Galvin et al v. EMC Mortgage Corporation et al
Filing
27
SUMMARY ORDER denying in part and taking under advisement in part 25 Motion to Vacate 22 Order on Motion to Dismiss. Motion is denied insofar as it seeks reconsideration of this court's April 4, 2013 order. Plaintiffs ' request for leave to amend is taken under advisement pending defendants' anticipated objection. Preliminary Pretrial Conference scheduled for May 30, 2013 is continued until further notice. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Mark B. Galvin and Jenny Galvin
v.
Civil No. 12-cv-320-JL
EMC Mortgage Corporation et al.
SUMMARY ORDER
Presently before the court is a “Motion to Vacate Dismissal
and to Amend Complaint” filed by plaintiffs Mark and Jenny
Galvin.
The Galvins’ filing is a response to this court’s order
of April 4, 2013, which dismissed 14 of the 15 counts of their
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief could be granted.
See Galvin v. EMC Mortg. Corp., 2013 DNH 053.
At the outset, it
must be noted that the filing fails to comply with this court’s
Local Rules in at least one key respect.
In contravention of
Local Rule 7.1(a)(1), the Galvins “combine[d] multiple motions
seeking separate and distinct relief”–-vacation of the April 4
order and leave to amend the complaint--“into a single filing.”
This is not the only problem with the filing.
request relief under Rule 60(b).
The Galvins
But Rule 60(b) does not apply
here, because that rule only provides for relief “from a final
judgment, order or proceeding.”
added).
Fed. R. Civ. P. 60(b) (emphasis
As noted, the April 4 order did not dispose of this
action in full, but permitted one of the Galvins’ many claims to
proceed.
For this reason, the order was not “final,” and Rule 60
is inapposite.
See, e.g., Floyd v. City of New York, 813 F.
Supp. 2d 457, 463-64 (S.D.N.Y. 2011)
(order that “did not fully
adjudicate the parties’ claims . . . was not appealable and thus
not final for the purposes of Rule 60(b)); Delta Health Group,
Inc. v. U.S. Dep’t of Health & Human Servs., 459 F. Supp. 2d
1207, 1227 (N.D. Fla. 2006) (similar); Robinson v. Union Pac.
R.R., 98 F. Supp. 2d 1211, 1214 (D. Colo. 2000) (similar).
Instead, Local Rule 7.2(e) governs motions that, like the
Galvins’, ask the court “to reconsider an interlocutory order.”
That rule provides that such a motion “shall be filed within
fourteen (14) days from the date of the order unless the party
seeking reconsideration shows cause for not filing within that
time.”
L.R. 7.2(e).
The Galvins’ request for reconsideration
was filed on May 14, 2013–-over a month after the order in
question–-and the Galvins have provided no explanation for this
unseasonably late filing.
This is reason enough to deny their
request.
It is not, however, the only reason to deny it.
In seeking
reconsideration, the Galvins argue that this court erred in
concluding that the Bank of New York Mellon, which holds the
Galvins’ mortgage by assignment, may foreclose even if it does
not hold the associated promissory note.
2
See Galvin, 2013 DNH
053 at 17-21.
This argument, which spans over ten pages of the
Galvins’ motion, appears to hinge primarily upon the contention
that “the word ‘mortgagee’ in [N.H. Rev. Stat. Ann.] § 479:25
refers to the holder and owner of the mortgage and the note
interests when it comes to standing to non-judicially foreclosure
[sic] a mortgage under the power of sale in the state of New
Hampshire.”
Mot. to Vacate Dismissal & Amend Compl. (document
no. 25) at 7; see also id. at 13-14.
This theory was notably
absent from the Galvins’ opposition to the defendants’ motion to
dismiss, which–-in the course of the less than two pages it
devoted to the Galvins’ claim that Bank of New York Mellon could
not foreclose because it did not hold the note–-did not quote or
even cite § 479:25 or any of the (mostly extrajurisdictional)
authority upon which the Galvins now rely.
See Memo. in Supp. of
Obj. to Mot. to Dismiss (document no. 13) at 2-4.
“A motion for
reconsideration is not a vehicle for the introduction of
arguments that could and should have been made to the district
court earlier.”
Fábrica de Muebles J.J. Álvarez, Inc. v.
Inversiones Mendoza, Inc., 682 F.3d 26, 33 (1st Cir. 2012).1
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The Galvins suggest that the court is somehow at fault for
their failure to advance this unbriefed argument earlier, because
it cautioned the parties that “[n]o new arguments or claims
outside the briefs and pleadings [would] be entertained” at oral
argument. Mot. to Vacate Dismissal & Amend Compl. (document no.
25) at 7 (quoting Order of Feb. 12, 2013). That word of caution
merely recognized the principle, well-recognized in this Circuit,
that “a party has a duty to incorporate all relevant arguments in
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The Galvins’ motion (document no. 25) is accordingly DENIED
insofar as it seeks reconsideration of this court’s April 4, 2013
order.
This ruling–-which the court issues simply to save the
defendants the time and expense of preparing a response to the
Galvins’ request for reconsideration--has no effect on the
Galvins’ request for leave to amend, which is TAKEN UNDER
ADVISEMENT pending the defendants’ anticipated objection.
The
preliminary pretrial conference presently scheduled for May 30,
2013, is continued until further notice.
SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated:
cc:
May 14, 2013
Jamie Ranney, Esq.
Paul J. Alfano, Esq.
Peter G. Callaghan, Esq.
the papers that directly address a pending motion.” Rocafort v.
IBM Corp., 334 F.3d 115, 122 (1st Cir. 2003); see also Galvin,
2013 DNH 053 at 3. That is not an unreasonable expectation of
litigants in general. It is even less unreasonable to expect
that plaintiffs who, like the Galvins, find their complaints
tested by a motion to dismiss will be able to articulate the
legal and factual basis for each of their claims in a timely
opposition memorandum, as they presumably investigated the merits
of those claims before filing suit.
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