Billete et al v. Deutsche Bank National Trust Company et al

Filing 22

ORDER GRANTING PLAINTIFFS' MOTION TO RECONSIDER JULY 2, 2013 ORDER DISMISSING CLAIMS WITH PREJUDICE AND FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT re: 17 21 . ~ Excerpt of Conclusion: "Plaintiffs shall file their First Amended Complaint by July 31, 2013. The Court CAUTIONS Plaintiffs that the failure to file their First Amended Complaint by July 31, 2013 will result in the automatic dismissal with prejudi ce of the claims that the 5/29/13 Order dismissed without prejudice." ~ Signed by JUDGE LESLIE E. KOBAYASHI on 7/26/2013. [Written order follows the Court's 7/24/2013 Minute Order (doc no. 21 ) granting Motion for Reconside ration. Related: May 29, 2013 Order: doc no. 15 ] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail add ress listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications. DOCKET TEXT MODIFIED on 7/26/2013 to correct document number link to correlate to the Motion for Reconsideration. Motion for Reconsideration is doc. no. 17 . NEF REGENERATED. (afc).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH BILLETE; MARIVEL
BILLETE,

)
)
)
)
Plaintiffs,
)
vs.
)
)
DEUTSCHE BANK NATIONAL TRUST )
)
COMPANY, NATIONAL BANKING
ASSOCIATION AS TRUSTEE FOR
)
)
GSR 2006-OA1; MORTGAGE
)
ELECTRONIC REGISTRATION
SYSTEMS, INC.; and DOES 1-50, )
)
)
Defendants.
_____________________________ )
)

CIVIL NO. 13-00061 LEK-KSC

ORDER GRANTING PLAINTIFFS’ MOTION TO RECONSIDER
JULY 2, 2013 ORDER DISMISSING CLAIMS WITH PREJUDICE
AND FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT
Before the Court is Plaintiffs Joseph Billete and
Marivel Billete’s (“Plaintiffs”) Motion to Reconsider July 2,
2013 Order Dismissing Claims with Prejudice and for Extension of
Time to File First Amended Complaint (“Motion”), filed on July 3,
2013.

[Dkt. no. 17.]

Defendant Deutsche Bank National Trust

Company, National Banking Association as Trustee for GSR 2006-OA1
(“Deutsche Bank”) filed its memorandum in opposition on July 22,
2013.

[Dkt. no. 20.]

The Court finds this matter suitable for

disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i.

After careful consideration of the

Motion, supporting and opposing memoranda, and the relevant legal

authority, Plaintiffs’ Motion is HEREBY GRANTED for the reasons
set forth below.
BACKGROUND
On May 29, 2013, this Court issued its Order Granting
in Part and Denying in Part Defendant’s Motion to Dismiss
Plaintiffs’ Complaint Filed January 16, 2013 (“5/29/13 Order”).1
[Dkt. no. 15.2]

In the 5/29/13 Order, this Court dismissed the

following claims without prejudice: Plaintiffs’ breach of
contract claim against Deutsche Bank (Count IV); and the portions
of Plaintiffs’ UDAP claim against Deutsche Bank and MERS
(Count V) regarding loan modification, predatory lending, and
changes to the monthly payment amount.
*11.

2013 WL 2367834, at *9,

This Court gave Plaintiffs leave to amend these claims and

ordered Plaintiffs to file their First Amended Complaint by no
later than July 1, 2013.

This Court cautioned Plaintiffs that,

if they failed to file their First Amended Complaint by July 1,
2013, the claims which the 5/29/13 Order dismissed without
prejudice could be dismissed with prejudice.

Id. at *11.

After Plaintiffs failed to file their First Amended
Complaint by July 1, 2013, this Court issued the Order Dismissing
Claims with Prejudice on July 2, 2013 (“7/2/13 Order”).

[Dkt.

1

This Court incorporates by reference the abbreviations for
the names of parties, other relevant entities, and documents used
in the 5/29/13 Order.
2

The 5/29/13 Order is also available at 2013 WL 2367834.
2

no. 16.]
The next day, Plaintiffs filed the instant Motion,
stating that Plaintiffs’ counsel unintentionally missed the
July 1, 2013 deadline as “a result of excusable neglect.”
[Motion, Decl. of Counsel at ¶ 8.]

Plaintiffs also argue that

they will suffer serious prejudice unless this Court reconsiders
the 7/2/13 Order, and Defendants will not suffer any prejudice if
this Court allows Plaintiffs additional time to file the First
Amended Complaint.

[Id. at ¶¶ 9-10.]

In its memorandum in opposition, Deutsche Bank
emphasizes that the 5/29/13 Order gave Plaintiffs ample time to
file their First Amended Complaint.

Deutsche Bank also argues

that Plaintiffs have not explained why they failed to meet the
July 1, 2013 deadline, and therefore this Court should not accept
Plaintiffs’ claim of excusable neglect.

Deutsche Bank asserts

that it “will be prejudiced by any further delay in obtaining
rightful possession of the subject Property.”

[Response at 3.]

Deutsche Bank emphasizes that it prevailed in the ejectment
action almost one year ago, and Deutsche Bank argues that
Plaintiffs cannot assert a plausible claim of superior title
against Deutsche Bank.

Deutsche Bank urges this Court to give

conclusive effect to the new Certificate of Title identifying
Deutsche Bank as the owner of the Property.

Deutsche Bank

therefore contends that Plaintiffs have not established any basis

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for reconsideration of the 7/2/13 Order.
DISCUSSION
In order to obtain reconsideration of the 7/2/13 Order,
Plaintiffs’ Motion “must accomplish two goals.

First, a motion

for reconsideration must demonstrate reasons why the court should
reconsider its prior decision.

Second, a motion for

reconsideration must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.”

See Donaldson v. Liberty Mut. Ins. Co., 947 F. Supp.

429, 430 (D. Hawai`i 1996) (citation omitted); accord Tom v. GMAC
Mortg., LLC, CIV. NO. 10–00653 SOM/BMK, 2011 WL 2712958, at *1
(D. Hawai`i July 12, 2011).

This district court recognizes three

grounds for granting reconsideration of an order: “(1) an
intervening change in controlling law; (2) the availability of
new evidence; and (3) the need to correct clear error or prevent
manifest injustice.”

White v. Sabatino, 424 F. Supp. 2d 1271,

1274 (D. Hawai`i 2006) (some citations omitted) (citing Mustafa
v. Clark Cnty. Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir.
1998)).

The District of Hawai`i has implemented these standards

in Local Rule 60.1.3

“Whether or not to grant

reconsideration[,]” however, “is committed to the sound

3

Local Rule 60.1 provides, in part, that: “[m]otions for
reconsideration of interlocutory orders may be brought only upon
the following grounds: (a) Discovery of new material facts not
previously available; (b) Intervening change in law; (c) Manifest
error of law or fact.”
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discretion of the court.”

Navajo Nation v. Confederated Tribes &

Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir.
2003) (citing Kona Enter., Inc. v. Estate of Bishop, 229 F.3d
877, 883 (9th Cir. 2000)).
Plaintiffs’ Motion does not assert an intervening
change in the law, the availability of new evidence, or a clear
error in the 7/2/13 Order.

Plaintiffs essentially argue that

reconsideration is necessary to prevent manifest injustice
because Plaintiffs’ counsel inadvertently missed the July 1, 2013
filing deadline.

This Court filed the 7/2/13 Order one day after

the deadline, and Plaintiffs filed the instant Motion the next
day.

Thus, while this Court emphasizes that it does not condone

Plaintiffs’ failure to comply with the July 1, 2013 deadline,
this Court recognizes that Plaintiffs attempted to correct
counsel’s error within forty-eight hours of the elapsed deadline.
This Court also acknowledges that Deutsche Bank is
frustrated with the instant Motion because Deutsche Bank believes
that Count IV and Count V are meritless.

This Court, however,

has already found that it is arguably possible for Plaintiffs to
cure the defects in those claims by amendment.
2013 WL 2367834, at *9, *11.

5/29/13 Order,

Thus, the issue of whether

Plaintiffs’ intended amendments to Counts IV and V are meritless
is not before this Court in the instant Motion.

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The Court next turns to Deutsche Bank’s argument that
Deutsche Bank will be prejudiced by any further delays preventing
it from taking possession of the Property.
argument is misplaced.

Deutsche Bank’s

Even if this Court denied the Motion,

Deutsche Bank would not be able to take possession of the
Property immediately because the 5/29/13 Order DENIED Deutsche
Bank’s motion to dismiss as to the portions of Count I,
Count III, and Count V based on the assertion that the Assignment
is invalid because HCL was dissolved prior to the Assignment and
as to the portions of Plaintiffs’ claims alleging that the
foreclosure is invalid because Deutsche Bank failed to comply
with Haw. Rev. Stat. § 667–5.

Id. at *11.

The parties will

continue to litigate this action irrespective of the disposition
of the instant Motion.

The narrow issue before this Court

regarding prejudice is whether Deutsche Bank has suffered, or
will suffer, prejudice as a result of Plaintiffs’ failure to file
the First Amended Complaint by July 1, 2013.

As previously

stated, Plaintiffs sought to correct their error within fortyeight hours and, if this Court grants the Motion and Plaintiffs
file their First Amended Complaint, Plaintiffs will have filed
the First Amended Complaint within approximately one month of the
original deadline.

There is no evidence that these relatively

brief delays are unduly prejudicial to Deutsche Bank,
particularly because the 7/2/13 Order did not dispose of the

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entire action.
Thus, under the circumstances of this case, this Court
CONCLUDES that reconsideration is necessary to prevent manifest
injustice.

This Court, however, reiterates that all parties and

their counsel must follow the applicable rules of court and all
court-ordered deadlines.

The Court CAUTIONS Plaintiffs that the

future failure to comply with applicable deadlines, even if
inadvertent, may result in sanctions, including, inter alia,
dismissal of some or all of Plaintiffs’ claims.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion to
Reconsider July 2, 2013 Order Dismissing Claims with Prejudice
and for Extension of Time to File First Amended Complaint, filed
July 3, 2013, is HEREBY GRANTED.

Plaintiffs shall file their

First Amended Complaint by July 31, 2013.

The Court CAUTIONS

Plaintiffs that the failure to file their First Amended Complaint
by July 31, 2013 will result in the automatic dismissal with
prejudice of the claims that the 5/29/13 Order dismissed without
prejudice.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, July 26, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JOSEPH BILLETE, ET AL. VS. DEUTSCHE BANK NATIONAL TRUST COMPANY.,
N.A., ET AL; CIVIL NO. 13-00061 LEK-KSC; ORDER GRANTING
PLAINTIFFS’ MOTION TO RECONSIDER JULY 2, 2013 ORDER DISMISSING
CLAIMS WITH PREJUDICE AND FOR EXTENSION OF TIME TO FILE FIRST
AMENDED COMPLAINT

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