Bohannon v. PHH Mortgage Corporation et al
Filing
52
ORDER denying Plaintiff's 43 Motion to Modify/Amend Judgment pursuant to Rules 60(b)(1) and 60(b)(6), and Plaintiff's 51 Motion to Supplement Plaintiff's Motion is DENIED as moot. Signed by Judge Richard W. Story on 3/12/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SARA B. BOHANNON,
Plaintiff,
v.
PHH MORTGAGE
CORPORATION and MCCALLA
RAYMER, LLC,
Defendants.
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CIVIL ACTION NO.
1:12-CV-02477-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion to Modify/Amend
Judgment [43] and Motion to Supplement Plaintiff’s Motion [51]. After
reviewing the record, the Court enters the following Order.
Background
In 2010, Plaintiff Sara Bohannon initiated this action by filing a wrongful
foreclosure claim against Defendants in the Superior Court of Henry County,
Georgia. (Dkt. [34] at 1). On June 29, 2012, Plaintiff filed an amended
complaint that added claims under the Federal Real Estate Settlement
Procedures Act (“RESPA”) and the Fair Debt Collection Practices Act
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(“FDCPA”). (Id.) Defendants then removed the case to this Court. (Dkt. [43]
at 1). On July 23, 2012, Defendants filed a Motion for Judgment on the
Pleadings [13]. On March 26, 2013, the Court granted in part and denied in part
Defendants’ motion. Specifically, the Court denied Defendants’ motion as to
Plaintiff’s claim under Section 1692f(6) of the FDCPA; granted without
prejudice the motion as to Plaintiff’s claim under Section 1692e of the FDCPA,
with leave to amend; and granted the motion for all remaining claims. On May
14, 2013, U.S. Magistrate Judge Gerrilyn G. Brill ordered the parties to file a
Certificate of Interested Persons and Joint Preliminary Report and Discovery
Plan within fourteen days. The order stated that “[f]ailure to file the documents
within this time period may result in a recommendation that sanctions be
imposed, including dismissal of the case or entry of a default judgment.” (Dkt.
[25] at 3).
Defendants timely submitted their Certificate of Interested Persons on
May 28, 2013, as well as Defendants’ Preliminary Report and Discovery Plan.
(Dkt. [43] at 2). Defendants also reported that they had repeatedly attempted to
contact Plaintiff’s counsel, Robert T. Thompson, Jr. (“Thompson”), to schedule
the required Rule 26(f) conference and prepare a Joint Preliminary Report and
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Discovery Plan, which the parties were ordered to submit by May 28, 2013.
(Id.) However, Plaintiff’s counsel failed to respond to any of these
communications. (Id.)
Judge Brill then ordered the parties to appear on June 26, 2013 for a
status conference to discuss the delays and communication problems. (Id.) At
the conference, Judge Brill pointed out that Plaintiff’s counsel had failed to
comply with at least five disclosure requirements under the federal and local
rules, including failing to participate in the Rule 26(f) conference and failing to
file the required initial disclosures. (Dkt. [34] at 4-5). Defendants also pointed
out that Plaintiff failed to file an amended complaint supporting her claim under
Section 1692e of the FDCPA, despite having been granted leave to do so. (Id.
at 5). For all of these violations, Defendants moved to dismiss the remainder of
Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 41(b). (Id.) In
response, Plaintiff’s counsel could not explain why he had failed to meet these
requirements or file the amended complaint except that he had been busy. (Dkt.
[43] at 3). Judge Brill gave Plaintiff’s counsel another opportunity to explain
his violations of court orders, but he again “provided no explanation except that
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he was busy and the pace of this case (which had started in state court) had been
glacial.” (Dkt. [34] at 5).
Even after this hearing, on June 27, 2013, Plaintiff’s counsel sent former
co-plaintiff, Peter Mancuso, an e-mail stating, “We are still working on the rests
[sic] of the status conference,” and that “[the parties] had generally settled at
about $14K and them [sic] they dropped it to $4K to maybe $5K or $6K . . . I
got the feeling that it was more of a tease.” (Dkt. [43-1] at 4, 9). This was not
true.
On June 28, 2013, Judge Brill recommended that the Court grant
Defendants’ motion to dismiss with prejudice under Rule 41(b) after concluding
“that dismissal was the appropriate sanction and that lesser sanctions would not
suffice in light of Plaintiff’s repeated failure to follow the Court’s orders and
rules.” (Dkt. [41] at 2). Plaintiff filed Objections to the Report and
Recommendation [36], asserting for the first time that counsel did not willfully
fail to comply with the Court’s orders, but that his delay was caused by an
office move.
On August 7, 2013, the Court found that an office move surely would
have been brought up at the status conference on June 26, and that “the move
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would not explain all of the failures of Plaintiff to comply with orders and rules
of this Court.” (See Dkt. [41] at 3). Accepting Judge Brill’s recommendation,
the Court dismissed the case with prejudice.
Apparently, Thompson did not notify Plaintiff that her case was
dismissed. Rather, Plaintiff learned of the dismissal in early October 2012 in a
letter from Defendant McCalla Rayer, LLC, informing Plaintiff that the
foreclosure would recommence. (Dkt. [43-1] at 4). About ten months later, on
August 6, 2014, Plaintiff filed this motion pro se under Federal Rules 60(b)(1)
and 60(b)(6). (Dkt. [43] at 9).
Discussion
I.
Rule 60(b)(1) Relief
Plaintiff argues that she was effectively abandoned by Thompson and
was misled about developments in her case. (Id. at 8). Because of these
“egregious and documented circumstances,” Plaintiff argues that her claims
should be dismissed without prejudice so she has the opportunity to pursue
further legal remedies. (Id. at 9). Generally, “clients must be held accountable
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for the acts or omissions of their attorneys.”1 Pioneer Inv. Servs. Co. v.
Brunswick Assocs., 507 U.S. 380, 396 (1993). There is “no merit to the
contention that dismissal of [a client’s] claim because of his counsel’s
unexcused conduct imposes an unjust penalty on the client.” Id. (quoting Link
v. Wabash R. Co., 370 U.S. 626, 633–34 (1962)) (emphasis added). However,
Rule 60(b)(1) permits courts to relieve a party from a final judgment for
“mistake, inadvertence, surprise, or excusable neglect” by counsel. FED. R. CIV.
P. 60(b)(1) (emphasis added).
The Supreme Court has stated that “excusable neglect is understood to
encompass situations in which the failure to comply with a filing deadline is
attributable to negligence.” Pioneer, 507 U.S. at 394. “[W]hether a party’s
neglect of a deadline may be excused is an equitable decision turning on ‘all
relevant circumstances surrounding the party’s omission.’ ” Cheney v. Anchor
Glass Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (quoting Pioneer, 507
U.S. at 395).
1
The Court takes judicial notice that Plaintiff’s former counsel, Robert T.
Thompson, Jr., has subsequently been disbarred. In re Thompson, No. S15Y0003,
2015 WL 416492 (Ga. Feb. 2, 2015). Therefore, Plaintiff’s Motion to Supplement to
Plaintiff’s Motion [51] is DENIED as moot.
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To determine whether the neglect is excusable and justifies relief from a
final judgment, courts must consider the following four factors: (1) the danger
of prejudice to the opposing party; (2) the length of the delay and its potential
impact on judicial proceedings; (3) the reason for the delay, including whether
it was within the control of the movant; and (4) whether the movant acted in
good faith. Id.; Oheki v. Sec. Bank of Bibb Cnty., 199 F.R.D. 388, 392 (M.D.
Ga. 2001). In addition, a motion for relief under Rule 60(b)(1) must be filed
within “a reasonable time,” but “no more than a year after entry of the judgment
or order or the date of the proceeding.” FED. R. CIV. P. 60(c)(1).
A.
The March 26, 2013 Dismissal
Plaintiff cannot receive Rule 60(b)(1) relief from the March 26, 2013
order, which dismissed each of Plaintiff’s claims except those filed under
Sections 1692e (dismissed but without prejudice) and 1692f(6) of the FDCPA.
First, the March 26, 2013 dismissal was not based on attorney neglect. Rather,
the Court dismissed those claims on the merits. (See generally Dkt. [23]).
Second, because Plaintiff filed her motion for relief on August 6, 2014, Plaintiff
is time barred from Rule 60(b)(1) relief from the March 26, 2013 order because
she filed the motion more than one year after the Court’s order. FED. R. CIV. P.
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60(c)(1). Therefore, the Court turns to Plaintiff’s arguments regarding the
August 7, 2013 order dismissing this case with prejudice.
B.
The August 7, 2013 Dismissal
Viewing all relevant circumstances and applying the four Pioneer factors,
the Court finds that the conduct of Plaintiff’s counsel does not constitute
excusable neglect. First, there is a danger of prejudice to Defendants. The
Court has already observed significant delay when it dismissed the case for
Thompson’s failure to comply with Court orders and deadlines. And during
these delays, Defendants’ counsel repeatedly reached out to Thompson but
received no response. Granting relief would negate Defendants’ efforts while
rewarding the willful misconduct of Plaintiff’s counsel. “[I]nexcusable
inattention to the case . . . does not justify putting the adversary to the continued
expense and uncertainty of litigation.” United States v. Golden Elevator, Inc.,
27 F.3d 301, 303 (7th Cir. 1994).
Second, the length of the delay weighs against granting Rule 60(b)(1)
relief. Before the case was dismissed, for example, Thompson filed the Joint
Preliminary Report and Discovery Plan nearly one month late and only after
being ordered to attend a status conference to address his conduct. And after
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the case was dismissed on August 7, 2013, Plaintiff herself did not file for relief
until August 6, 2014. This was the last day possible to request Rule 60(b)(1)
relief. Although Plaintiff was not aware of the dismissal until early October
2013, that still leaves a ten-month gap before seeking relief. The aggregate
delay is substantial and weighs against granting relief. See, e.g., Jones v. Dyer
Nursing & Rehab. Ctr., No. 2:04-CV-508-PRC, 2006 WL 1722361, at *3 (N.D.
Ind. June 21, 2006) (finding a 24-day delay between discovering dismissal and
filing for Rule 60(b)(1) relief weighed against granting relief).
Third, the reason for Thompson’s failure to adhere to deadlines is
inexcusable. The delays that led to dismissal were not caused by clerical errors
or temporary oversight, but by repeated failure to comply with court orders.
Thompson’s explanations that he had “been busy” and neglected the case
because of its “glacial” pace merely illustrate his willful misconduct. And
though he later pointed to an office move as the culprit, surely that excuse
would have been mentioned at the status conference if valid. In addition to the
delays of counsel, Plaintiff offers no explanation for her own ten-month delay
in seeking relief.
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The fourth factor, whether Plaintiff acted in good faith, also fails to
justify Rule 60(b)(1) relief. While Plaintiff has shown good faith in her pro se
capacity, the Court cannot say the same about Thompson. The Court also notes
that it dismissed Plaintiff’s case with prejudice under Rule 41(b) primarily
because Thompson was not acting in good faith. Dismissing a case under Rule
41(b) with prejudice requires that “(1) a party engages in a clear pattern of delay
or willful contempt (contumacious conduct); and (2) the district court
specifically finds that lesser sanctions would not suffice.” Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1338 (11th Cir. 2005).
Here, Thompson engaged in a clear pattern of delay by repeatedly failing
to comply with court orders, and this Court specifically found “that lesser
sanctions would not suffice.” (Id. at 2). Overturning that finding on a Rule
60(b) motion would require evidence that the Court’s analysis was incomplete
or incorrect. Campbell v. Assurance Co. of Am., No. 3:11-CV-83, 2012 WL
1583306, at *2 (M.D. Ga. May 1, 2012) (granting plaintiff’s Rule 60(b)(1)
motion to amend a Rule 41(b) judgment from dismissal with prejudice to
dismissal without prejudice because of evidence that counsel’s contempt was
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not actually “willful”). But Plaintiff has presented no evidence that Thompson’s
conduct was not willful.
The Court is sympathetic to Plaintiff’s arguments that she should not be
punished for her attorney’s conduct. However, courts are empowered to
sanction willful misconduct by an attorney, even if it burdens the client, and
courts can only grant Rule 60(b)(1) relief for an attorney’s excusable neglect.
See Pioneer, 507 U.S. at 396. Overall, because of the prejudice to Defendants,
the substantial delay to the litigation, and the lack of reasonable explanations
for the delay, Thompson’s actions go far beyond excusable neglect. In fact, the
Court repeats its finding that his actions amounted to willful delay and
misconduct. Therefore, Plaintiff is not entitled to relief under Rule 60(b)(1).
II.
Rule 60(b)(6) Relief
Plaintiff also seeks relief from judgment under Rule 60(b)(6), which
permits courts to relieve a party from final judgment for “any other reason that
justifies relief” aside from those already listed in Rule 60(b)(1)–(5). FED. R.
CIV. P. 60(b)(6). “Relief under Rule 60(b)(6) is only available ‘upon a showing
of exceptional circumstances.’ ” S.E.C. v. Simmons, 241 F. App’x 660, 662–63
(11th Cir. 2007) (quoting Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115
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(11th Cir. 1993)). But Plaintiff’s “attempt to make attorney negligence an
extraordinary circumstance warranting relief under Rule 60(b)(6) is foreclosed
by precedent.” Id. at 663. The Eleventh Circuit “consistently has held that
60(b)(1) and (b)(6) are mutually exclusive. Therefore, a court cannot grant
relief under (b)(6) for any reason which the court could consider under (b)(1).”
Solaroll Shade & Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130,
1134 (11th Cir. 1986). Because Plaintiff’s argument relies solely on a claim of
attorney error and does not point to any other exceptional circumstances,
Plaintiff is not entitled to relief under Rule 60(b)(6).
Conclusion
In accordance with the foregoing, Plaintiff’s Motion to Modify/Amend
Judgment [43] pursuant to Rules 60(b)(1) and 60(b)(6) is DENIED, and
Plaintiff’s Motion to Supplement Plaintiff’s Motion [51] is DENIED as moot.
SO ORDERED, this 12th
day of March, 2015.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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