Levy v. Wells Fargo Bank, N.A. et al
Filing
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ORDER DENYING MOTION FOR RECONSIDERATION 28 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 9/14/11. (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
DAVID LEVY,
)
)
Plaintiff,
)
)
vs.
)
)
WELLS FARGO BANK, as Trustee )
for Option One Mortgage Loan )
Trust 2006-1, Asset Backed
)
Certificates, Series 2006-1; )
et al.
)
)
Defendants.
)
_____________________________ )
CIV. NO. 11-00159 SOM/KSC
ORDER DENYING MOTION FOR
RECONSIDERATION
ORDER DENYING MOTION FOR RECONSIDERATION
I.
INTRODUCTION.
On June 22, 2011, this court dismissed the Complaint
filed by Robin R. Horner, Esq., on behalf of his client, David
Levy, giving Levy leave to file an Amended Complaint no later
than July 12, 2011.
June 22, 2011.
behalf of Levy.
See Order Dismissing Complaint, ECF No. 23,
Horner failed timely file an Amended Complaint on
Instead, on July 14, 2011, claiming
“administrative error” with no further explanation, Horner filed
a motion to file a proposed Amended Complaint.
See ECF No. 24.
That motion was denied on August 23, 2011, with the
court explaining that Horner’s repeated assertion of
“administrative error,” without more, was insufficient to justify
his failure to timely file an Amended Complaint on behalf of
Levy.
See Order Denying Motion for Leave to File Amended
Complaint, ECF No. 26, Aug. 23, 2011.
That order detailed some
of Horner’s failures to comply with deadlines because of
“administrative error.”
Id.
The court additionally noted that
Defendant Wells Fargo was barely mentioned in the lengthy
proposed Amended Complaint and that the filing of it would have
been futile because it asserted claims against Lenders who were
not Defendants in this case, not against Wells Fargo.
Id.
“However, to avoid prejudicing Levy for his counsel’s
‘administrative error,’ the court [granted] Levy leave to file
another motion to amend his complaint no later than August 29,
2011.”
Id.
The court warned, “If Levy fails to file such a
motion, judgment will automatically be entered in favor of Wells
Fargo.”
Id.
Having received no such motion by the deadline, the
court entered judgment against Levy on August 30, 2011.
See ECF
No. 27.
On September 12, 2011, Levy, through Horner, filed a
“Motion for Reconsideration of the Court’s Order Dated August 30,
2011.”
This motion does nothing more than rehash the same
argument Horner had made numerous times.
In fact, the motion is
very similar to another motion for reconsideration filed in
Casino v. Bank of America, Civ. No. 10-00728 SOM/BMK, ECF No. 39,
July 15, 2011.
That motion was denied on August 15, 2011, with
the court once again explaining the insufficiency of Horner’s
repeated assertion of “administrative error” to justify his
numerous failures to follow deadlines.
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See Order Denying the
Casino’s Motion for Reconsideration, Civ. No. 10-00728 SOM/BMK,
ECF No. 45, Aug. 15, 2011.
Despite being told that his repeated invocation of
“administrative error,” without more, is insufficient to justify
untimely filings, see ECF No. 26, Horner once again invokes
“administrative error” in the present reconsideration motion.
It
also claims that Horner has taken steps to prevent such
“administrative errors”--the same claim Horner has advanced in
other cases before this court.
See ECF No. 28; Rey v.
Countrywide Home Loans, Inc., Civ. No. 11-00142 JMS/KSC, ECF No
25-1, June 29, 2011 (Horner claiming “administrative error”
caused a failure to timely file an amended complaint and that he
“hired an additional experienced paralegal to ensure this type of
oversight does not happen again”); Enriquez v. Aurora Loan
Services, LLC, Civ. No. 10-00281 SOM/KSC, ECF No. 24, Mar. 4,
2011 (letter from Horner indicating that an oversight in
calendaring caused an opposition to not be timely filed and
stating that steps have been taken to avoid such oversights in
the future).
Horner does not explain why he ignored this court’s
warning that, if he failed to file a motion seeking leave to file
an Amended Complaint by August 29, 2011, judgment would
automatically be entered against his client.
again ignored a deadline.
Instead, he once
Accordingly, the motion for
reconsideration, ECF No. 28, is denied.
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II.
STANDARD.
In part, the motion for reconsideration is brought
under Rule 59(e) of the Federal Rules of Civil Procedure, which
authorizes motions to alter or amend judgment.
Motions to alter
or amend judgment “may not be used to relitigate old matters, or
to raise arguments or present evidence that could have been
raised prior to entry of judgment.”
11 Charles Alan Wright,
Arthur Miller, and Mary Kay Kane, Federal Practice and Procedure
§ 2810.1 (2d ed. 1995).
A decision whether to grant or deny a
Rule 59(e) motion is committed to the sound discretion of this
court.
McDowell v. Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
1999) (“the district court enjoys considerable discretion in
granting or denying the motion”); see also Herbst v. Cook, 260
F.3d 1039, 1044 (9th Cir. 2001) (“denial of a motion for
reconsideration is reviewed only for an abuse of discretion”).
There are four basic grounds on which a Rule 59(e) motion may be
granted: 1) a manifest error of law or fact upon which the
judgment is based; 2) newly discovered or previously unavailable
evidence; 3) manifest injustice; and 4) an intervening change in
controlling law.
McDowell, 197 F.3d at 1255 n.1.
The reconsideration motion is also brought under Rules
60(b)(1), (2) and (6) of the Federal Rules of Civil Procedure,
which permit relief from “final” judgments, orders, or
proceedings based on: “(1) mistake, inadvertence, surprise, or
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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). . .; or (6) any other
reason that justifies relief.”
Like motions brought under Rule
59(e), Rule 60(b) motions are committed to the discretion of the
trial court.
Barber v. Haw., 42 F.3d 1185, 1198 (9th Cir. 1994)
(“Motions for relief from judgment pursuant to Federal Rule of
Civil Procedure 60(b) are addressed to the sound discretion of
the district court.”).
The Ninth Circuit has noted that, for purposes of Rule
60(b), “excusable neglect” is liberally construed.
Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc).
Rodgers v.
Nevertheless,
ignorance and carelessness on the part of the party or his or her
attorney do not provide grounds for relief under Rule 60(b)(1).
Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1043 (9th Cir.
1992).
When a party misses a filing deadline, the Ninth Circuit
has instructed courts to examine four factors to determine
whether there was “excusable neglect”: “the danger of prejudice
to the debtor, the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.”
Briones v. Riviera
Hotel & Casino, 116 F.3d 379, 381-82 (9th Cir. 1997) (adopting
test and quoting from Pioneer Inv. Servs. Co. v. Brunswick
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Assocs., Ltd., 507 U.S. 380 (1993)); accord 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)).
III.
ANALYSIS.
Horner, counsel for Levy, once again raises the same
tired argument.
That is, he again claims “administrative error”
as justification for another failure to comply with court
deadlines.
As discussed in the August 23, 2011, order seeking
leave to file an Amended Complaint, a mere statement that there
was an “administrative error,” without more, does not justify a
failure to comply with deadlines, especially given how often
Horner has failed to meet deadlines and has cited “administrative
error” as the cause of those failures.
In this case, Horner not only failed to timely file an
Amended Complaint, which he was given leave to file, but also
failed to comply with a subsequent deadline to file a motion
seeking leave to file an Amended Complaint.
The court
specifically told Horner that, in denying his motion for leave to
file an Amended Complaint, the court did not want to prejudice
Levy and therefore gave him an opportunity to file a motion
seeking leave to file an Amended Complaint no later than August
29, 2011.
The court warned that, if such a motion was not timely
filed, judgment would automatically be entered.
The motion for
reconsideration claims “administrative error” as the reason the
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Amended Complaint was not timely filed, but provides no reason
why the separate deadline to file a motion seeking leave to file
an Amended Complaint was ignored.
Given the failure to explain why the second chance was
not taken, the motion for reconsideration fails to satisfy both
Rules 59(e) and 60(b).
First, it fails to provide any reason why
reconsideration would be justified under Rule 59(e).
Second,
although the entry of judgment may prejudice Levy, the motion for
reconsideration fails to justify the delay in the proceedings,
and, in fact, fails to provide any reason for the delay, other
than Horner’s inability to comply with court deadlines.
Under
these circumstances, the court cannot find a good faith delay or
excusable neglect for purposes of Rule 60(b)(1).
116 F.3d at 381-82.
See Briones,
The reconsideration motion also fails to
demonstrate new evidence for purposes of Rule 60(b)(2).
Nor does
it describe any “extraordinary circumstance” justifying relief
under Rule 60(b)(6).
See Community Dental Servs. v. Tani, 282
F.3d 1164, 1170-71 (9th Cir. 2002) (holding that an attorney’s
actions, which included not only ignoring deadlines but also
lying to the client about the status of litigation, amounted to
“gross negligence,” which may constitute “extraordinary
circumstances” for purposes of Rule 60(b)(6), and which is
distinguishable from negligence or neglect).
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Because no explanation is given as to why no timely
motion was filed by August 29, 2011, the court has no reason to
reconsider the entry of judgment on August 30, 2011.
The court
understands that Levy is being denied the opportunity to have
some of his claims adjudicated on the merits, and that counsel’s
actions are prejudicing Levy.
However, this court’s attempt in
another action to punish only Horner, not his client, by ordering
Horner to pay a fine has had no effect on Horner.
the fine but did not adjust his conduct.
Horner paid
At this point, the
court must also consider the prejudice other parties endure when
Horner flouts deadlines and keeps Defendants “on the hook” for
long periods.
This ruling, of course, does not leave Levy without any
remedy.1
See Link v. Wabash R. Co., 370 U.S. 626, 634 n.10
(1962) (“And if an attorney’s conduct falls substantially below
what is reasonable under the circumstances, the client’s remedy
is against the attorney in a suit for malpractice.
1
But keeping
The court notes, however, that Levy is prejudiced only if,
but for Horner’s conduct, Levy had claims that might have been
successful. Some of the counts in the proposed Amended Complaint
are similar to counts asserted in an Amended Complaint filed in
Rey v. Countrywide Home Loans, Inc., Civ. No. 11-00142 JMS/KSC.
In that case, Judge Seabright issued Rule 11 sanctions when
Horner reasserted in an amended complaint claims that were nearly
identical to those that were earlier dismissed. See Order . . .
Issuing Rule 11 Sanctions Against Plaintiff’s Counsel, Robin
Horner, Civ. No. 11-00142 JMS/KSC, ECF No. 42, Sept. 13, 2011.
It is not clear that, had this court allowed Horner to file a
late motion, it would have been granted, or that, if Horner had
been given leave to file amended claims, Levy would have
prevailed on any of them.
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this suit alive merely because plaintiff should not be penalized
for the omissions of his own attorney would be visiting the sins
of plaintiff’s lawyer upon the defendant.”).
IV.
CONCLUSION.
For the foregoing reasons, the court denies the motion
for reconsideration, ECF No. 28.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 14, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Levy v. Wells Fargo, et al., Civil No. 11-00159 SOM/KSC; ORDER DENYING MOTION FOR
RECONSIDERATION
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