Whittington v. Bank of New York Mellon, The et al
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT TO REOPEN CASE 41 Motion to Reopen Case. Signed by JUDGE LESLIE E. KOBAYASHI on 02/24/2017. (eps, )CERTIFICATE OF SERVICEParticipants registe red 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 the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DARYL JEAN KATSUKO
THE BANK OF NEW YORK MELLON
FKA BANK OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWMBS, )
INC., CHL MORTGAGE PASS)
THROUGH TRUST 2005-24,
MORTGAGE PASS-THROUGH 2005)
24, SHELLPOINT MORTGAGE
CIVIL 16-00014 LEK-KSC
ORDER DENYING PLAINTIFF’S MOTION FOR
RELIEF FROM JUDGMENT TO REOPEN CASE
Before the Court is pro se Plaintiff Daryl Jean Katsuko
Whittington’s (“Plaintiff”) Motion for Relief from Judgment to
Reopen Case (“Rule 60 Motion”), filed on February 22, 2017.
[Dkt. no. 41.]
The Court has considered the Rule 60 Motion as a
non-hearing matter pursuant to Rule LR7.2(e) of the Local Rules
of Practice of the United States District Court for the District
of Hawai`i (“Local Rules”).
After careful consideration of the
Rule 60 Motion and the relevant legal authority, Plaintiff’s
motion is HEREBY DENIED for the reasons set forth below.
The Judgment in a Civil Case (“Judgment”) was entered
on November 1, 2016.
[Dkt. no. 40.]
In the Rule 60 Motion,
Plaintiff seeks relief from the Judgment and asks this Court to
reopen her case pursuant to Fed. R. Civ. P. 60(b)(1), which
states: “On motion and just terms, the court may relieve a party
. . . from a final judgment . . . for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect[.]”
Plaintiff argues that there was “an inadvertent and
excusable ‘mistake’” because she “failed to file a motion for
leave to file an amended complaint, and instead filed the First
[Rule 60 Motion at 2.1]
On June 2, 2016, this Court issued the Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss
Complaint Filed January 13, 2016 (“6/2/16 Order”).2
The 6/2/16 Order dismissed some of Plaintiff’s claims with
prejudice and dismissed some without prejudice.
As to the claims
Plaintiff’s Rule 60 Motion does not have page numbers.
The page number in this Court’s citations to the Rule 60 Motion
refer to the page numbers assigned to the document in the
district court’s electronic case filing system.
Defendants The Bank of New York Mellon, formerly known as
Bank of New York, as trustee for the Certificate Holders of
CWMBS, Inc., CHL Mortgage Pass-Through Certificates, Series
2005-24; New Penn Financial LLC, doing business as Shellpoint
Mortgage Servicing; and Mortgage Electronic Registration Systems,
Inc. (all collectively “Defendants”) filed their motion to
dismiss on March 28, 2016. [Dkt. no. 7.]
dismissed without prejudice, the 6/2/16 Order allowed Plaintiff
to file a motion seeking leave to file an amended complaint.
On July 5, 2016, Plaintiff filed a document titled
“Plaintiff’s First Amended Complaint.”
[Dkt. no. 27.]
in this Court’s October 11, 2016 Order Dismissing Case with
Prejudice (“10/11/16 Order”), [dkt. no. 36,] the magistrate judge
construed Plaintiff’s document as a motion for leave to file an
amended complaint (“Motion for Leave”) and held a hearing on the
motion, but ultimately denied the Motion for Leave because of
Plaintiff’s failure to include a copy of the proposed amended
This Court noted that Plaintiff did not file a
motion asking the magistrate judge to reconsider the 9/13/16
Order, nor did she file an appeal of that order to this Court.
[10/11/16 Order at 2-3.]
The 10/11/16 Order directed the Clerk’s
Office to close the case on November 1, 2016, unless Plaintiff
filed a motion for reconsideration of the 10/11/16 Order by
October 28, 2016.
[Id. at 4.]
Plaintiff did not file a motion for reconsideration of
the 10/11/16 Order, but she did file a motion for reconsideration
of the magistrate judge’s 9/13/16 Order (“10/12/16 Motion for
[Filed 10/12/16 (dkt. no. 37).]
The minutes of the hearing on the Motion for Leave is
docket number 34, and the magistrate judge’s September 13, 2016
order denying the Motion for Leave (“9/13/16 Order”) is docket
argued that the document she filed on July 5, 2016 was in fact
her amended complaint.
The magistrate judge denied Plaintiff’s
10/12/16 Motion for Reconsideration stating, in part:
To comply with the [6/2/16] Order and the
applicable rules, Plaintiff was required to file a
motion for leave to file an amended complaint and
a proposed amended complaint. Neither a motion,
nor an amended complaint, standing alone, would
have sufficed. There would be no operative
pleading in this case whether this Court construed
Plaintiff’s document as an amended complaint or as
a motion for leave to file an amended complaint.
[Order Denying Plaintiff’s Motion for Reconsideration as to
Denial of Amended Complaint, filed 10/14/16 (dkt. no. 38)
(“10/14/16 Order”), at 5.]
Plaintiff did not file an appeal to
this Court of the magistrate judge’s 10/14/16 Order.
In the Rule 60 Motion, Plaintiff states that she did
not understand the requirement to file both a motion for leave
and a proposed amended complaint.
She argues that, in light of
her pro se status, this was a reasonable, inadvertent, or
excusable mistake which warrants Rule 60(b)(1) relief.
argues that this Court should grant the Rule 60 Motion and allow
her to file a complete motion for leave with a proposed amended
This Court CONCLUDES that this argument is not
grounds for Rule 60(b)(1) relief because Plaintiff could have
raised it in either a motion asking the magistrate judge to
reconsider 9/13/16 Order or in an appeal to this Court of the
magistrate judge’s 9/13/16 Order.
Plaintiff did file the
10/12/16 Motion for Reconsideration, which asked the magistrate
judge to reconsider the 9/13/16 Order, but she did not raise the
Plaintiff could have raised the mistake
argument before this Court in either an appeal from the
magistrate judge’s 9/13/16 Order, a motion for reconsideration of
this Court’s 10/11/16 Order, or an appeal from the magistrate
judge’ 10/14/16 Order.
However, Plaintiff did not file any of
This Court therefore CONCLUDES that she has not
established any ground that warrants Rule 60(b)(1) relief from
On the basis of the foregoing, Plaintiff’s Motion for
Relief from Judgment to Reopen Case, filed February 22, 2017, is
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 24, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DARYL JEAN KATSUKO WHITTINGTON VS. THE BANK OF NEW YORK MELLON,
ET AL; CIVIL 16-00014 LEK-KSC; ORDER DENYING PLAINTIFF’S MOTION
FOR RELIEF FROM JUDGMENT TO REOPEN CASE
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