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)

Download PDF
IN THE UNITED STATES DISTRICT COURl:' FOR THE DISTRICT OF MARYLAND 1 SOli/item Dh';s;oll I: 1'J '1 SEYED MOUSSA VI, et :11., * Plaintiffs, * Case No.: G.IH-15-209-t * ,II' MORGAN CHASE BANK, N.A., et al., * Defendants. * * * * * * * * * 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. * * Plaintiffs were given fourteen days to lile an amended complaint were then granted an extension any additionallilings * OI'INION issued a Memorandum three counts in Plaintimi * * 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 1 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. 2 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. 3 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. 4 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 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?