Crespo et al v. Coldwell Banker Mortgage et al

Filing 38

ORDER denying 26 Motion to Amend Judgment and/or Reconsideration ; denying as moot 27 Motion to Disqualify Attorney; denying as moot 27 Motion for Hearing. Signed by Judge Richard W. Story on 09/11/13. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION

CAREY CRESPO and
BEVERLY CRESPO,
Plaintiffs,
v.
COLDWELL BANKER
MORTGAGE, et. al,
Defendants.

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CIVIL ACTION NO.
2:12-CV-00211-RWS

ORDER
This case comes before the Court on Plaintiffs’ Motion to Amend
Judgment and/or Motion for Reconsideration [26] and Motion to Disqualify
Attorney/ Motion for Hearing [27]. After reviewing the record, the Court enters
the following Order.
Background
This case arises out of the foreclosure sale of Plaintiffs Beverly Crespo
and Carey Crespo’s (collectively the “Crespos”) property, situated on Land Lot
108 in the 8th Land District, Hall County, Georgia, and located at 6115 Old
Federal Road, Flowery Branch, Georgia 30542.

AO 72A
(Rev.8/82)

On February 28, 2013, the Court granted Defendants’ Motion to Dismiss
finding that Plaintiffs failed to state a claim for (1) fraud, (2) lack of standing to
foreclose, (3) release of defective lien, (4) injunctive relief, or (5) declaratory
relief. (Order, Dkt. No. [24].) The Court properly construed the motion as
unopposed since Plaintiffs failed to file a timely response to the Defendants’
Motion to Dismiss.1
Plaintiffs now move for reconsideration of the Court’s Order asserting
improper legal standards and conflict of interest. For the reasons stated below,
Plaintiffs’ Motion for Reconsideration [26] is DENIED.
Discussion
I.

Legal Standard
Under the Local Rules of this Court, “[m]otions for reconsideration shall

not be filed as a matter of routine practice[,]” but rather, only when “absolutely
necessary.” LR 7.2(E), NDGa. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
1

Despite Plaintiffs’ contention, their Motion to File an Amended Verified
Complaint [13], filed over three months after Defendants’ Motion to Dismiss, is not a
timely response to Defendants’ Motion to Dismiss.
2

AO 72A
(Rev.8/82)

Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). A motion for
reconsideration may not be used “to present the court with arguments already
heard and dismissed or to repackage familiar arguments to test whether the
court will change its mind.” Id. at 1259. Nor may it be used “to offer new legal
theories or evidence that could have been presented in conjunction with the
previously filed motion or response, unless a reason is given for failing to raise
the issue at an earlier stage in the litigation.” Adler v. Wallace Computer
Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
II.

Analysis
In its Motion for Reconsideration, Plaintiffs challenge the legal standards

and procedures applied by the Court. Plaintiffs do not present any new
evidence or law to warrant reconsideration of the Court’s decision. Further, in
support of the motion, Plaintiffs rely on case law that already existed at the time
of motion briefing, Hemispherx Biopharma, Inc. v. Mid-South Capital, Inc.,
3

AO 72A
(Rev.8/82)

690 F.3d 1216 (11th Cir. 2012) (“Hemispherx”). Motions to amend and
motions for reconsideration should not be used to make arguments that should
have been made before judgment was entered. Lussier v. Dugger, 904 F.2d
661, 667 (11th Cir. 1990); Bryan v. Murphy, 246 F.Supp.2d 1256, 1258-59
(N.D. Ga. 2003) (“[M]otions for reconsideration are not to be filed as a matter
of course, but only when ‘absolutely necessary’”). As such, Plaintiffs fail to
meet the standard for reconsideration of this Court’s order.
Conclusion
For the reasons stated above, Plaintiffs’ Motion to Amend Judgment
and/or Motion for Reconsideration [26] is DENIED and Motion to Disqualify
Attorney/ Motion for Hearing [27] is DENIED as moot.
SO ORDERED, this 11th

day of September, 2013.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

4

AO 72A
(Rev.8/82)