Emmons v. Bank of America, N.A. et al

Filing 51

ORDER - The Court GRANTS Bank of America's Motion to Withdraw its Motion for Default Judgment 45 and ORDERS that defendants' Motion for Default Judgment 37 be STRICKEN FROM THE RECORD. The Court DENIES Charles Emmons' Motion to Set Aside Dismissal of First Amended Petition 41 , and GRANTS Judith A. Kuhlman's Motion for Leave to File Answer Out of Time 43 . Third-Party Defendant Kuhlman shall file a response to Bank of America's Third-Party petition on or befor e 2/17/15. Parties to file proposed dates for an Amended Scheduling and Trial Order on or before 2/17/15 and shall file a joint status report regarding the current status of the case on or before 3/16/15. Signed on 2/9/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CHARLES EMMONS,
Plaintiff,
v.

BANK OF AMERICA, N.A.,
PRLAP, INC., and OCWEN FINANCIAL
CORPORATION,
Defendants.

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NO. 13-CV-1055-FJG

ORDER
Currently pending before the Court is defendant Bank of America, N.A.’s
(“BANA”) and Ocwen Financial Corporation’s (“Ocwen”) Motion for Default Judgment
(Doc. # 37), Charles Emmons’ Motion to Set Aside Dismissal of First Amended Petition
(Doc. # 41), Judith A. Kuhlman’s Motion for Leave to File Answer Out of Time and in
Opposition to Motion for Default Judgment (Doc. # 43) and Bank of America’s Motion to
Withdraw its Motion for Default Judgment (Doc. # 45).
I.

BACKGROUND

On June 7, 2013, plaintiff proceeding pro se, filed a “Petition to Remove Lien” in the
Clay County District Court. Plaintiff states in his petition that “pursuant to Missouri
Statute 428.120 plaintiff petitions Clay County District Court to direct the lien claimants,
ex parte, to appear before the court within ten business days following the date of
service of the petition and order on the lien claimant, and show cause, if any, why the
claim of lien should not be declared void and other relief provided by section 428.125

should not be granted.”
Plaintiff alleges that Judith Kuhlman and her deceased husband (Paul W. Kuhlman)
owned the subject property. Plaintiff states that on May 1, 2013, he contacted Judith
Kuhlman about the property located at 3000 N.E. 76th Street, Gladstone, Missouri.
Plaintiff states he agreed to make all necessary repairs to the property in exchange for
equity in the property. Plaintiff states that a search of county records revealed that there
were three liens filed against the property. One was from Bank of America titled “Deed
of Trust,” dated 12/4/2007 and filed 2/27/2008. It stated that “[t]he lien [on] this Deed of
Trust shall not exceed at any one time $165,243.12.” The two other liens were tax
liens. Plaintiff states that he agreed to take a Quitclaim Deed to the property and
assume any and all responsibility for liens on the property, finish repairs at his own
expense and assist Judith Kuhlman in other matters. Plaintiff states that he and Mrs.
Kuhlman believe that her deceased spouse, Paul Kuhlman, intended the mortgage to
be in Mr. Kuhlman’s name only. Plaintiff asserts that Mrs. Kuhlman believes that her
signature on the Deed of Trust “appears forged.” Plaintiff alleges that Judith Kuhlman
quitclaimed her interests in the property to him on June 1, 2013 and he filed the
quitclaim with the Clay County Recorder of Deeds on June 3, 2013. Defendants
removed the case to federal court on October 28, 2013. On February 20, 2014, the
Court granted the parties’ Joint Motion for a sixty day stay of proceedings in the case.
On April 10, 2014, the parties filed a Joint Status Report indicating that they were not
able to resolve the case and in order to fully resolve the case, they needed to add the
borrower as a party to the case. On May 5, 2014 Bank of America filed a counterclaim
against plaintiff Charles Emmons and a third-party complaint against Judith Kuhlman

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and other entities. Plaintiff filed a First Amended Complaint on June 19, 2014. On July
7, 2014, Bank of America filed a Motion to Dismiss for Failure to State a Claim. Plaintiff
failed to respond within the time allowed and on August 12, 2014 the Court issued an
order to show cause to plaintiff why the matter should not be dismissed. On September
3, 2014, the Court dismissed plaintiff’s Complaint without prejudice for failure to
prosecute and failure to respond to the Order to Show Cause. On September 23, 2014,
Bank of America filed a Motion for Default Judgment against Judith Kuhlman as to the
third-party petition. On October 1, 2014, plaintiff filed a motion to set aside the
dismissal of the First Amended Petition. On October 10, 2014, counsel for defendant
Judith Kuhlman filed a Motion for Leave to File her Answer Out of Time. On October 15,
2014, Third-Party Plaintiff Bank of America filed a Motion to Withdraw its Motion for
Default Judgment against defendant Kuhlman. On October 16, 2014, Third-Party
Plaintiff Bank of America filed a response indicating that it had no opposition to
defendant Kuhlman’s Motion for Leave to File Her Answer Out of Time. On January
26, 2015, the parties filed a Joint Status Report and a Motion to Extend Discovery
Deadlines.
II.

DISCUSSION

A. Motion for Default Judgment/Motion to Withdraw
Third-party plaintiff Bank of America initially filed a Motion for Default Judgment
against third-party defendant Judith Kuhlman on September 23, 2014. However, due to
on-going efforts to resolve this case, Bank of America has now moved to withdraw its
Motion for Default Judgment. Accordingly, the Court hereby GRANTS Bank of
America’s Motion to Withdraw its Motion for Default Judgment (Doc. # 45). The Court

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hereby ORDERS that Bank of America’s Motion for Default Judgment (Doc. # 37) be
STRICKEN from the record.
B. Motion for Leave to File Answer Out of Time
On May 5, 2014, Bank of America filed a Counterclaim and Third-Party Petition.
The Third-Party Petition asserted four claims against Judith Kuhlman: Reformation of
Instruments for Mutual Mistake, Quiet Title, Judicial Foreclosure pursuant to
Mo.Rev.Stat §443.190 and Breach of Contract. Ms. Kuhlman was served with the thirdparty petition on May 18, 2014. Due to confusion on her part, Ms. Kuhlman states that
she believed that her interests were being protected by the claims and defense of
Charles Emmons. Ms. Kuhlman states that her actions in not filing an Answer were due
to inadvertence, mistake and excusable neglect. Third-party plaintiff Bank of America
filed a response indicating that it had no opposition to the Motion for Leave to File An
Answer Out of Time. Accordingly, for good cause shown and with no opposition
indicated, the Court hereby GRANTS Third-Party Defendant Kuhlman’s Motion for
Leave to File An Answer Out of Time (Doc # 43). Third-Party Defendant Kuhlman shall
file a response to Bank of America’s Third-Party petition on or before February 17,
2015.
C. Emmons’ Motion to Set Aside Dismissal of First Amended Petition
On June 19, 2014, plaintiff, Charles Emmons, filed a First Amended Petition to
Remove Lien and Quiet Title and in the Alternative for Compensation Quantum Meruit
(Doc. # 27). On July 7, 2014, Bank of America and Ocwen Financial Corporation filed a
Motion to Dismiss for Failure to State a Claim. Plaintiff’s response to the Motion to
Dismiss was due on or before July 24, 2014. On August 12, 2014, the Court issued an

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Order directing plaintiff to show cause on or before August 20, 2014, why the First
Amended Petition should not be dismissed for failure to prosecute. On September 3,
2014, the Court dismissed plaintiff’s First Amended Complaint without prejudice for
failure to respond to the Motion to Dismiss or the Order to Show Cause. On October 1,
2014, plaintiff filed a Motion Seeking to Set Aside the Dismissal of the First Amended
Petition.
In the motion, plaintiff’s counsel, William Quitmeier, states that “[w]hen this case
was being asked to be removed to Federal Court [plaintiff] asked William M. Quitmeier
to enter his appearance for the pro se Plaintiff. William M. Quitmeier advised the
Plaintiff that he was unfamiliar with Federal Court procedures, but would assist him to
object to the removal.” (Motion to Set Aside Dismissal, ¶ 2). Plaintiff’s counsel also
states: “[a]ny failure of Plaintiff to respond to orders to show cause was not intentional,
but under the mistaken belief that while the matter was in serious settlement talks
prompted by Court ordered mediation, the Defendant Bank of America and Plaintiff
were jointly keeping the court apprised of the progress of the case and settlement
negotiations. Plaintiff and Defendant Bank of America felt the court was being kept
advised.” (Motion, ¶ 9). Finally, plaintiff’s counsel states that “[i]f the Plaintiff missed an
electronically filed order to show cause, then this was inadvertent in an era of transition
to paperless document production in the court systems. The remedy of dismissal under
these circumstances is excessively harsh because many of us continue in a learning
process regarding this evolution.” (Motion, ¶ 11).
In opposition, defendants argue that plaintiff has not demonstrated mistake,
inadvertence or excusable neglect as required under Fed.R.Civ.P. 60(b). Fed.R.Civ.P.

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60(b) states in part:
(b) On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect . . .
In In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, 496 F.3d
863 (8th Cir. 2007), the court stated:
In assessing whether conduct is excusable, several factors must be taken
into account, including: (1) the danger of prejudice to the non-moving
party; (2) the length of the delay and its potential impact on judicial
proceedings; (3) whether the movant acted in good faith; and (4) the
reason for the delay, including whether it was within the reasonable
control of the movant. Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd.
P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). These
four Pioneer factors do not carry equal weight; the reason for delay is a
key factor in the analysis. Lowry v. McDonnell Douglas Corp., 211 F.3d
457, 463 (8th Cir. 2000).
Id. at 866-67. The Court in U.S. Commodity Futures Trading Com’n. v. Arrington, 998
F.Supp.2d 847 (D.Neb. Jan. 28, 2014), stated, “[t]he Eighth Circuit has held that
professional carelessness does not warrant relief under Rule 60(b).” Id. at 882.
In the instant case, plaintiff’s counsel states that he was unfamiliar with Federal
court procedures and believed that because the parties were participating in settlement
discussions, the Court was being kept apprised of their progress. However,
unfamiliarity with the federal rules or local court rules does not qualify as “excusable
neglect.” In Ceridian Corp. v. SCSC Corp., 212 F.3d 398 (8th Cir. 2000), the Court
noted:
[s]oon after Pioneer, it was established [in the Eleventh Circuit] that
attorney error based on a misunderstanding of the law was an insufficient
basis for excusing a failure to comply with a deadline. And, no circuit that
has considered the issue after Pioneer has held that an attorney’s failure
to grasp the relevant procedural law is “excusable neglect.”
Id. at 404 (quoting Advanced Estimating Sys., Inc. v. Riney, 130 F.3d 996, 998 (11th
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Cir.1997)). The mediator in this case was designated on May 12, 2014 (Doc. # 22). In
the pleading designating the mediator, the parties stated that the mediation was
scheduled to take place on August 7, 2014. The mediation was not successful in
resolving the case. On August 12, 2014, the Court issued an Order directing plaintiff to
show cause why the matter should not be dismissed for failure to prosecute. Even if
plaintiff’s counsel believed that the parties did not have to respond to motions while they
were engaged in active settlement discussions, he should have been on notice that a
response was due after the unsuccessful mediation and the Court issued its Order to
Show Cause setting a deadline for the response. The Court does not find that this
qualifies as excusable neglect.
The second reason that plaintiff’s counsel offers as a reason for setting aside the
dismissal is because this is an “era of transition to paperless document production in the
court systems . . .many of us continue in a learning process regarding this evolution.”
The Court would note that the General Order authorizing Electronic Filing Procedures
was issued by this Court on September 20, 2004, over ten years ago. This Order is
available on the Court’s website. Additionally, step-by-step instructions on how to
electronically file documents are also listed on the Court’s website. The Court would
also note that plaintiff’s counsel was able to successfully file documents and respond to
motions via the Court’s CM/ECF system well before the Order to Show Cause was
issued. If plaintiff’s counsel were truly having difficulty navigating the CM/ECF filing
system, he could have contacted the Court for assistance.
In analyzing the Pioneer factors, the Court finds that if it were to grant the Motion
to Set Aside the Dismissal, the defendants would be prejudiced. They have actively

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litigated this action and are entitled to rely upon final orders of the court. Granting the
motion to set aside the dismissal would also delay resolution of this case. The Court
would also note that plaintiff will not suffer undue prejudice, as defendants’ counterclaim
contains a quiet title claim against plaintiff. Thus, plaintiff can assert his claims and
defenses regarding the quiet title claim, just as he would have in his Amended
Complaint. The length of delay also weighs in favor of denying the motion. Plaintiff’s
counsel filed the Motion to Set Aside the Dismissal almost a month after the Court
dismissed plaintiff’s case. The Court does not find that plaintiff’s counsel acted in good
faith nor did he provide any good reasons for failing to respond to the Order to Show
Cause. Accordingly, because the Court finds that plaintiff’s counsel has failed to
demonstrate excusable neglect, the Court hereby DENIES plaintiff’s Motion to Set Aside
the Dismissal of First Amended Complaint (Doc. # 41).
D. Amended Scheduling Order
In the Joint Status Report filed with the Court on January 26, 2015, the parties
state that after the Court has ruled on the pending motions, they would like to file
proposed dates for an Amended Scheduling Order so that they may have additional
time to continue to work towards a possible resolution of this matter. Accordingly, the
Court hereby ORDERS the parties to file proposed dates for an Amended Scheduling
and Trial Order on or before February 17, 2015. The parties shall file a joint status
report regarding the current status of the case on or before March 16, 2015.
III.

CONCLUSION

For the reasons stated above, the Court hereby GRANTS Bank of America’s
Motion to Withdraw its Motion for Default Judgment (Doc. # 45) and ORDERS that

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defendants’ Motion for Default Judgment (Doc. # 37) be STRICKEN FROM THE
RECORD. The Court DENIES Charles Emmons’ Motion to Set Aside Dismissal of
First Amended Petition (Doc. # 41), and GRANTS Judith A. Kuhlman’s Motion for
Leave to File Answer Out of Time (Doc. # 43).

Date: February 9, 2015
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge 

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