Bulmer v. MidFirst Bank
Filing
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Magistrate Judge Kenneth P. Neiman: ORDER entered. MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFF'S MOTION TO ALTER THE JUDGMENT, for the reasons stated, the court DENIES Plaintiff's motion to alter the judgment. See attached memorandum and order for complete details. (Calderon, Melissa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
PAUL BULMER,
Plaintiff
v.
MIDFIRST BANK, FSA,
Defendant
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Civil Action No. 13-30089-KPN
MEMORANDUM AND ORDER WITH REGARD TO
PLAINTIFF’S MOTION TO ALTER THE JUDGMENT
(Document No. 50)
December 31, 2014
NEIMAN, U.S.M.J.
Paul Bulmer (“Plaintiff”) brings this motion to alter -- or, in the alternative, to
reconsider -- the court’s Memorandum and Order, dated November 14, 2014 (Doc. No.
47), in which it granted partial summary judgment in favor of MidFirst Bank, FSA
(“Defendant”), narrowing the factual issues for trial. See Bulmer v. MidFirst Bank, -F.Supp.3d -- , 2014 WL 6070695 (D. Mass. Nov. 14, 2014). Plaintiff seeks this relief
with respect to Counts 1, 5, and 7 only, in conjunction with an opportunity to fully brief
an issue that the court found to be partially dispositive in its summary judgment
decision. For the reasons that follow, the court will deny Plaintiff’s motion.
As a preliminary matter, the court notes that, although Plaintiff brings his motion
pursuant to Fed.R.Civ.P. 59(e) or, in the alternative, 60(b)(1), neither of those rules
address a partial -- as opposed to a final -- judgment, which is merely interlocutory in
nature. See Bishop v. Bell Atlantic Corp., 2001 WL 40910, at *1 (D. Me. Jan. 11, 2001)
(citing Powers v. Nassau Dev. Corp., 753 F.2d 457, 464 (5th Cir. 1985); Wright Miller &
Kane, 10B Federal Practice & Procedure: Civil 3d § 2737 (1998)). Plaintiff appears to
concede as much in his Reply to Defendant’s Opposition to Plaintiff’s Motion to Alter the
Judgment (Doc. No. 55).
That Rules 59(e) and 60(b)(1) happen to be inapplicable does not, however,
preclude Plaintiff from pursuing some of the relief he seeks since a district court retains
authority to modify a partial summary judgment order at any time before the entry of
final judgment. Alberty-Velez v. Corporacion de Puerto Rico Para La Difusion Publica,
361 F.3d 1, 6 n.5 (1st Cir. 2004); see also Fed.R.Civ.P. Rule 54(b) (“[A]ny order or other
decision . . .that adjudicates fewer than all the claims . . . does not end the action as to
any of the claims . . . and may be revised at any time before the entry of a judgment.”)
(emphasis added). In some ways, this is good news for Plaintiff. In contrast with the
stricter requirements of both of the rules he invokes, the “inherent power” of the court “is
not governed by rule or statute and takes root in the court’s equitable power to ‘process
litigation to a just and equitable conclusion.’” Miranda v. Deloitte LLP, 962 F.Supp.2d
379, 382-83 (D. P.R. 2013) (quoting In re Villa Marina Yacht Harbor, Inc., 984 F.2d 546,
548 (1st Cir. 1993)). Accordingly, Plaintiff’s motion for reconsideration, generally put,
“must be tested under the ‘interests of justice’ standard which affords the court wide
discretion.” Dempsey v. National Enquirer, 702 F.Supp. 927, 932 (D. Me. 1998) (citing
Greene v. Union Mut. Life Ins. Co., 764 F.2d 19, 23 (1st Cir. 1985)).
That said, the court is not persuaded that its prior ruling merits reconsideration.
Granted, Plaintiff complains that much of the court’s partial summary judgment
adjudication was predicated on an issue that neither party briefed, namely, whether the
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viability of several of Plaintiff’s claims was cut off by an intervening forbearance
agreement evident in the record. Unfortunately for him, Plaintiff’s argument falls short.
It is true that the legal effect of the forbearance agreement was not formally
briefed by either party. Both, however, had more than ample opportunity to address it.
As a transcript of the August 27, 2014 hearing would reveal, the court raised the
forbearance agreement during Plaintiff’s counsel’s recitation of facts and pressed him
on the issue for several minutes. The issue arose a second time during Defendant’s
counsel’s factual explication. Subsequently, Plaintiff’s counsel raised the issue himself
during his argument, prompting an extensive discussion of the specific language of the
forbearance agreement and its import with respect to Plaintiff’s claims. Finally, just
before the close of argument, the court told counsel in no uncertain terms that it found
the forbearance agreement issue to be potentially dispositive of some of Plaintiff’s
claims. Thus, Plaintiff, through counsel, had several opportunities to discuss the issue,
if not request leave to file a supplemental brief on the matter. Instead, Plaintiff’s counsel
represented his client’s position to be that certain specific language in the forbearance
agreement undercut its relevance to the claims at issue.
On top of that, the court specifically delayed the issuance of a decision on
September 15, 2014 (Electronic Docket Entry No. 43), and again on October 7, 2014
through the end of that month (Electronic Docket Entry No. 45), so as to facilitate a
possible settlement by the parties. At no time during this period did Plaintiff seek to
supplement his argument. It was not until November 14, 2014, that the court granted
summary judgment with respect to Counts 1, 4, 5, 6 and 7, having considered and
rejected Plaintiff’s specific language argument. It then took Plaintiff until December 12,
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2014, at a case management conference designed to set the remaining schedule, to
first alert the court to the fact that he had more to say on the matter.
In the final analysis, Plaintiff’s attempt to revisit the forbearance agreement
comes too late. First, in light of the circumstances just described, Plaintiff’s appeal for
reconsideration is untimely at best; the rules of civil procedure “should be construed and
administered to secure a just, speedy, and inexpensive determination of every action
and proceeding.” Fed.R.Civ.P. Rule 1. Second, and perhaps more importantly, the
court is not at all inclined to permit Plaintiff to reopen an issue that it expressly identified
as potentially dispositive -- and then so found -- especially where Plaintiff has provided
no other reason, e.g., mistake or neglect, for the court to do so.
For the foregoing reasons, the court DENIES Plaintiff’s motion to alter the
judgment.
IT IS SO ORDERED.
DATED: December 31, 2014
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge
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