief,1 there is no
“Exhibit 1” to Plaintiff’s Motion, and Plaintiff otherwise has failed to show the
Court any newly-discovered evidence that plausibly could warrant relief from
the Court’s prior orders. This argument thus plainly fails.
In sum, the Court finds that Plaintiff utterly has failed to show that relief
is appropriate on grounds of “excusable neglect” or “newly discovered
evidence,” or on any other ground for relief contemplated by Rule 60(b).
Accordingly, Plaintiff’s Motion for Relief from All Judgments [18] is hereby
DENIED.
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See, e.g., Reynolds v. JPMorgan Chase Bank, N.A., No. 5:11-CV-311 (MTT),
2011 WL 5835925, at *3 (M.D. Ga. Nov. 11, 2011) (dismissing claims for “robo
signing” “because there is no such cause of action in Georgia.”).
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SO ORDERED, this 5th day of June, 2012.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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