Nguyen v. Capital One Bank (USA), N.A. et al

Filing 27

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion to set aside or reconsider the August 21, 2013 order [Doc. # 23 ] is denied.. Signed by District Judge Carol E. Jackson on 10/21/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LAN N. NGUYEN,
Plaintiff,
vs.
CAPITAL ONE BANK (USA), N.A.,
et al.,
Defendants.

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No. 4:13-CV-1140 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion pursuant to Fed.R.Civ.P.
59(e) to alter or amend judgment. Defendants have filed a response in opposition and
the issues are fully briefed.
Defendant Capital One Bank (Capital One) filed a motion to dismiss on June 18,
2013. Defendants Kramer & Frank, P.C. (K&F) and Irwin James Frankel (Frankel) filed
a joint motion to dismiss on July 11, 2013. Plaintiff did not respond to either motion
or request an extension. On August 21, 2013, the Court entered an order determining
that Counts One through Five of plaintiff’s complaint were barred by a one-year statute
of limitations pursuant to § 1692k(d) of the Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. § 1962, et seq. The Court further determined that Count Six of plaintiff’s
complaint failed to state a claim upon which relief could be granted. As a result, the
Court dismissed this action with prejudice. On September 20, 2013, plaintiff filed the
instant motion.
I.

Legal Standard

Federal Rule of Civil Procedure 59(e) was adopted to clarify a district court’s

power to correct its own mistakes in the time period immediately following entry of
judgment. Norman v. Arkansas Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996) (citing
White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445 (1982)). Rule 59(e)
motions serve a limited function of correcting “manifest errors of law or fact or to
present newly discovered evidence.” Innovative Home Health Care, Inc. v. P.T.O.T.
Associates of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (internal quotation
and citations omitted). Such motions cannot be used to introduce new evidence, tender
new legal theories, or raise arguments which could have been offered or raised prior
to entry of judgment. Id. A motion alter or amend judgment under Rule 59(e) must
be made within 28 days from entry of the challenged ruling. See Fed.R.Civ.P. 59(e).
II.

Discussion

Plaintiff asserts that at the time defendants’ motions to dismiss were filed,
plaintiff’s counsel was not licensed by this Court and was unable to file a responsive
pleading or a request for extension. Plaintiff asserts that on August 1, 2013, plaintiff’s
counsel e-mailed counsel for defendant Capital One to request additional time to file
a brief in opposition. Counsel for Capital One did not respond. Plaintiff argues that
because of his counsel’s “excusable neglect,” this Court should set aside its August 21,
2013 order and allow plaintiff to file a responsive pleading or an amended complaint.
Plaintiff’s Rule 59(e) motion is untimely. The Court issued its order dismissing
this action on August 21, 2013. Pursuant to Rule 59(e), plaintiff had 28 days, or until
September 18, 2013, to file a motion to alter or amend judgment. Plaintiff filed his
motion on September 20, 2013. “Where a Rule 59(e) motion is untimely the Court
lacks jurisdiction to consider it” and “the time for filing such a motion may not be

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enlarged by the district court.” Harris v. Potter, Case No. 4:08-CV-1191 (E.D. Mo. Apr.
20, 2009); Keith v. Bobby, 618 F.3d 594, 598-99 (6th Cir. 2010) (The time for filing
a 59(e) motion may not be extended under any circumstances). Furthermore, even if
plaintiff’s Rule 59(e) motion was timely, plaintiff has failed to allege any “manifest
errors of law or fact” or any “newly discovered evidence” that would justify altering or
amending the Court’s order. See Innovative Home Health Care, Inc., 141 F.3d at 1286.
However, because plaintiff’s primary argument in the instant motion is that his
counsel excusably neglected to respond to defendants’ motions to dismiss, the Court
will address whether it is appropriate to set aside the order pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure. Rule 60(b) states, in pertinent part: “On motion
and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable
neglect[.]” “The rule ‘provides extraordinary relief which may be granted only upon
adequate showing of exceptional circumstances.’” Dille v. Renaissance Hotel, Case No.
4:10-cv-1983 (E.D. Mo. Nov. 19, 2012) (citing Jones v. Swanson, 512 F.3d 1045, 1048
(8th Cir. 2008)). “Rule 60(b) motions are viewed with disfavor and are addressed to
the Court’s discretion.” Harris, Case No. 4:08-CV-1191.
“Excusable neglect, necessarily, has two components: (1) neglect or
noncompliance (2) that is excusable.” Gaydos v. Guidant Corp., 496 F.3d 863, 866 (8th
Cir. 2007). “Excusable neglect means good faith and some reasonable basis for
noncompliance with the rules.” Ivy v. Kimbrough, 115 F.3d 550, 552 (8th Cir. 1997)
(internal quotations omitted). Factors to be considered include: “(1) the danger of
prejudice to the non-moving party; (2) the length of the delay and its potential impact

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on judicial proceedings; (3) whether the movant acted in good faith; and (4) the
reason for the delay, including whether it was within the control of the movant.”
Gaydos, 496 F.3d at 866.
Plaintiff contends that his counsel neglected to timely file a brief in opposition
to defendants’ motions to dismiss, but that such neglect was done in good faith “as
demonstrated by his introductory email to defendant’s counsel and his request for
them to agree to an extension of time for him to answer.” [Doc. #23, at 3]. Plaintiff
further argues that the Court should find the neglect excusable because “the reason
for the delay was frankly due to the fact Plaintiff’s counsel needed to secure co-counsel
licensed in this court, the workload of Plaintiff’s counsel and finally the complex nature
of the claims at issue.” [Doc. #23, at 5].
While the failure of plaintiff’s counsel to respond to defendants’ motions to
dismiss qualifies as neglect, the Court does not find this neglect to be excusable, in
good faith, or supported by a reasonable basis. On June 17, 2013, the Clerk of Court
sent plaintiff’s counsel a letter directing him to comply with Local Rule 12, which
requires attorneys to apply for admission prior to practicing before this Court. Plaintiff’s
counsel failed to take appropriate action. Motions to dismiss were filed by defendant
Capital One on June 18, 2013 and by defendants Frankel and K&F on July 11, 2013.
Local Rule 7-4.01(B) instructs that “each party opposing a motion shall file, within
seven (7) days after being served with the motion, a memorandum containing any
relevant argument and citations to authorities on which the parties rely.” Thus, plaintiff
was required to respond to the motions to dismiss on June 25, 2013 and July 18, 2013.
The Court issued its order granting the motions to dismiss on August 21, 2012, which

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was 57 days after a response to Capital One’s motion to dismiss was due, 34 days after
a response to Frankel and K&F’s motion was due, and 65 days after the Clerk of Court
instructed plaintiff’s attorney to apply for admission.
Plaintiff’s argument that he e-mailed defendants’ counsel for an extension of
time to respond is without merit. It is rudimentary knowledge for any practicing
attorney that a party must file a motion with the Court, not with opposing counsel, in
order to seek an extension of time. Furthermore, it is evident from plaintiff’s email to
defendants’ counsel that plaintiff’s counsel believed that there was no deadline for
answering the motions to dismiss. See Pl.’s Email, Doc. #26, Exhibit 1 (“I wanted to
send this short email to . . . ask if you are willing to work with me on an extension of
time (although I don’t believe there’s any strict deadline) to answering your motion to
dismiss in the above captioned case.”). “[A]n attorney’s ignorance or carelessness does
not constitute ‘excusable neglect’ under Rule 60(b)(1).” Ivy v. Kimbrough, 115 F.3d
550, 552 (8th Cir. 1997).
Furthermore, plaintiff’s additional arguments that the delay was due to the
heavy workload of plaintiff’s counsel and the complex nature of the claims in this case
are also without merit. If the Court was to allow every busy attorney handling complex
cases to disregard established deadlines, the Local Rules would serve no purpose.
Accordingly, the Court declines to set aside or reconsider its August 21, 2013 order
dismissing this case with prejudice.
Plaintiff further requests that the Court grant him leave to file an amended
complaint. However, plaintiff failed to attach a proposed amended complaint to his
motion. The Eighth Circuit has held that “granting leave to amend a complaint where

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the plaintiff has not submitted a proposed amendment is inappropriate.” See Popoalii
v. Corr. Med. Servs., 512 F.3d 488 (8th Cir. 2008). Furthermore, Counts I through V
are clearly barred by the FDCPA’s one-year statute of limitations and Count VI is
insufficient to sustain a common law negligence claim and is additionally precluded by
Missouri’s economic loss doctrine. See Nguyen v. Capital One Bank, N.A., et al., Case
No. 4:13-CV-1140 (Mo. E.D. Aug. 21, 2013). While plaintiff asserts that he would
present a tolling theory in his amended complaint, he provides no additional
information for the Court to determine whether such an amendment would be futile.
Accordingly, the Court declines to grant plaintiff’s request to file an amended
complaint.
Finally, in the last sentence of the motion, plaintiff requests that “the Court alter
and amend the Order of the Magistrate Judge that denied Plaintiffs’ Motion to Amend
Scheduling and Discovery Order[.]” [Doc. #23, at 5]. The Court assumes this request
was in error because a magistrate judge has never been involved in this matter and
no scheduling and discovery order has been issued.
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For the above stated reasons,
IT IS HEREBY ORDERED that plaintiff’s motion to set aside or reconsider the
August 21, 2013 order [Doc. #23] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of October, 2013.

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