Ward et al v. Branch Banking and Trust et al
MEMORANDUM. Signed by Judge Ellen L. Hollander on 5/22/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PHILLIP WARD, et al.,
Civil Action No. ELH-13-1968
BRANCH BANKING & TRUST,
Plaintiffs Phillip and Deidre Ward, who are self-represented, filed suit in July 2013
against defendants Branch Banking & Trust Company (“BB&T”) and Fisher Law Group, PLLC
(“Fisher Law Group”). See ECF 2. Their suit contained multiple counts related to defendants’
attempt to foreclose plaintiffs’ home in Glenn Dale, Maryland (the “Property”).
Plaintiffs filed an Amended Complaint in September 2013. ECF 14.
Plaintiffs’ claims against the Fisher Law Group were dismissed in June 2014, along with
four of the five counts alleged against BB&T. See ECF 28 (Memorandum); ECF 29 (Order). In
February 2016, BB&T moved for summary judgment with respect to the remaining claim,
alleging a violation of the Truth in Lending Act, as amended, 15 U.S.C. §§ 1601, et seq. ECF
89. By Memorandum Opinion (ECF 92) and Order (ECF 93) of May 17, 2016, I granted
BB&T’s motion for summary judgment.
On July 18, 2016, the Wards simultaneously filed a “Motion for Extension of Time to
File a Notice of Appeal” (ECF 94) and a notice of appeal to the Fourth Circuit. ECF 95. The
Wards sought an extension because the appeal was otherwise untimely. See ECF 95. BB&T
opposed the motion for extension (ECF 100) and the Wards replied.
Memorandum (ECF 102) and Order (ECF 103) of August 25, 2016, I denied the motion for
extension. In ECF 102, I explained that the Wards failed to demonstrate excusable neglect. ECF
102 at 11. The Fourth Circuit subsequently dismissed the appeal on February 27, 2017, as
untimely filed. ECF 105. The mandate issued on March 21, 2017. ECF 106.
On May 16, 2017, pursuant to Fed. R. Civ. P. 60(b), the Wards filed “Pro Se Plaintiffs’
Motion for Relief from Judgment of this Court’s Final Order Granting Summary Judgment to
Defendant Branch Banking and Trust.” ECF 107. The motion is supported by a memorandum
of law. ECF 107-1 (collectively, “Motion”). The Wards ask the Court to vacate the Order (ECF
93) granting summary judgment to BB&T. ECF 107. In particular, they claim that during
discovery, BB&T failed to disclose Christina Powers and Mary Elizabeth Schwiers as expert
witnesses under Fed. R. Civ. P. 26(a)(2), yet both provided declarations in regard to BB&T’s
summary judgment motion. ECF 107-1 at 6.
Although plaintiffs recognize that the requested remedy is “extraordinary”, they claim it
is necessary to “prevent manifest injustice . . . .” ECF 107 at 1. They also add that they are
“providing new arguments not previously raised”, relating to discovery violations. ECF 107-1 at
Federal Rule of Civil Procedure 60(b) provides:
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:
(1) mistake, inadvertence, surprise, or 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);
(3) fraud (whether previously called intrinsic
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Notably, Rule 60(b) “does not authorize a motion merely for reconsideration of a legal
issue.” United States v. Williams, 674 F.2d 310, 312 (4th Cir. 1982). “Where the motion is
nothing more than a request that the district court change its mind . . . it is not authorized by Rule
60(b).” Id. at 313.
Rule 60(c)(1), titled “Timing”, provides: “A motion under Rule 60(b) must be made
within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry
of the judgment or order or the date of the proceeding.” (Emphasis added). According to Wright
and Miller, motions under Rule 60(b)(1) through (3) must be made within a reasonable time, but
not later than within one year of the entry of judgment. C. Wright & A. Miller, Federal Practice
and Procedure, § 2866 (3d ed.). The authors explain, id.: “The one-year period represents an
extreme limit, and the motion may be rejected as untimely if not made within a ‘reasonable time’
even though the one-year period has not expired.” And, movants bear the burden of showing
timeliness under Rule 60(b). Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016), cert. denied
sub nom. Moses v. Thomas, ___ U.S. ___, 137 S. Ct. 1202 (2017).
In my view, although the Motion was technically filed within the maximum time
limitation of Rule 60(c)(1), it is not reasonable to raise a discovery issue 364 days after the entry
of judgment. The issue that the Wards now raise is not one that could have only been discovered
after judgment was entered or that was the result of concealment. To the contrary, the Wards
necessarily would have been aware of the issue concerning the alleged use of undisclosed experts
when BB&T filed its motion for summary judgment as to Count II, on or about February 12,
2016. See ECF 89. This is because both Powers and Schwiers provided declarations at that
time. See ECF 89-2 at 2-6 (Powers Declaration); ECF 89-3 (Schwiers Declaration).
As an excuse for plaintiffs’ delay in filing the Motion, the Wards state that they “were
awaiting the result of an appeal that was untimely based on jurisdictional not substantive
grounds.” ECF 107-1 at 2. However, this does not explain the Wards’ failure to raise the
contention during the pendency of the summary judgment motion.
In any event, even if the Motion had been filed within a reasonable time, the arguments
advanced in the Motion lack merit.
Both Powers and Schwiers provided information in their
declarations based on a review of BB&Ts records and the knowledge that they had acquired
through their employment with BB&T. See ECF 89-2 at 2-6; ECF 89-3. The mere explication
of facts or particularized knowledge, acquired through a person’s employment, does not convert
that person’s fact testimony into expert testimony. See, e.g., United States v. Chapman, 209 Fed.
App'x 253, 267 (4th Cir. 2006) (“While the witnesses had particularized knowledge that they
learned through their jobs, that does not convert their lay testimony into impermissible expert
testimony.”); Burlington N. R. Co. v. State of Neb., 802 F.2d 994, 1004–05 (8th Cir. 1986)
(“Personal knowledge or perception acquired through review of records prepared in the ordinary
course of business, or perceptions based on industry experience, is a sufficient foundation for lay
opinion testimony.”). Notably, neither the Powers Declaration nor the Schwiers Declaration
contains opinion evidence. See ECF 89-2 at 2-6; ECF 89-3.
In view of the foregoing, I shall DENY the Motion. An Order follows, consistent with
Date: May 22, 2017
Ellen L. Hollander
United States District Judge
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