Fields v. Nationstar Mortgage et al

Filing 186

ORDER DENYING PLAINTIFF'S MOTION AND DECLARATION TO WITHDRAW PLAINTIFF'S VOLUNTARY DISMISSAL WITHOUT PREJUDICE AND VACATE ORDER DISMISSING LEHMAN BROTHERS FSB AND LEHMAN BROTHERS HOLDINGS INC. re 184 Signed by JUDGE LESLIE E. KOBAYASHI on 09/07/2016. (eps )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 served by first class mail on September 8, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
vs.
)
)
)
NATIONSTAR MORTGAGE LLC;
CHARTER CAPITAL CORPORATION; )
)
AURORA LOAN SERVICING LLC;
)
AURORA BANK; STRUCTURED
)
ASSETS SECURITIES
CORPORATION, aka SASCO;
)
CITIBANK N.A. AS TRUSTEE FOR )
)
THE SASCO MORTGAGE PASSTHROUGH CERTIFICATES 2005-17 )
POOL GROUP 4; LEHMAN BROTHERS )
)
HOLDINGS INC.; MORTGAGE
)
ELECTRONIC REGISTRATION
)
SYSTEMS, aka MERS; MERSCORP
)
HOLDINGS, INC.; and DOE
)
ENTITIES 1-5O,
)
)
Defendants.
_____________________________ )
JANEECE FIELDS,

CIVIL 15-00015 LEK-KJM

ORDER DENYING PLAINTIFF’S MOTION AND DECLARATION
TO WITHDRAW PLAINTIFF’S VOLUNTARY DISMISSAL
WITHOUT PREJUDICE AND VACATE ORDER DISMISSING
LEHMAN BROTHERS FSB AND LEHMAN BROTHERS HOLDINGS INC.
Before the Court is pro se Plaintiff Janeece Fields’s
(“Plaintiff”) Motion and Declaration to Withdraw Plaintiff’s
Voluntary Dismissal Without Prejudice and Vacate Order Dismissing
Lehman Brothers FSB and Lehman Brothers Holdings Inc. (“Motion”),
filed on August 29, 2016.

[Dkt. no. 184.]

Because Plaintiff is

proceeding pro se, this Court must liberally construe her
filings.

See, e.g., Pregana v. CitiMortgage, Inc., Civil No.

14-00226 DKW-KSC, 2015 WL 1966671, at *2 (D. Hawai`i Apr. 30,
2015) (“The Court liberally construes the [plaintiffs’] filings
because they are proceeding pro se.” (citing Eldridge v. Block,
832 F.2d 1132, 1137 (9th Cir. 1987))).
I.

Motion for Reconsideration
First, this Court CONSTRUES Plaintiff’s Motion as a

motion for reconsideration of its April 18, 2016 Order Regarding
Responses to March 10, 2016 Order to Show Cause (“4/18/16
Order”).

See dkt. no. 156.

In the March 10, 2016 Order to Show

Cause (“3/10/16 OSC”), [dkt. no. 148,] this Court ordered
Plaintiff to show cause why it should not dismiss her claims
against the defendants named in her First Amended Complaint for
Fraud & Misrepresentation (“Amended Complaint”) upon whom she had
not yet served the Amended Complaint.1

Among the unserved

defendants was Defendant Lehman Brothers Holdings Inc. (“Lehman
Brothers Holdings”).2

On March 31, 2016, Plaintiff filed her

response to the 3/10/16 OSC, stating, among other things, that
she did not serve Lehman Brothers Holdings and was not pursuing

1

2015.

Plaintiff filed the Amended Complaint on September 28,
[Dkt. no. 145.]

2

In the Motion, Plaintiff asserts that “[b]oth Lehman
Brothers Holdings Inc. and Lehman Brothers FSB were named as
Defendants in the original complaint(s).” [Motion at 2 (some
alterations in original).] However, Lehman Brother FSB was not
named as a defendant in either the Amended Complaint or the
original Complaint, which Plaintiff filed on January 15, 2015
[dkt. no. 1].
2

her claims against it because it “could not be found due to [its]
business termination.”

[Dkt. no. 149 at 2, ¶ 3.]

In light of

Plaintiff’s representation, this Court dismissed Plaintiff’s
claims against Lehman Brothers Holdings pursuant to Fed. R. Civ.
P. 4(m), without prejudice, and directed the Clerk’s Office to
terminate Lehman Brothers Holdings as a party to this action.
[4/18/16 Order at 2.]
In the instant Motion, Plaintiff asks this Court to
vacate the 4/18/16 Order because she “relied on apparently
incorrect information about the Lehman Brothers entities being
defunct” and she “made a mistake in Motioning the Court
dismissing [sic] them.”

[Motion at 2.]

This Court has

previously stated that a motion for reconsideration
“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 Davis v. Abercrombie, Civil No.
11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D.
Hawaii June 2, 2014) (citation and internal
quotation marks omitted). This district court
recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when
there has been an intervening change of
controlling law; (2) new evidence has come to
light; or (3) when necessary to correct a clear
error or prevent manifest injustice.” Tierney v.
Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585,
at *1 (D. Hawaii May 1, 2013) (citing School
District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993)). . . .
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 143

00135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
2014).
The Motion does not argue that there has been an
intervening change in the law, and it does not assert that
reconsideration is necessary because of clear error or manifest
injustice.

Plaintiff argues that this Court should reconsider

the 4/18/16 Order because of what she contends is newly
discovered evidence that Lehman Brothers Holdings is still an
operational entity.

Whether Plaintiff brings her motion for

reconsideration pursuant to Local Rule 60.1 or Fed. R. Civ. P.
60(b)(2),3

3

Local Rule 60.1 states, in pertinent part:
Motions seeking reconsideration of casedispositive orders shall be governed by Fed. R.
Civ. P. 59 or 60, as applicable. Motions 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.

Fed. R. Civ. P. 60(b)(2) states:
On motion and just terms, the court may relieve a
party or its legal representative from a final
judgment, order, or proceeding for the following
reasons:
. . . .
(continued...)
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it makes no difference . . . because the standards
are essentially the same. Under Rule 60(b)(2),
[r]elief from judgment on the basis of newly
discovered evidence is warranted if (1) the
moving party can show the evidence relied on
in fact constitutes “newly discovered
evidence” within the meaning of Rule 60(b);
(2) the moving party exercised due [or
reasonable] diligence to discover this
evidence; and (3) the newly discovered
evidence must be of “such magnitude that
production of it earlier would have been
likely to change the disposition of the
case.”
Feature Realty, Inc. v. City of Spokane, 331 F.3d
1082, 1093 (9th Cir. 2003) (quoting Coastal
Transfer Co. v. Toyota Motor Sales, U.S.A., Inc.,
833 F.2d 208, 211 (9th Cir. 1987)). Rule
60(b)(2), as amended in 2007, requires “reasonable
diligence” (instead of “due diligence”) for newly
discovered evidence. The change, however, was
“intended to be stylistic only.” See Cole v.
Hawaii, 2008 WL 508075, at *1 n.2 (D. Haw. Feb.
26, 2008).
Tagupa v. Vipdesk, Inc., CIV. No. 13-00428 JMS-KSC, 2016 WL
236210, at *2 n.2 (D. Hawai`i Jan. 19, 2016) (some alterations in
Tagupa); see also Chapman v. Journal Concepts, Inc., Civil No.
07–00002 JMS/LEK, 2007 WL 4354417, at *2 (D. Hawai`i Dec. 13,
2007) (“To base a motion for reconsideration on the discovery of
new evidence, Plaintiff is ‘obliged to show not only that this
evidence was newly discovered or unknown until after the hearing,

3

(...continued)
(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)[.]
5

but also that it could not with reasonable diligence have
discovered and produced such evidence at the hearing.’” (quoting
Frederick S. Wyle Prof’l Corp. v. Texaco, Inc., 764 F.2d 604, 609
(9th Cir. 1985))).

In addition, this district court “has denied

motions seeking reconsideration of orders based on evidence
and/or legal arguments that the party seeking reconsideration
could have raised in connection with an original motion.”

See,

e.g., Streamline Consulting Grp. LLC v. Legacy Carbon LLC, CIVIL
NO. 15-00318 SOM/KSC, 2016 WL 1064444, at *1 (D. Hawai`i Mar. 16,
2016) (citing Barker v. Gottlieb, 2015 WL 181776 (D. Haw.
Jan. 14, 2015)).
In the instant case, Plaintiff relies on purportedly
newly discovered evidence that Lehman Brothers Holdings is still
an operational business entity.

In support of this position, she

states:
Lehman Brothers’ FSB was assumed to be
defunct since September or October 2008, but may
be operating in some capacity. Sometime between
2/25/2014 and 6/24/2015, Rick Skogg, “Secretary”
of Lehman Brothers FSB affixed an undated
indorsement stamp to an alleged “verified” Note.
For Lehman Brothers’ FSB to indorse a Note, it is
assumed they were functioning in some capacity.
That alleged Note and alleged allonge are at issue
in this case. If Rick Skogg is “Secretary” of
MERS or some other entity, it is omitted on the
Note he indorsed. Both Lehman Brothers Holdings
Inc. and Lehman Brothers FSB were named as
Defendants in the original complaint(s).
[Motion at 2.]

However, the fact that Rick W. Skogg, as Vice

President of Lehman Brothers Bank, FSB, signed the Allonge to
6

Note (Corone Lender) (“Allonge”) associated with Plaintiff’s
promissory note (“Note”) was known to Plaintiff at the time she
filed her response to the 3/10/16 OSC.4

As the Motion states,

Mr. Skogg signed the Allonge between February 25, 2014 and June
24, 2015.

Even if Plaintiff never received a copy of the Allonge

in connection with the servicing of her loan, Plaintiff was
served with the a copy of her Note, including the Allonge, in
July 2015 in the course of this litigation.

See supra note 4.

Thus, to the extent that Plaintiff’s Motion asserts
that Mr. Skogg’s signature on the Allonge indicates that Lehman
Brothers Holdings is still operational, this Court FINDS that
Plaintiff has failed to present newly discovered evidence which
was not available to her at the time she filed her response to
the 3/10/16 OSC.

This Court therefore CONCLUDES that Plaintiff

has failed to establish any ground that warrants reconsideration
of the 4/18/16 Order.

Insofar as Plaintiff’s Motion can be

construed as a motion for reconsideration of the 4/18/16 Order,
Plaintiff’s Motion is HEREBY DENIED.

4

A copy of the Note, including the Allonge, is in the
record as Exhibit A to the Declaration of A.J. Loll, submitted
with Defendant Nationstar Mortgage LLC’s Concise Statement of
Facts in Support of its Motion for Summary Judgment, or, in the
Alternative, for Dismissal of the Complaint [ECF No. 1], Filed
January 15, 2015. [Filed 7/24/15 (dkt. no. 32-3).]
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II.

Motion to Add Party
This Court also liberally CONSTRUES the instant Motion

as a motion for leave to amend Plaintiff’s current pleading to
add Lehman Brothers Holdings Inc. and Lehman Brothers FSB as
defendants.5

However, the deadline to add parties or amend

pleadings was June 26, 2015.

[Rule 16 Scheduling Order, filed

3/30/15 (dkt. no. 18), at ¶ 5.]

Thus, this Court DENIES

Plaintiff’s request for leave to add Lehman Brothers Holdings
Inc. and Lehman Brothers FSB as defendants because the request is
untimely.

This Court makes no findings or conclusions on the

merits of Plaintiff’s request to add the Lehman entities as
defendants.
In order for Plaintiff’s request to add the Lehman
entities as defendants to be considered on the merits, Plaintiff
would have to obtain an amendment of the Rule 16 Scheduling
Order.

See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified

only for good cause and with the judge’s consent.”).

5

This Court

On December 15, 2015, Plaintiff filed a Motion for Leave
of Court to File a Second Amended Complaint. [Dkt. no. 135.]
However, that motion was terminated, without a decision on the
merits, in light of Plaintiff’s settlement with Defendant
Nationstar Mortgage LLC and Defendant Charter Capital
Corporation.
On August 29, 2016, Plaintiff filed a Motion for Leave of
Court to File a Third Amended Complaint and Request for Judicial
Notice of the Court’s Own Record. [Dkt. no. 181.] That motion
is currently set for a hearing before the magistrate judge on
October 13, 2016. [Dkt. no. 185.] It addresses proposed
amendments other than the addition of the Lehman entities as
defendants.
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cannot construe the instant Motion as a motion for an amendment
of the Rule 16 Scheduling Order because the Motion does not
address the “good cause” requirement.

Plaintiff may file another

motion that seeks an amendment of the scheduling order and leave
to add the Lehman entities as defendants.

If Plaintiff chooses

to do so, she must file the motion by October 7, 2016.

The

motion will be referred to the magistrate judge.
This Court EMPHASIZES that the 4/18/16 Order dismissed
Plaintiff’s claims in the Amended Complaint against Lehman
Brothers Holdings without prejudice.

Thus, even if Plaintiff is

not allowed to add the Lehman entities as defendants in this
case, that does not prevent her from filing a separate action
against Lehman Brothers Holdings and/or Lehman Brothers FSB.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion and
Declaration to Withdraw Plaintiff’s Voluntary Dismissal Without
Prejudice and Vacate Order Dismissing Lehman Brothers FSB and
Lehman Brothers Holdings Inc., filed August 29, 2016 – which this
Court has construed as both a motion for reconsideration of its
April 18, 2016 Order and a motion for leave to add defendants, is
HEREBY DENIED.

If Plaintiff chooses to file a motion that seeks

an amendment of the scheduling order and leave to add the Lehman

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entities as defendants, she must file the motion by October 7,
2016.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 7, 2016.

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

JANEECE FIELDS VS. NATIONSTAR MORTGAGE, LLC, ET AL; CIVIL 1500015 LEK-KJM; ORDER DENYING PLAINTIFF’S MOTION AND DECLARATION
TO WITHDRAW PLAINTIFF’S VOLUNTARY DISMISSAL WITHOUT PREJUDICE AND
VACATE ORDER DISMISSING LEHMAN BROTHERS FSB AND LEHMAN BROTHERS
HOLDINGS INC.

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