Gryglak v. HSBC Bank USA, N.A., et al

Filing 135

ORDER Denying 130 Motion for Reconsideration. Signed by Judge James C. Mahan on 9/10/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:17-cv-01514-JCM-NJK Document 135 Filed 09/10/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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EDYTA GRYGLAK,

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Case No. 2:17-CV-1514 JCM (NJK)
Plaintiff(s),

ORDER

v.
HSBC BANK USA, N.A., et al.,

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Defendant(s).

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Presently before the court is plaintiff Edyta Gryglak’s motion to reconsider this court’s

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order and judgment executing bond. (ECF No. 130). Defendants HSBC Bank USA, N.A., as

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trustee for Wells Fargo Home Equity Asset-Backed Certificates, Series 2006-3, by its Attorney-

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in-fact Wells Fargo Bank, N.A.; Wells Fargo Bank, N.A.; and Wells Fargo Asset Securities

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Corporation’s (collectively, “Wells Fargo”) responded. (ECF No. 131). Plaintiff replied. (ECF

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No. 132).

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On July 6, 2020, this court granted defendants’ motion to execute the appeal bond. (ECF
No. 127). Plaintiff now moves this court to reconsider pursuant to Rule 59(e). (ECF No. 130).

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Rule 59(e) “offers an extraordinary remedy, to be used sparingly in the interests of finality

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and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)

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(internal quotations omitted). Reconsideration “is appropriate if the district court (1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A Rule 59(e) motion may not be used to raise arguments

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or present evidence for the first time when they could reasonably have been raised in the earlier

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litigation.” Id. (citing Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 887, 890 (9th Cir.2000)).

James C. Mahan
U.S. District Judge

Case 2:17-cv-01514-JCM-NJK Document 135 Filed 09/10/20 Page 2 of 3

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Plaintiff presents no new facts or law. (ECF Nos. 130, 132). Plaintiff instead contends

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that this court committed clear error when it: 1) “prematurely” found that defendants were

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wrongfully enjoined, and 2) found that “[t]he damages stated by Wells Fargo are not simply those

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that will be recovered on foreclosure.” (ECF No. 130). This court disagrees.

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Plaintiff argues that this court clearly erred by failing to address her argument that bond is

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premature. (Id.). Clear error requires a “definite and firm conviction that a mistake has been

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committed.” S.E.C. v. Rubera, 350 F.3d 1084, 1093 (9th Cir. 2003) (citing Easley v.

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Cromartie, 532 U.S. 234, 242 (2001)). In support of her position, plaintiff regurgitates prior

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argument which this court considered and found meritless. (ECF No. 130). Plaintiff states that

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“[a] determination that a defendant was wrongfully enjoined cannot be made until after final

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judgment on the merits and any appeals have been resolved,” (id.), citing cases in the context of

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a bond posted due to preliminary injunctions that existed up until final judgment. See, e.g.,

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Nintendo of Am., Inc. v. Lewis Galoob Toys, Inc., 16 F.3d 1032, 1036 (9th Cir. 1994); Gametech

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Int’l, Inc. v. Trend Gaming Sys., LLC, No. CV-01-540-PHX-LOA, 2005 WL 1473982, at *2 (D.

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Ariz. June 21, 2005). Here, the bond was posted pending interlocutory appeal.

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The merits of the relevant controversy were reached: The interlocutory appeal concluded

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in defendant’s favor thus lifting the stay. (ECF Nos. 107, 108). Again, “a party has been

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wrongfully enjoined within the meaning of Rule 65(c) when it turns out the party enjoined had the

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right all along to do what it was enjoined from doing.” Nintendo., 16 F.3d at 1036. Defendants

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would have conducted their foreclosure sale if not for plaintiff’s appeal. (ECF No. 111). The only

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remaining claim before this court is unrelated to defendants’ right to foreclose, and only entitles

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plaintiff to money damages, not a prevention of the sale. (ECF Nos. 1, 125). The same goes for

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the claims which this court dismissed; the complaint does not request an injunction of the

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foreclosure sale. (ECF No. 1). This court stated all the above in its prior order. (ECF No. 127).

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This reasoning addresses why this court’s determination was not premature.

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As to plaintiff’s second claim of error, plaintiff states that this court clearly erred by stating

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that “[t]he damages stated by Wells Fargo are not simply those that will be recovered on

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foreclosure nor are they expenses incurred in litigating this matter.” (ECF No. 130). This notion

James C. Mahan
U.S. District Judge

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Case 2:17-cv-01514-JCM-NJK Document 135 Filed 09/10/20 Page 3 of 3

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might possibly amount to clear error if this court had awarded more than the bond amount.

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However, the court did not. This court premised its ultimate disposition on the defendant’s

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calculations. (Id.). Plaintiff wrongly asserts that this court stated as law that: “a delay in

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foreclosure may cause damages to the foreclosing bank where those damages ‘are not simply those

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that will be recovered on foreclosure.’” (ECF No. 130). This court did not make this statement or

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limit itself under such a rule. (ECF No. 127). The order simply described possible damages, and

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separately, refuted plaintiff’s incorrect claim that “‘a delay in a foreclosure sale’ does not cause

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damages to the foreclosing bank as a matter of law.” (Id.). This court explicitly premised its

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decision to award the damages amount on the facts demonstrated by defendant. (Id.).

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This being the third time that plaintiff has unsuccessfully moved this court to reconsider,

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(ECF Nos. 29, 95, 130), the parties are cautioned that “[a] movant who repeats arguments will be

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subject to appropriate sanctions.” Local Rule LR 59-1(b) (“Motions for reconsideration are

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disfavored. A movant must not repeat arguments already presented unless (and only to the extent)

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necessary to explain controlling, intervening law or to argue new facts.”).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion to

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reconsider (ECF No. 130) be, and the same hereby is, DENIED.
DATED September 10, 2020.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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