Macias v. Ocwen Loan Servicing LLC et al
ORDER AND OPINION re: 45 MOTION to Vacate Decision and Order Dismissing the Case. filed by Robert Macias. The Court denies Plaintiff's motion to vacate, and does not reach the question of the PSAC's futility. The Clerk of Court is instructed to terminate Docket Entry 45. (Signed by Judge Valerie E. Caproni on 4/10/2018) (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OCWEN LOAN SERVICING LLC; DEUTSCHE :
BANK NATIONAL TRUST COMPANY as
Trustee for DSLA Mortgage Loan Trust 2007:
AR1; and DOES 1 THROUGH 100 INCLUSIVE, :
ORDER AND OPINION
VALERIE CAPRONI, United States District Judge:
On January 23, 2018, the Court dismissed Plaintiff’s case after Plaintiff failed to seek
leave to amend his First Amended Complaint (“FAC”). Six weeks later, on March 7, 2018,
Plaintiff moved to vacate the dismissal. For the reasons discussed below, Plaintiff’s motion is
The relevant procedural history is as follows: the Second Circuit affirmed this Court’s
dismissal of Plaintiff’s claims, but remanded the case for failing to address Plaintiff’s request
seeking leave to amend. See Second Circuit Order, December 5, 2017 [Dkt. 39]; Second Circuit
Mandate, December 27, 2017 [Dkt. 40]. On December 29, 2017, the Court ordered Plaintiff to
file a motion seeking leave to amend by January 19, 2018, which was to include a copy of the
Proposed Second Amended Complaint (“PSAC”) and a red-line comparison of the PSAC to its
predecessor. Order, December 29, 2017 [Dkt. 41]. No such motion having been filed, on
January 23, 2018, the Court dismissed the case. Order, January 23, 2018 [Dkt. 42]. Some time
after the dismissal, Defendants scheduled a foreclosure sale of the property at issue for April 16,
2018. See Affirmation of Brian Pantaleo, Esq. (“Pantaleo Aff.”) [Dkt. 50-1] ¶ 5.
On March 7, 2018, Plaintiff moved to vacate the order dismissing the case. See
Plaintiff’s Motion to Vacate (“Vacate Mot.”) [Dkt. 45]. Plaintiff asserts that his prior counsel,
Subhan Tariq, never received the Court’s December 29, 2017 Order; Tariq himself, through an
Affirmation, asserts that, although he did not receive notification of the December 29, 2017
Order, he did receive notification that the action had been dismissed on January 23, 2018.
Declaration of Steven Rabitz (“Rabitz Decl.”) [Dkt. 451] ¶ 10; Affirmation of Subhan Tariq
(“Tariq Aff.”) [Dkt. 45-2] ¶¶ 2, 4.2 Plaintiff’s Motion attaches a PSAC, but it does not include a
red-line comparison as ordered. See PSAC [Dkt. 45-1].
Defendants oppose vacatur, arguing that Plaintiff’s failure to timely file his PSAC is not
excusable and that the PSAC does not cure the deficiencies identified by the Court. See
Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion to Vacate Dismissal With
Prejudice (“Opp.”) [Dkt. 50]. Defendants challenge Tariq’s statement that he never received the
Court’s December 29, 2017 Order, attaching a copy of the notification email that indicates it was
delivered to four different email addresses associated with Tariq. See Opp. at 8; Pantaleo Aff.
Ex. A. [Dkt. 50-2]. Defendants also note that Plaintiff’s “new” counsel Rabitz had made filings
and been involved in the case since as early as March 2017 but did not file a Notice of
Appearance —which would have enabled him to receive ECF notifications—until February 27,
2018. Opp. at 3–5, 8 (citations omitted). Defendants argue that, even if Plaintiff’s counsel did
not learn about the prospect of dismissal until January, it is inexcusable that they made no effort
to contact the Court for six weeks. Id. at 8–9. In the intervening time, Defendants scheduled a
sale of Plaintiff’s property, and they claim that they will incur significant costs if they have to
Rabitz did not file his Declaration as a separate document or exhibit, so it bears the same Docket Number
as the Motion.
The Tariq Aff. does not contain a ¶ 3; the Court refers to the numbering in the document. See Tariq Aff.
cancel the sale. Id. at 9. Defendants also assert that Plaintiff’s proposed amendments would be
futile. Id. at 9–24.
Federal Rule of Civil Procedure 60(b)(1) allows a court to relieve a party from a final
judgment on the basis of mistake, inadvertence, surprise, or excusable neglect. See Fed. R. Civ.
P. 60(b)(1). “The term ‘excusable neglect’ is understood to encompass situations in which the
failure to comply with a filing deadline is attributable to negligence.” Dixon v. A Better Way
Wholesale Autos, Inc., 692 F. App’x 664, 664 (2d Cir. 2017) (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 394 (1993) (internal quotation marks omitted).
When assessing excusable neglect, courts consider “(1) the danger of prejudice to the [nonmovant], (2) the length of the delay and its potential impact on judicial proceedings, (3) the
reason for the delay, including whether it was within the reasonable control of the movant, and
(4) whether the movant acted in good faith.” Padilla v. Maersk Line, Ltd., 721 F.3d 77, 83 (2d
Cir. 2013) (citation and internal quotation marks omitted). The Second Circuit “focuses closely
on the third  factor: the reason for the delay, including whether it was within the reasonable
control of the movant.” Id. (citation omitted). “[C]ourts are generally reluctant to recognize
attorney error as a basis for relief from an order or judgment [and] failure to follow the clear
dictates of a court rule will generally not constitute . . . excusable neglect.” Dixon, 692 F. App’x
at 665 (quoting Gomez v. City of N.Y., 805 F.3d 419, 423 (2d Cir. 2015); Canfield v. Van Atta
Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997)) (internal quotation marks omitted).
The Court finds that Plaintiff did not act with excusable neglect. Even if the Court
credits Tariq’s claim that he did not receive the Court’s December 29, 2017 Order—which the
Court highly doubts—Plaintiff’s counsel inexcusably failed to act for six weeks upon learning
that the Court had dismissed the case, and Plaintiff has offered no explanation for that delay. A
careful and competent attorney would have followed the case and sought to amend Plaintiff’s
FAC as soon as the Second Circuit decided the case on December 5, 2017. Plaintiff’s
inexcusable delay plainly prejudices Defendants, who have scheduled the property for sale in
less than a week’s time. Plaintiff also failed to follow the Court’s order to file a red-line
comparison illustrating the changes between the PSAC and its predecessor. Accordingly, the
Court denies Plaintiff’s motion to vacate, and does not reach the question of the PSAC’s futility.
The Clerk of Court is instructed to terminate Docket Entry 45.
United States District Judge
Date: April 10, 2018
New York, New York
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