GMAC Mortgage, LLC v. McKeever et al
Filing
152
MEMORANDUM OPINION & ORDER: DENYING McKeever's 134 VERIFIED MOTION for Reconsideration & Vacate re 115 Memorandum Opinion & Order, 128 Order on Bill of Costs. Signed by Judge Jennifer B Coffman on 3/6/12.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
LEAD CIVIL ACTION NO. 08-459-JBC
CONSOLIDATED CIVIL ACTION NO. 08-456
GMAC MORTGAGE, LLC,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
HEATHER BOONE MCKEEVER, ET AL.,
DEFENDANTS.
***********
This matter is before the court on defendant Heather McKeever’s motion for
reconsideration and motion to vacate, R. 134. For the following reasons, the
motion will be denied.
This motion stems from the court’s grant of both a motion for costs and a
subsequent proposed itemized statement of costs brought by GMAC against
defendants Shane Haffey and Heather McKeever. See R.115 & R.128. The court
awarded GMAC an amount of $3,321.90 for its costs and expenses related to a
motion for sanctions brought by Haffey and McKeever against GMAC in the
consolidated action, styled as Heather McKeever, et al. v. Mortg. Elec. Registration
Sys., Inc., et al., Lexington Civil Action No. 08-456. The court found that “[t]he
imposition of costs is reasonable under Rule 11 because McKeever and Haffey
failed to offer any factual information that would support their motion for
sanctions,” and “it is clear from the record that they filed their motion for sanctions
for the unreasonable purpose of harassment.” R.115, p.2-3.
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Here, McKeever asks the court to reconsider its order approving GMAC’s
proposed itemized statement of costs and to vacate its order granting GMAC’s
motion for costs. In the Sixth Circuit, a motion to reconsider and vacate is treated
like a Fed. R. Civ. P. 59 (e) motion to alter or amend a judgment, see Smith v.
Hudson, 600 F.2d 60, 62 (6th Cir. 1979); therefore, McKeever’s motion may be
granted only (1) “if there is a clear error of law,” (2) if there is “newly discovered
evidence,” (3) if there is “an intervening change in controlling law,” or (4) “to
prevent manifest injustice.” Gencorp., Inc. v. Am. Int’l Underwriters, 178 F.3d
804, 834 (6th Cir. 1999). McKeever’s motion fails to provide any of these
justifications to either vacate the order for costs or reconsider the itemized
statement of costs, so it will be denied.
I. Order for Costs
McKeever does not provide grounds upon which the court may vacate its
order for costs, R.115. She mentions no error of law, newly discovered evidence,
intervening change of law, or injustice pertaining to the order. Rather, she
highlights one reference by the court in its order for costs and attempts to
undermine the validity of the court’s reasoning. McKeever states that the court, in
deciding to grant GMAC’s motion for costs, referenced a decision from August 5,
2011, (R.113) which forbids McKeever from direct communication with GMAC.
McKeever seems to imply that the court granted GMAC’s motion for costs at least
partly because it found that the defendants had violated the order of August 5,
2011. McKeever then attempts to discredit the court’s reliance on that order. She
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argues that GMAC’s motion for an order instructing McKeever not to contact
represented parties, R.108, was based upon a letter sent to the FDIC by McKeever
and carbon copied to GMAC’s CEO and in-house counsel. She also states that the
defendants have never contacted a representative from GMAC directly and that, on
the contrary, GMAC has initiated “continued unilateral contact” with the
defendants in violation of Rule 11.
McKeever’s argument in the context of her motion to vacate is without
merit.1 First, any argument contesting the letter attached to GMAC’s motion for an
order instructing McKeever not to contact represented parties should have been
raised in a response to GMAC’s motion for an order. McKeever filed no such
response. Even if the court found it appropriate to address the validity of the letter
because it is referenced in the court’s order for costs, McKeever’s argument does
not justify the court’s vacating its order for costs. McKeever does not claim that
the information offered about the letter constitutes newly discovered evidence or
that the court’s reliance on the letter was an error of law. She also does not argue
that manifest injustice occurred. Without such a showing, the court finds no
grounds to vacate its order.
Second, whether or not the defendants have violated the court’s order of
August 5, 2011, directing McKeever not to contact represented parties, is
immaterial to the court’s order for costs. McKeever states that neither of the
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The court agrees with GMAC in its response to McKeever’s motion to vacate that “McKeever fails
to even address the bases underlying the Court’s decision in its Memorandum Opinion and Order
(R.115) for awarding GMAC its costs and expenses for having to defend Defendants’ 2009 Rule 11
motion, or why the Court’s opinion was in error.” R.136, p.3. Nonetheless, the court chooses to
analyze each of McKeever’s arguments.
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defendants has contacted a representative of GMAC directly, but this information,
even if true, provides no justification for the court to vacate its order; the court
does not rely on the August 5, 2011, order, or any violation of such order, as
grounds for its order for costs.
The court issued its order for costs because it found that McKeever had filed
a motion for sanctions against GMAC without any support for the motion and that
evidence of record showed that the motion for sanctions was filed for harassment
purposes. In its analysis, the court referenced a letter sent to Jonathan Rose,
counsel for GMAC, in which McKeever was “threatening to bring a former
congressman as an expert witness and stating Rolling Stone magazine would cover
any trial between the parties,” R.115, p.3, as evidence of harassment. While the
court does cite the August 5, 2011, order, it does not discuss that order as
grounds for its order for costs. In fact, the reference to that order (R.113) on page
3 of the order for costs was an incorrect citation because the Rose letter discussed
directly prior to the citation is an exhibit to GMAC’s motion for an order instructing
McKeever not to contact represented parties in R.108, and not part of the court’s
August 5, 2011, order.
Third, the information regarding GMAC’s allegedly unilateral contact with the
defendants does not justify the court’s vacating its order. The majority of
McKeever’s motion describes GMAC’s allegedly unlawful unilateral contact with
the defendants. Again, this information is immaterial to the court’s decision on
whether an imposition of costs was reasonable due to the defendants’ filing of a
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motion for sanctions against GMAC, which the court had already deemed
unsupported. McKeever lists examples of GMAC’s allegedly unilateral conduct
with the defendants, but this conduct is not relevant to whether the defendants’
motion for sanctions was supported because the conduct described by McKeever
occurred after the filing of such motion.
II. Itemized Statement of Costs
McKeever does not demonstrate any of the four justifications for a grant of
her motion to reconsider the court’s order approving GMAC’s itemized statement of
costs, R.128. In fact, she does not specifically object to the list of costs or the
amount of $3,321.90 awarded to GMAC; rather, she states, “the Defendants
object to the issuance of the Order for Sanctions in its entirety, regardless of the
dollar amount submitted.” R.134, p.1. Additionally, McKeever never responded
with any objections to GMAC’s proposed itemized statement of costs before the
court entered an order. Because the court has previously addressed all of
McKeever’s arguments as they pertain to the order of costs and McKeever has
stated no reason that the itemized statement of costs should be scrutinized
specifically, the court finds no reason to reconsider its order adopting the itemized
statement of costs.
Accordingly,
IT IS ORDERED that McKeever’s motion for reconsideration and motion to
vacate, R. 134, is DENIED.
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Signed on March 6, 2012
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