Casino et al v. Bank of America et al
Filing
45
ORDER DENYING THE CASINOS' MOTION FOR RECONSIDERATION 39 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/15/11. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIANO C. CASINO, an
individual; ESTELITA B.
CASINO, an individual,
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
BANK OF AMERICA, a Business
Entity, form unknown; FIRST
)
MAGNUS FINANCIAL CORPORATION, )
a Business Entity, form
)
)
unknown; FIDELITY NATIONAL
TITLE CORPORATION, a Business )
)
Entity, form unknown;
)
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, a
)
Business Entity, form
)
unknown; and DOES 1-100
)
inclusive,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00728 SOM/BMK
ORDER DENYING THE CASINOS’
MOTION FOR RECONSIDERATION
ORDER DENYING THE CASINOS’ MOTION FOR RECONSIDERATION
I.
INTRODUCTION AND BACKGROUND.
On May 4, 2011, the court granted a Motion to Dismiss
filed by Defendants Bank of America, N.A. (“Bank of America”),
and Mortgage Electronic Registration Systems, Inc. (“MERS”).
No. 31.
ECF
The court set a date by which the Casinos could file an
amended Complaint.
The Casinos failed to amend their Complaint
by the date ordered by the court, and Bank of America and MERS
moved to dismiss this action pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
See ECF No. 34.
The Casinos
failed to respond to Defendants’ motion by their opposition
deadline of June 14, 2011.
On June 20, 2011, the court called
the office of the Casinos’ counsel to inquire as to whether the
motion was unopposed, and the court was informed by the Casinos’
counsel on June 22, 2011, that he was not sure what he intended
to do.
On June 30, 2011, eight days later and only two
business days before the hearing on the Rule 41(b) motion, the
Casinos filed a two-page motion for leave to file an opposition
memorandum, arguing that counsel’s “administrative error” had
prevented them from timely opposing the motion.
opposition was attached.
ECF No. 36.
No
In light of the lack of opposition to
the Motion to Dismiss, the earlier direction that any amended
Complaint had to be filed by May 18, 2011, and the Casinos’
failure to do anything at all about amending their Complaint,
even after the dismissal motion was filed, the court granted Bank
of America and MERS’ motion to dismiss as unopposed.
The Casinos now move for reconsideration.
ECF No. 37.
Because the Casinos do
not meet the requirements for reconsideration, their motion is
DENIED.
II.
ANALYSIS AND DISCUSSION.
The Casinos’ motion for relief is styled under Rule 60
of the Federal Rules of Civil Procedure as a motion for
reconsideration of the court’s order dismissing Bank of America
2
and MERS from this action.1
Rule 60(b) permits relief from “final” judgments,
orders or proceedings based on the following grounds:
(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
(6) any other reason that justifies relief.
Motions to reconsider are committed to the discretion
of the trial court.
Barber v. Haw., 42 F.3d 1185, 1198 (9th Cir.
1994); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en
banc).
On a motion for reconsideration, the court examines at
least four factors to determine when a party’s or counsel’s
neglect is excusable: “(1) the danger of prejudice to the
1
The Motion for Reconsideration also refers to Rule 59 of
the Federal Rules of Civil Procedure, as well as subsections
(b)(2) and (b)(6) of Rule 60. Mot. 10. However, other than
listing the rules, the Casinos have not presented arguments
specific to those rules.
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opposing party; (2) the length of the delay and its potential
impact on the proceeding; (3) the reason for the delay; and (4)
whether the movant acted in good faith.”
Lemoge v. United
States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Bateman v.
U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000)).
The Casinos argue that they merit reconsideration
because of “mistake, inadvertence, surprise, or excusable
neglect” by their attorney.
Mot. 11-16.
Their counsel claims
that he failed to oppose Bank of America and MERS’ motion to
dismiss because “things were in a state of flux; a new paralegal
had just been hired and was being trained,” and he was attending
court hearings on and off island during the week of June 20.
Mot. 9.
He states that he filed a motion for leave to amend the
complaint less than one week after the “administrative errors”
were discovered.
Mot. 15.
He states that he planned to file an
amended complaint and/or opposition memorandum by July 4, and
therefore the length of the delay would have been relatively
short.
Id.
Most significant to the court is the repetitive nature
of Casinos’ counsel’s actions.
The dismissal followed the
Casinos’ failure to meet not one but two deadlines.
First,
counsel missed the May 18, 2011, deadline to amend the Complaint.
This deadline was set by the court’s May 4, 2011, order.
After
Bank of America and MERS filed a motion to be dismissed from this
4
action, counsel then failed to oppose that motion by the deadline
of June 14, 2011.
Any “administrative error” that caused these missed
deadlines was corrected on June 22, 2011, when counsel returned a
call from the court regarding the motion and learned from court
personnel that his deadline to amend the Complaint and to timely
oppose Defendants’ motion to dismissed had both passed.
Nevertheless, counsel waited another eight days to file his
“Motion for Leave to File a Late Opposition.”
In other words,
even if a docketing error in counsel’s office prevented counsel
from realizing that both his deadline to amend the Complaint and
his deadline to oppose the subsequent motion to dismiss had
passed, counsel was on notice of these defects for over a week
before acting on them.
This is not the first time counsel has claimed
“administrative error” to this court to explain missed deadlines.
See Rey v. Countrywide Home Loans, Inc., Civ. No. 11-00142
JMS/KSC, Mem. Supp. Mot., July 19, 2011, ECF No. 27-1
(attributing counsel’s failure to timely amend complaint to
“administrative error”); Levy v. Wells Fargo Bank, N.A., Civ. No.
11-00159 SOM/KSC, Decl. Robin R. Horner, July 14, 2011, ECF No.
24-1 (same); Enriquez v. Aurora Loan Servs., LLC, Civ. No.
10–00281 SOM/KSC, Letter from Robin R. Horner to Court, Mar. 4,
2011, ECF No. 24 (stating that counsel failed to file opposition
5
due to administrative error).
The reasons given for the delay also weigh against
reconsideration.
According to the Casinos’ counsel, he missed
the deadline to oppose Bank of America and MERS’ motion to be
dismissed from this action because he was busy attending court
hearings and assisting in the training of a new paralegal.
8.
Mot.
In the court’s view, these “reasons” merely consist of
standard activities in the week of virtually any litigator.
This
is by no means the first time the court has been told that an
attorney has missed a deadline because he or she was “busy,” but
when an attorney has repeatedly missed deadlines, the court is
hard-pressed to accept being “busy” as a ground for excusing the
missing of court deadlines.
Lacking a nonfrivolous explanation for the Casinos’
delay, the court presumes prejudice.
See Hernandez v. City of El
Monte, 138 F.3d 393, 401 (9th Cir. 1998).
As discussed above,
the reasons given by the Casinos’ counsel echo reasons he has
given in other circumstances.
of prejudice.
They do not rebut the presumption
The court also notes that the resulting prejudice
to the Casinos from denial of reconsideration is diminished by
the fact that this order does not result in the outright
dismissal of the action, as one Defendant still remains.
Cf.
Lemoge, 587 F.3d at 1195 (court may, if appropriate, consider
prejudice to movant resulting from denial of reconsideration).
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Finally, “length of delay” does not weigh in favor of
reconsideration.
The Casinos’ counsel represents that he was
“intending to file an amended complaint and/or opposition
memorandum no later than July 4, 2011,” resulting in a delay of
proceedings by a month or two at most.
Mot. 15.
However, the
Casinos did not prepare a proposed Amended Complaint until August
12, 2011, when they filed their reply brief to the present motion
and belatedly attached the proposed Amended Complaint as an
exhibit.
The court cannot conclude, therefore, that only a
“short delay” would have resulted if the court had permitted late
amendment of the Complaint.
Having carefully considered the circumstances
surrounding dismissal of Bank of America and MERS from this
action, the court concludes that reconsideration is not warranted
in this instance.
The Casinos’ motion is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 15, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Casino v. Bank of America; Civil No. 10-00728 SOM/BMK; ORDER DENYING MOTION FOR
RECONSIDERATION.
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