Moussavi et al v. JP Morgan Chase Bank N.A. et al

Filing 25

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/6/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURl:'
FOR THE DISTRICT OF MARYLAND
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SOli/item Dh';s;oll

I: 1'J

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SEYED MOUSSA VI, et :11.,

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Plaintiffs,

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Case No.: G.IH-15-209-t

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,II' MORGAN CHASE BANK, N.A.,

et al.,
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Defendants.

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MEMORANDUM
The Court previously

19. 2016. dismissing
dismissed

with prejudice.

Motion for Extension

with a fourth count
and

23. 2016. More than five months passed without

and the Court issued an Order on March 3. 2017. dismissing

of Time to Amend and Replace Counsel.
as Attorney.

likd the presently

pending

ECI' No. 19. Plaintiffs'

counsel

ECI' No. 22. and a Motion to Expedite

ECF No. 24. No hearing is necessary.

Motion for an Extension

I.

without prcjudice.

ECI' No. 18. On March 10. 2017. Plaintiffs

also liled a Motion to Withdraw
of Attorney.

Opinion and Order in this casc on August

Complaint

until September

from Plaintiffs

the case with prejudice.

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Plaintiffs were given fourteen days to lile an amended complaint

were then granted an extension
any additionallilings

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OI'INION

issued a Memorandum

three counts in Plaintimi

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Withdrawal

See Loe. R. 105.6 (D. Md. 2(16). Plaintiffs'

is denied. and the remaining

motions are denied as moot.

BACKGROUND
Plaintiffs

Seyed and Mary Moussavi

al!ainst Defendants.lP
........

originally

liled a lour-count

Complaint

in this Court

Morl!an Chase Bank N.A .. Chase l.oan Servieinl!. and Hudson City
..."'

Savings Bank. alleging i) mortgage fi'aud. ii) common law fraud. iii) violation of the Maryland
Consumer Protection Act. Md. Code. Com. Law
Debt Collection Practices Act. 15 U.S.c.

* 1692

* 13-101
cl seq.

elseq ..

and iv) violation of the Fair

ECF No. I. The Court issued an Opinion

on August 19.2016. dismissing the first three counts without prejudice. and the fi.Hlrthcount with
prejudice. ECI' No. 14. The Court allowed Plaintiffs fourteen days to tile an Amended
Complaint. ECI' No. 15. The parties jointly moved li)[ a three-week extension of time on
September 2.2016. stating that ''It]he parties are discussing a potcntial resolution of this matter:'
and ..[tJhe parties believe the requested extension will facilitate these discussions:'

ECI' No. 16

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at 1. The Court issued a Paperless Order granting the motion and extended the deadline lilr
Plaintiffs to tile an Amended Complaint to September 23.2016. ECF No. 17. Alier more than
five months elapsed without the tiling of an Amended Complaint. an additional request fi)]"
extension of time. or any activity of any kind on the docket. the Court dismissed the case with

,

prejudice on March 3. 2017. ECI' No. 18."

Alier the Court's final order was entered. Plaintif1"sfiled a motion on March 10.2017.
requesting an "extension of time to amend and replace counsel:' Eel' No. 19. Plaintiffs stated
that they had originally sought an extension of time "because it was expected that the parties
would either settle this case or amend the complaint. if settlement negotiations fail:' ECI' No. 19

'12. They

further asserted in their Motion that the purpose of the settlement negotiations were to

obtain a loan modification li'om Defendants. but "despite Moussavi's counsel's numerous eftilrts
to pressure the [Djefendants to be expeditious with their loan modification process because of
litigation. the Defendants took well over 6 months to consider Moussavi fill' a loan

1 Pin cites to documents
tiled on the Court"s electronic filing system (CM/ECF) refer 10 the page numbers generated
bv that $vstC1l1.
l:fhe (\;1lI1"S chambers ~l11ailedthe parties on September 26.2016 and was informed that the parties were still in
settlement negotiations. ECF No. 19 at I. Nothing was filed on the docket howe vcr. <Ind even this exchange.
initiated by the COlin. occurred allcr the filing deadline passed.

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modification."'

It!. ~ 4. Plaintil"l"s now wish to "procced

with the case and replace counsel."

Id. ~

7: see also ECF No. 22: ECF No. 24:' Del"endants oppose the Motion I"or Extension ol"Time.
arguing that time to amend the Complaint

has expired and amendment

would be I"utilc. ECF No.

20.

II.

ANALYSIS
A motion to extend time tiled alier the passing 01" a deadline

by Federal Rule ol"Civil Procedure

would typically

be governed

6(b). But in addition to being filed post-deadline.

Plaintil"l"s'

motion was also tiled post-judgment.
and. ultimately.

Thus. to even entertain

to amend the complaint.

the Court would !irst have to vacate its judgment

pursuant to Fed. R. Civ. P. 59(e) or 60(b). See Calnll)'

I'a.. 710 F.3d 536. 539 (4th Cir. 2013) (addressing
"[Rjeeonsideration
be used sparingly."'l'ac.
(citation omitted).

Plaintifl"s' motion to extend time.

ol"ajudgment

Chris/illll Or.

post-judgment

Ci/)' ofPrederickshllrg.

motion to amend).

after its entry is an extraordinary

remedy which should

111.1'. \'. Alii. Nal"! Fire IllS. Co .. 148 F.3d 396. 403 (4th Cir. 1998).
Co.

Under Rule 59(e). a party may to tile a motion to alter or amend ajudgment

no later than 28 days alier the entry 01" the judgment.

Fed. R. Civ. 1'. 59( e): see alsll Ford \'.

Ulli/ed SllI/es. No. CHI I-I t -3039.2016

WI. 3430673.

may alter or amend an earlier judgment

only .,( I) to accommodate

controlling

I'.

law: (2) to account I"ornew evidence

error of law or preventmanil"est

injustice."

at *1 (D. Md. Mar. t 6.20 t 6). The Court
an intervening

change in

not available at trial: or (3) to correct a clear

Ulli/ed Sia/es ex rei. Becker \'. lVeslillg.hollse

Sl/\"{//1I1ah Rilw Co .. 305 F.3d 284. 290 (4th Cir. 2002) (citing I'a('. 111.1'. .. 148 F.3d at 4(3).
Co
Under Rule 60(b). the Court may relieve a party Irom an adverse judgment

J

il"the party shows (I)

Plaintiffs' counsel. Ms. April Ademiluyi. has moved to \vithdraw her appearance from the action. ECF No. 22. Ms.

Adcmiluyi attests that she has advised her client about discontinuing the representation. and the client has agreed to
hire new counsel. Ill. at I. Ms. Ademiluyi has also tiled a motion to expedite her withdrawal. ECF 1\0. 24.

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mistakc. inadvcrtencc. surprisc. or cxcusablc neglcct: (2) ncwly discovcrcd cvidcnce that. with
rcasonable diligencc. could not have been discovercd in time to movc for a new trial: (3) Ii'aud.
misrcprcsentation. or misconduct by an opposing party: (4) the judgmcnt is void: (5) thc
judgmcnt has becn satisficd. rclcased. or discharged. is no longcr cquitable. or (6) any other
rcason thatjustifics rclief. Fed. R. Civ. 1'. 60(b): SI!I!also Rohil7sol7 \'. Wi" Filtratiol7 Corp. LLC.
599 F.3d 403. 411 (4th Cir. 2010).
Ilowcvcr. thc Fourth Circuit has madc clear that in cascs of rcquests to amcnd thc
complaint. "Itlo determine whethcr vacatur is warranted ... thc court nced not conccrn itsclf
with eithcr of those rules' legal standards. Thc court need only ask whcthcr thc amcndmcnt
should bc grantcd. just as it would on a prejudgment motion to amcnd pursuant to rcd. R. Civ. 1'.
15(a)." Katyll! \'. 1'1!11I1
Nal. Gamil7g. /17c.. 637 F.3d 462. 471 (4th Cir. 2011). Hcrc. had Plaintiffs
filcd their motion for cxtension of time to amend prcjudgmcnt. thc motion would havc bccn
denicd pursuant to Fcdcral Rule ofCivilProccdure

6(b)(1 )(13).

Rulc 6(b)(I) statcs that "when an act mayor must bc donc within a spccilicd time. thc
court may. for good causc. extcnd the timc: ... (13)on motion madc ancr thc time has cxpircd if
the party f~liledto act bccausc ofcxcusablc neglcct." Fcd. R. Civ. 1'. 6(b)( I). Thus. bccausc
Plaintiffs did not lilc thc motion to cxtend timc until aftcr timc expircd. thcy must dcmonstratc
cxcusable ncglect. "Excusable neglect is not casily dcmonstratcd:'

Martil7l!=

1'.

Ul7itl!d Statl!s.

578 r. App'x 192. 194 (4th Cir. 2014). "A party that fnils to act with diligcncc will bc unablc to
cstablish that [its] conduct constitutcd cxcusable ncglcct." Rohinsol7 \.. Wi" Filtratiol7 Corp ..
LLC. 599 F.3d 403. 413 (4th Cir. 2010) (intcrprcting excusablc ncglcct in the contcxt of Fedcral
Rule ofCivilProccdure

60(b)(1 ).4 Indeed. '''[a1 district court should lind cxcusable ncglect only

~ E'\clIsabk neglect has been found to have the same meaning throughout the Federal Rules of Civil. Appellate and
Bankruptcy Procedure. 5:1!1.! ,l!arline=. 578 F.l\pp'x iJt 194.

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in the ex/raordinw:\'

cases where injustice would otherwise result. ... Ward \'. Branch Banking &

Trus/ Co .. No. CV ELH-13-1968. 2016 WL 4492706. at • 5 (D. Md. Aug. 25.2016) (quoting
71101I/p.I"IJIII'.

Tholl/pson).

1':./. Dllpon/ de Nell/ollrs & Co .. 76 F.3d 530. 532 (4th Cir 1996)) (emphasis in
"[AJ mere concession of palpable oversight or administrative tailure generally has

been held to tall short of the necessary showing:' /d.
Ilere. Plaintiffs claim that the l~lilure to amend the complaint was due to on-going but
failed settlement discussions. ECF No. 19 at I. But there is nothing extraordinary about such a
circumstance: and PlaintifTs acknowledge that their excuse. ultimately. is no morc than palpable
oversight or administrative t~lilure. as they concede that "[wle should havc asked the court to stay
the case:' ECF No. 21-1 at 1. In short. tailed settlement discussions do not excuse
noncompliance with the Court's deadlines. considering that Plaintiffs could havc requested
additional extensions of time or a stay of the case. if necessary. but instead. merely allowed the
case to remain dormant for over five months. until the Court SilO .']JolI/e issued its dismissal
order. Therefore. the Court will deny Plaintiffs' Motion.
III.

CONCLUSION
For the foregoing reasons. the Motion tor Extension of Time to Amend and Replace

Counsel. ECF No. 19. is denied. The Motion to Withdraw as Attorney. ECF No. 22. and Motion
to Expedite Withdrawaf of Attorney. ECF No. 24. arc denied as moot. A separate Order shall
Issue.

Date: April

&1-

6.2017

GEORGE J. HAZEL
United States District Judge

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