Schwartz-Tallard v. Americas Servicing Company

Filing 22

ORDER denying 19 Motion to Reconsider. Signed by Chief Judge Gloria M. Navarro on 7/18/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Irene Michelle Schwartz-Tallard,
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Plaintiff,

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vs.
Americas Servicing Company,

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Defendant.

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Case No.: 2:12-cv-01383-GMN-VCF
ORDER

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Pending before the Court is the Motion to Reconsider (ECF No. 19) filed by Plaintiff

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Irene Michelle Schwartz-Tallard, who has been represented by counsel throughout the duration

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of this action. Defendant Wells Fargo Bank, N.A., for America’s Servicing Company, has filed

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an opposition (ECF No. 20), and Plaintiff filed a Reply (ECF No. 21).

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I.

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BACKGROUND
In March 2012, Plaintiff originally filed her Complaint in state court, naming “Americas

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Servicing Company” as Defendant. (Ex. A to Notice of Removal, ECF No. 1-1.) Wells Fargo

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Bank, N.A., received service in July 2012, and timely removed the action as Defendant, with

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the explanation that “America’s Servicing Company is a trade name for Wells Fargo Home

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Mortgage, a division of Wells Fargo Bank, N.A.” (Notice of Removal, 1:28 n.1, ECF No. 1.)

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Beginning in August 2012, Defendant filed successive stipulations on behalf of itself

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and Plaintiff to extend the time in which Defendant must answer, which the Court granted,

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extending the deadline to November 7, 2012. (ECF Nos. 5, 10, 13.) Defendant did not file an

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answer within this time, and Plaintiff did not seek entry of default for Defendant’s failure to file

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a timely responsive pleading. On May 24, 2013, Defendant filed a Motion to Dismiss (ECF

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No. 14), and Plaintiff filed no opposition. Over six months later, Plaintiff had not taken any

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action whatsoever in the case. Therefore, on December 5, 2013, the Court granted the motion

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to dismiss the case (ECF No. 17), and the Clerk entered Judgment accordingly (ECF No. 18).

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A week later, Plaintiff filed the instant motion, requesting that the Court reopen the case

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and permit her to amend her Complaint to add new allegations. (ECF No. 19.)

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II.

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DISCUSSION
Rule 60 of the Federal Rules of Civil Procedure provides a standard by which the Court

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might reconsider its Order. This rule, governing relief from a judgment or order, provides in

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part:

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(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On

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motion and just terms, the court may relieve a party or its legal representative from

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a final judgment, order, or proceeding for the following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not have

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been discovered in time to move for a new trial under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,

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or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it is based on an

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earlier judgment that has been reversed or vacated; or applying it prospectively

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is no longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). The Ninth Circuit has distilled the grounds for reconsideration into three

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primary categories: (1) newly discovered evidence; (2) the need to correct clear error or prevent

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manifest injustice; and (3) an intervening change in controlling law. School Dist. No. 1J v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

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For the reasons discussed by the Court in its previous Order (ECF No. 17) and by

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Defendant in its Response (ECF No. 20), the Court finds no grounds for reconsideration of its

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Order dismissing the action.

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The additional allegations that Plaintiff describes provide no grounds to reopen this

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closed case, and do not show a basis for the Court to find that Plaintiff may succeed on the

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merits. Furthermore, Plaintiff’s litigation history in this case demonstrates a likelihood of

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dilatory motive, and contradicts any argument that reconsideration is necessary to “prevent

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manifest injustice.”

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As discussed by the Court previously, Plaintiff brought the lawsuit in March 2012, failed

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to properly serve Defendant for months, and failed to take any dispositive action after the

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Complaint was filed for over a year. Plaintiff failed to seek entry of default upon the untimely

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filing of Defendant’s answering pleading, and failed to oppose the motions filed by Defendant.

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At all time, Plaintiff was represented by counsel, and throughout the litigation, Plaintiff

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provided no indication that she intends to seek a full determination on the merits. Furthermore,

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Plaintiff has never presented evidence showing any likelihood of success on the merits of her

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claims. For these reasons, the Court found no cause to dismiss the case without prejudice, and

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here finds no cause to reconsider its Order and Judgment.

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III.

CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 19) is DENIED.

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DATED this18thday of July, 2014.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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