Love v. Lew et al

Filing 36

ORDER Granting in Part and Denying in Part Plaintiffs' 35 MOTION for Additional Time to Respond to Government Defendants' 28 MOTION to Dismiss. (Response due by 4:00 p.m. on 10/8/2014). Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAEMON LOVE, et al.,
Plaintiffs,

Case No. 13-14946
Hon. Matthew F. Leitman

v.
JACOB J. LEW, et al.,
Defendants.
_________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’
MOTION FOR ADDITIONAL TIME TO RESPOND TO GOVERNMENT
DEFENDANTS’ MOTION TO DISMISS (ECF #35)
Approximately six weeks ago, on August 15, 2014, Defendants Jacob J. Lew
and Shaun Donovan (collectively, the “Federal Government Defendants”) moved
to dismiss the instant action. (See the “Motion to Dismiss,” ECF #28.) Pursuant to
Local Rule 7.1(e)(1)(B), Plaintiffs’ response was due on September 5, 2014.
However, Plaintiffs did not file a timely response. Accordingly, the Court ordered
Plaintiffs to show cause why the Motion to Dismiss should not be granted. (See
ECF #29.) In response, Plaintiffs’ counsel requested that the Court extend the
deadline for them to submit a response. (See ECF #30.) The Court granted
Plaintiffs’ counsel an extension until October 1, 2014. (See ECF #31.)

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Now before the Court is yet another request by Plaintiffs’ counsel for an
extension of time to respond to the Motion to Dismiss. (See the “Motion,” ECF
#35.) In this request, Plaintiffs’ counsel asserts that he “needs to make substantial
revisions to the response that he was planning to file” in light of the Sixth Circuit’s
September 29, 2014, opinion in Rubin v. Fannie Mae, No. 13-1010, slip op. (6th
Cir. Sept. 29, 2014). (Id. at ¶4.) Plaintiffs’ counsel asserts that “some of the issues
raised [in Rubin] overlap some of the issues in this case – specifically ‘overbids’ at
a mortgage foreclosure sheriff’s sale.” (Id. at ¶3.) Accordingly, Plaintiffs’ counsel
seeks an additional 30-day extension “to conduct … needed research.” (Id. at ¶¶56.)
In Rubin, plaintiff Ilanit Rubin (“Rubin”) made two claims against Fannie
Mae relating to the foreclosure of her home, and the Sixth Circuit rejected both.
First, Rubin argued that the foreclosure violated the Due Process Clause of the
Fifth Amendment. See Rubin, slip. op. at 3. The Sixth Circuit affirmed the
dismissal of this claim because Fannie Mae is not a state actor. See id. at 4.
Second, Rubin argued that the winning bid at the foreclosure sale violated M.C.L.
§ 600.3228 because it exceeded the fair market value of the property. See id. at 5.
The Sixth Circuit “decline[d] to address” this claim because “making an otherthan-market-value bid at a sheriff’s sale [does not] constitute[] fraud sufficient to
set aside [a] foreclosure.” Id. at 5-6.
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The Court believes that Rubin is, at best, only tangentially related to the
Federal Government Defendants’ Motion to Dismiss. Indeed, the first issue in
Rubin is inapposite to this action, as there is no dispute in this case as to whether
the Federal Government Defendants are state actors. Further, Rubin’s M.C.L. §
600.3228 claim appears to be only marginally relevant here, as Plaintiffs’ claims
against the Federal Government Defendants involve federal laws and regulations –
not the Michigan state law at issue in Rubin. (See Compl. at ¶¶48-55.)
In addition, to the extent that Rubin is relevant here, Plaintiffs’ counsel’s
assertion that he needs additional time to “attempt to distinguish the case law cited
in Rubin” (Motion at ¶5) is tenuous. Indeed, another defendant in this action,
Wells Fargo Bank, N.A. (“Wells Fargo”), previously cited the two cases on which
Rubin primarily relies,1 and Plaintiffs’ counsel has already responded to those
arguments. (See ECF #18 at 15-16, Pg. ID 192-93; ECF #24 at 10, Pg. ID 306.)
Similarly, on the same day that this Court heard oral arguments on Wells Fargo’s
motion to dismiss this action, Plaintiffs’ counsel argued another case before this
Court in which the defendant relied on the cases cited in Rubin. See Elezaj v. U.S.
Bank, N.A., No. 14-cv-10485 (E.D. Mich. filed Jan. 31, 2014). Simply put, Rubin
does not rely on any new case law with which Plaintiffs’ counsel is not already

1

Bryan v. JPMorgan Chase Bank, 848 N.W.2d 482 (Mich. Ct. Appl. 2014) and
Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355 (6th Cir. 2013).
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familiar.

Accordingly, Plaintiffs’ counsel’s request for a 30-day extension is

excessive, even taking into account his observance of religious holidays.
Moreover, Plaintiffs’ counsel has a pattern of not complying with deadlines
for filing responses to dispositive motions, and this Court has repeatedly
accommodated his (sometimes belated) requests for extensions of time. Indeed,
Plaintiffs’ counsel failed to file a timely response to Wells Fargo’s motion to
dismiss this action, and Plaintiffs’ counsel ultimately responded only after being
specifically ordered to do so by the Court.

(See ECF #19.)

In addition, as

discussed above, Plaintiffs’ counsel has already sought – and the Court has granted
– an extension of time to respond to the Federal Government Defendants’ Motion
to Dismiss, which has been pending for more than six weeks.
For the reasons discussed above, the Court will not grant Plaintiffs’
counsel’s request for a 30-day extension. Nonetheless, the Court will permit a
modest extension of time to allow Plaintiffs’ counsel to review Rubin and to
accommodate Plaintiffs’ counsel’s religious observance. Plaintiffs’ counsel is
advised that the Court will not – under any circumstances – grant him any
additional extensions of time in this action.

Further, Plaintiffs’ counsel is

advised that if he takes advantage of the modest extension of time permitted in this
Order, the Court expects that his response to the Motion to Dismiss will discuss
Rubin and “attempt to distinguish the case law cited” therein. (Motion at ¶5.)
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For the reasons discussed above, Plaintiffs’ Motion is GRANTED IN
PART and DENIED IN PART. IT IS HEREBY ORDERED that Plaintiffs shall
respond to the Motion to Dismiss by 4:00 p.m. on October 8, 2014. IT IS
FURTHER ORDERED that the Federal Government Defendants may reply
within 21 days after Plaintiffs respond.
Plaintiffs’ counsel is again put on notice that any additional failure to
comply with any order of this Court, Local Rule, or Federal Rule of Civil
Procedure will result in dismissal of Plaintiffs’ Complaint (with prejudice, if
appropriate) and monetary sanctions against Plaintiffs’ counsel personally.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: October 1, 2014

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 1, 2014, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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