Abet Justice L.L.C et al v. America First Credit Union et al

Filing 61

ORDER Denying 53 Motion to Reopen Case. It Is Further Ordered that 57 Motion to Amend/Correct Complaint is Denied as Moot. Signed by Judge Miranda M. Du on 7/7/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ABET JUSTICE, L.L.C. and
GUETATCHEW FIKROU

Case No. 2:13-cv-02082-MMD-PAL

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Plaintiffs,
v.

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AMERICA FIRST CREDIT UNION, et al.,

ORDER
(Pls.’ Motion to Reopen – dkt. no. 53;
Pls.’ Motion to Amend – dkt. no. 57)

Defendants.

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I.

SUMMARY

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The Clerk entered judgment in favor of Defendants on March 6, 2014. (Dkt. no.

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32.) Over a year later, Plaintiffs ABET Justice, L.L.C. (“ABET”) and Guetatchew Fikrou

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filed two motions: Motion to Reopen the Case (dkt. no. 53) and Motion to Amend the

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Complaint (dkt. no. 57). The Court has reviewed Defendants’ responses and joinder (dkt.

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nos. 54, 58, 60) and Plaintiffs’ replies (dkt. nos. 55, 59). For the reasons set forth below,

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both Motions are denied.

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II.

BACKGROUND

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The Court described the facts in greater detail in an earlier Order. (See dkt. no.

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31.) To summarize, Plaintiffs initiated this action in November 2013 after acquiring the

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subject property as a result of a foreclosure on a second deed of trust. They then sought

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relief from an impending trustee’s sale on the first deed of trust.

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On March 6, 2014, the Court dismissed the Complaint for three reasons: failure to

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state a claim; ABET was improperly attempting to proceed without counsel; and

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Plaintiffs lacked standing because they were not parties to transaction that constituted

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the note and first deed of trust. (Dkt. no. 31 at 4-5.) Plaintiffs asked for reconsideration,

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which the Court denied on October 20, 2014. (Dkt. no. 51.)

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On March 18, 2015, more than a year after the Court dismissed the Complaint

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and several months after the Court denied reconsideration, Plaintiffs moved to reopen

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the case. (Dkt. no. 53.) They sought leave to amend six weeks later, on April 29, 2015.

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(Dkt. no. 57.) The Court considers each motion in turn.

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III.

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MOTION TO REOPEN
A.

Legal Standard

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Plaintiffs make their Motion to Reopen (“Motion”) pursuant to Rule 60(b) of the

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Federal Rules of Civil Procedure. (Dkt. no. 53.) Under Rule 60(b), a court may relieve a

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party from a final judgment, order or proceeding only in the following circumstances: (1)

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mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence;

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(3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) any other

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reason justifying relief from the judgment. Backlund v. Barnhart, 778 F.2d 1386, 1388

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(9th Cir. 1985).

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Under Rule 60(b)(2), a party seeking relief on the basis of newly discovered

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evidence must show “the evidence (1) existed at the time of the trial, (2) could not have

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been discovered through due diligence, and (3) was of such magnitude that production

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of it earlier would have been likely to change the disposition of the case.” Jones v.

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Aero/Chem Corp., 921 F.2d 875, 878 (9th Cir. 1990) (internal quotation marks and

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citation omitted). A Rule 60(b)(2) motion must be made “within a reasonable time . . .

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and . . . no more than a year after the entry of the judgment or order or the date of the

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proceeding.” Fed. R. Civ. P. 60(c)(1). A district court lacks jurisdiction over an untimely

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Rule 60(b)(2) motion. Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989).

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On the other hand, “[r]elief under Rule 60(b)(6) must be requested within a

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reasonable time, and is available only under extraordinary circumstances.” Twentieth

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Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981) (citation
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omitted). For a plaintiff “to bring himself within the limited area of Rule 60(b)(6) [he] is

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required to establish the existence of extraordinary circumstances which prevented or

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rendered him unable to prosecute an appeal.” Id. (internal quotation marks and citation

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omitted).

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A Rule 60(b) motion does not affect the finality of a judgment or suspend its

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operation. Fed. R. Civ. P. 60(c)(2); Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978)

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(“[A] motion for relief of judgment under [Rule 60(b)] does not toll the time for appeal or

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affect the finality of the original judgment.”) (per curiam) (citing Browder v. Dir., Dep’t of

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Corr. of Ill,, 434 U.S. 257, 263 (1978)).

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B.

Discussion

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Plaintiffs posit two reasons to support the Motion: (1) there is newly acquired

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evidence and (2) Plaintiffs have secured counsel to represent ABET. (Dkt. no. 53 at 2.)

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However, these reasons are unavailing in light of Plaintiffs’ delay.

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Plaintiffs assert that the general nature of the Complaint was to question the

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validity of the foreclosure through a variety of legal and equitable claims. (Dkt. no 53 at

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4.) Apparently, it has come to the attention of Plaintiffs’ newly retained counsel that

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Defendant America First Credit Union (“AFCU”) failed to provide a certified mailing of the

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Notice of Default, as required by NRS § 107.080. (Id.) Plaintiffs assert that this “newly

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discovered evidence . . . justifies relief [under Rule 60(b)(2)] from the order entered on

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October 20, 2014.” (Id.)

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Plaintiffs fail to note, however, that this Court’s October 2014 Order denied

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Plaintiffs’ earlier Motion for Reconsideration of a March 6, 2014, Order dismissing the

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Complaint. (See dkt. no. 51.) Per Rule 60, the Motion for Reconsideration did not “affect

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the finality of a judgment or suspend[] its operation.” Fed. R. Civ. P. 60(c)(2). Thus,

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Plaintiffs’ request for relief from the October 2014 Order is misplaced; the proper

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judgment from which Plaintiffs could seek relief is the Order issued on March 6, 2014.

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But Plaintiffs cannot ask the Court for relief from the March 2014 Order under Rule

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60(b)(2) — such a motion must be made “within a reasonable time . . . and . . . no more
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than a year after the entry of the judgment or order or the date of the proceeding.” Fed.

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R. Civ. P. 60(c). Here, Plaintiffs raise their motion for relief more than a year after the

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March 6, 2014, Order. Accordingly, the Court must reject Plaintiffs’ motion for want of

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jurisdiction. See Nevitt, 886 F.2d at 1188.

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Even if the Motion were timely, it would still fail because Plaintiffs have not met

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their burden for relief under Rule 60(b)(2). Plaintiffs argue that they did not receive notice

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pursuant to NRS § 107.080, which ensures that a debtor receives notice of a default.

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See NRS § 108.080(3). However, the alleged deficiency in the notice would not cure

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Plaintiffs’ lack of standing. Moreover, from the Complaint, it is clear that Plaintiffs had

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actual notice of the default. (See dkt. no. 1 ¶ 22.) Plaintiffs’ proffered evidence that

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Defendants failed to comply with the exact details prescribed in the statute is unavailing

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because Defendants nevertheless accomplished the purpose of the statute, albeit in a

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different manner. See, e.g., In re Madrid, 10 B.R. 795, 799 (Bankr.. D. Nev. 1981), rev'd

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on other grounds, In re Madrid, 21 B.R. 424 (B.A.P. 9th Cir. 1984) (holding that, because

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the plaintiff had actual notice of default, the issue in regard to the defendant’s failure to

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properly comply with NRS § 107.080 became moot). Hence, the Court would still deny

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Plaintiffs’ Motion even if it were timely because the newly discovered evidence would not

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have changed the outcome of the case. See Jones, 921 F.2d at 878.

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Plaintiffs also request relief under Rule 60(b)(6) because they “had difficulty

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obtaining representation in this matter.” (Dkt. no. 53 at 4.) Yet, without more detail,

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Plaintiffs’

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circumstance[]” necessary to grant relief under Rule 60(b)(6). See Twentieth Century-

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Fox Film Corp., 637 F.2d at 1341; see also Klapprott v. United States, 335 U.S. 601,

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613-14 (1949) (detailing situations that could qualify as “extraordinary,” such as a

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petitioner being unable to properly defend his interest as a consequence of illness,

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poverty, and imprisonment). While the Court notes that Plaintiffs had difficulty obtaining

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representation, Plaintiffs have not demonstrated extraordinary circumstances that

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warrant relief.

assertion

hardly

“establish[es]

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the

existence

of

[an]

extraordinary

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IV.

MOTION TO AMEND

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A court has discretion under Rule 15 to grant a party leave to amend its complaint

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and should freely do so “when justice so requires.” Allen v. City of Beverly Hills, 911 F.2d

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367, 373 (9th Cir. 1990) (quoting Fed. R. Civ. P. 15(a)). But in cases where a court has

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entered a final judgment, “a Rule 15(a) motion may be considered only if the judgment is

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first reopened under Rule 59 or 60.” Lindauer v. Rogers, 91 F.3d 1355, 1356 (9th Cir.

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1996). Thus, despite the liberal nature of a motion to amend, Plaintiffs’ Motion to Amend

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is moot because the Court rejects Plaintiffs’ Motion to Reopen the case.

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V.

CONCLUSION

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It is hereby ordered that Plaintiffs’ Motion to Reopen (dkt. no. 53) is denied.

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It is further ordered that Plaintiffs’ Motion to Amend (dkt. no. 57) is denied as

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moot.
The Court will not entertain any further filings, including another motion for
reconsideration.
ENTERED THIS 7th day of July 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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