Hagos et al v. Washington Mutual Bank et al

Filing 31

ORDER Denying 25 Plaintiffs' Motion for District Judge to Reconsider Order. Signed by Judge Kent J. Dawson on 03/05/2013. (Copies have been distributed pursuant to the NEF - AC)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
DANIEL HAGOS, et al.,
12
Plaintiffs,

Case No. 2:12-CV-00587-KJD-GWF

13
v.

ORDER

14
WASHINGTON MUTUAL BANK, et al.,
15
Defendants.
16
17
Before the Court is Plaintiffs’ Motion for Reconsideration (#25). Defendants have filed a
18
response (#26) to the Motion.
19
I. Background
20
On September 20, 2012, the Court granted Defendants’ Motion for Judgment on the
21
Pleadings (#14). The Court noted that this action was the fourth legal proceeding related to
22
foreclosure of the real property located at 6659 Catocin Avenue, Las Vegas, Nevada (“the Property”).
23
The Court also noted that the three previous proceedings were properly dismissed and that Plaintiffs
24
failed to file points and authorities in opposition to the Motion for Judgment on the Pleadings.
25
Accordingly, the Court granted judgment in favor of Defendants.
26

1

II. Discussion

2

A. Legal Standard for Reconsideration

3

Where a ruling has resulted in final judgment or order, a motion for reconsideration may be

4

construed either as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure

5

59(e), or as a motion for relief from judgment pursuant to Rule 60(b). School Dist. No. 1J

6

Multnomah County v. AC & S, Inc., 5 F.3d 1255, 1262 (9th Cir.1993), cert. denied 512 U.S. 1236

7

(1994). Because Plaintiffs filed their Motion within 28 days of the Court’s Order, the Motion is

8

considered under Rule 59(e). However, the standards governing reconsideration are the same under

9

either rule. The Court may grant relief for:

10
11
12
13
14

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.

15
16
17

Fed. R. Civ. P 60(b)
The Ninth Circuit has held that a Rule 59(e) motion for reconsideration should not be granted

18

“absent highly unusual circumstances, unless the district court is presented with newly discovered

19

evidence, committed clear error, or if there is an intervening change in the controlling law.” Marlyn

20

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (quoting 389

21

Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)). A motion for reconsideration must

22

set forth the following: (1) some valid reason why the court should revisit its prior order; and (2)

23

facts or law of a “strongly convincing nature” in support of reversing the prior decision. Frasure v.

24

United States, 256 F.Supp.2d 1180, 1183 (D.Nev.2003). A motion for reconsideration is properly

25

denied when the movant fails to establish any reason justifying relief. Backlund v. Barnhart, 778

26

F.2d 1386, 1388 (9th Cir.1985) (holding that a district court properly denied a motion for
2

1

reconsideration in which the plaintiff presented no arguments that were not already raised in his

2

original motion). “Motions for reconsideration are not the proper vehicles for rehashing old

3

arguments, and are not intended to give an unhappy litigant one additional chance to sway the judge.”

4

Retired Independent Guards Ass’n of Nevada v. Board of Trustees, Independent Guards Ass’n of

5

Nevada-Wackenhut Services, Inc. Pension Trust Fund, 2012 WL 1900938, *1 D.Nev. 2012)

6

(internal quotations and citations omitted).

7

Plaintiffs are representing themselves pro se. Courts must liberally construe the pleadings of

8

pro se parties. See United States v. Eatinger, 902 F.2d 1383, 1385 (9th Cir. 1990). However, “pro se

9

litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of

10

record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986).

11

B. Failure to File an Opposition

12

The Local Rules for the District of Nevada provide that failure to provide points and

13

authorities in opposition to a motion “shall constitute a consent to the granting of the motion.” LR 7-

14

2(d). The Local Rules “no less than the federal rules or acts of Congress, have the force of law.”

15

Corey v. McNamara, 409 F.Supp.2d 1225, 1228 (D.Nev. 2006) (citing United States v. Hvass, 355

16

U.S. 570, 574-575 (1958)). The Ninth Circuit has held that delay caused by failure to adhere to local

17

rules does not constitute excusable neglect. See Watson v. Schwarzenegger, 347 Fed.Appx. 282, 285

18

(9th. Cir. 2009) (no abuse of discretion where district court held that unfamiliarity with local rules

19

did not constitute excusable neglect).

20

Plaintiffs, who have engaged in repeated litigation in relation to the Property, fail to provide

21

any facts or argument offering a valid excuse for their neglect in failing to oppose the Motion for

22

Judgment on the Pleadings. Instead, Plaintiffs beg the question of whether their neglect was

23

excusable by asserting that their “excusable neglect was that [they] failed to file the opposition on

24

time.” The Court will not reconsider its prior orders where Plaintiffs fail to offer any valid basis for

25

their neglect of the Local Rules. See Backlund 778 F.2d 1388. Accordingly, the Court continues to

26
3

1

view Plaintiff’s failure to respond as consent to granting of the Motion for Judgment on the

2

Pleadings and reconsideration is denied.

3

C. Other Basis for Reconsideration

4

Plaintiffs also argue that the Court should set aside its prior Order because their late-filed

5

Opposition to the Motion for Judgment on the Pleadings contains “facts and law ... of a strongly

6

convincing nature.”

7

The Opposition largely regurgitates the allegations of the complaint, without specifically

8

responding to arguments raised in the Motion for Judgment on the Pleadings. Specifically, Plaintiffs

9

fail to address the following arguments made by Defendants: uninvolved entities are named in the

10

Complaint; Plaintiffs cannot recover for wrongful foreclosure because they are in default and no sale

11

has occurred; the fraud claim is defective and inadequately pled; the quiet title claim is invalid; and

12

the claim for declaratory relief is unfounded and cannot survive in the absence if other viable claims.

13

Instead, Plaintiffs’ Opposition merely rehashes discredited arguments attacking the validity of the

14

MERS system, arguing that the note was split from the deed of trust when the loan was pooled, and

15

asserting the inapplicable Uniform Commercial Code as a basis for their “show me the note”

16

argument.

17

The arguments in the late-filed Opposition do not convince the Court to reconsider its prior

18

Order. Even if the Court set aside the prior Order and considered the Opposition, it would still grant

19

the Motion for Judgment on the pleadings because Plaintiffs’ Complaint fails as a matter of law.

20

Accordingly, reconsideration is denied.

21

III. Conclusion

22

IT IS HEREBY ORDERED THAT the Motion for Reconsideration (#25) is DENIED.

23

DATED this 5th day of March 2013.

24
25
26

_____________________________
Kent J. Dawson
United States District Judge
4