U.S. Bank National Association v. Viola et al

Filing 27

Opinion & Order signed by Judge James S. Gwin on 1/9/17 denying defendant Anthony L. Viola's motion for reconsideration for the reasons set forth in this order. (Related Doc. 21 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------:
U.S. BANK NATIONAL ASSOCIATION, :
:
Plaintiff,
:
:
vs.
:
:
ANTHONY L. VIOLA, et al.,
:
:
Defendant.
:
:
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CASE NO. 1:16-CV-969

OPINION & ORDER
[Resolving Doc. 21]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
This Court previously dismissed Defendant Anthony Viola’s cross-claim against
Defendant United States and denied Viola’s motions to refer prosecutorial misconduct to the
Office of Professional Responsibility and for leave to amend his cross-claim.1 Viola moves the
Court to reconsider its ruling.2 For the reasons stated below, the Court DENIES Defendant
Viola’s motion to reconsider.
I. Background
In 2011, a federal jury convicted Viola of two counts of conspiracy to commit wire fraud
in violation of 18 U.S.C. § 371 and thirty-three counts of wire fraud in violation of 18 U.S.C. §
1343. The Court sentenced the Defendant to 150 months in prison and ordered him to pay
$2,649,865 in restitution.
In February 2016, U.S. Bank National Association filed a complaint for foreclosure
alleging a breach of Viola’s promissory note and mortgage.3 The complaint named the United
States as a defendant because the United States had filed a Notice of Lien for Fine and/or

1

Doc. 18.
Doc. 21.
3
Doc. 1-1. U.S. Bank filed the complaint in the Cuyahoga County Court of Common Pleas, and the parties removed
the case to this Court on April 22, 2016. Doc. 1.
2

Case No. 16-CV-969
Gwin, J.
Restitution and a Notice of Federal Tax Lien that attached to Viola’s Cleveland Heights
Meadowbrook Boulevard property. Viola answered and included a cross-claim against the
United States seeking contribution for any amounts that the court deemed that he owed Plaintiff
U.S. Bank.4 Viola subsequently moved to refer prosecutorial misconduct to the Office of
Professional Responsibility5 and for leave to amend his answer, counterclaim, and cross-claims.6
On December 1, 2016, this Court dismissed Defendant Viola’s cross-claim against the
United States, denied his motion to refer prosecutorial misconduct, and denied his motion for
leave to amend his pleadings.7
On December 14, 2016, Viola moved the Court to reconsider its December 1 ruling.8
II. Legal Standard
Federal Rule of Civil Procedure 54(b) provides that an order or decision other than a final
judgment “may be revisited at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.”9 Generally, courts find justification for reconsidering
interlocutory orders when there is: “(1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent manifest injustice.”10 A
motion for reconsideration is not available, however, to re-litigate already-decided issues, or to
present a “legal theory or argument [that] could, with due diligence, have been discovered and
offered during the initial consideration of the issue.”11 Likewise, motions for reconsideration “are

4

Doc. 1-2 at 5-6.
Doc. 12.
6
Doc. 13.
7
Doc. 18.
8
Doc. 21.
9
Fed. R. Civ. P. 54(b); see also Rodriguez v. Tennessee Laborers Health & Welfare Fund 89 F. Appx. 949, 959 (6th
Cir. 2004) (recognizing that the Federal Rules of Civil Procedure do not expressly address motions for
reconsideration of interlocutory orders, but nevertheless finding that the district court’s power to reconsider such
orders is supported by both common law and Rule 54(b)).
10
Rodriguez, 89 F. App’x at 959 (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998))
11
McConocha v. Blue Cross & Blue Shield, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996).
5

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Case No. 16-CV-969
Gwin, J.
not substitutes for appeals.”12 Thus, motions to reconsider are “‘extraordinary in nature and,
because they run contrary to notions of finality and repose, should be discouraged.’”13
III. Discussion
Defendant Viola moves the Court to reconsider its previous ruling on two grounds. First,
Viola argues that this Court improperly dismissed his contribution cross-claim against the
government because the government’s lien on the Meadowbrook property is unlawful.14
Specifically, Viola seeks to conduct discovery on the “$1 million difference between the
government’s lien on the 3048 Meadowbrook property and the restitution order.”15 Second,
Viola argues that the Court improperly denied his motion for leave to amend his answer,
counterclaim, and cross-claims because several parties failed to object to his amended
pleadings.16
There is no basis to reconsider this Court’s dismissal of Viola’s cross-claim against the
government. Defendant Viola fails to show any intervening change of controlling law, any newly
available evidence, or the occurrence of clear error or manifest injustice. Given the $2,649,865
restitution order against Viola following his federal criminal case,17 the government properly
asserted a lien on his property. Viola cannot challenge the restitution amount in this foreclosure
proceeding, as that would constitute an improper collateral attack on the criminal judgment.
There is also no basis to reconsider this Court’s denial of Defendant Viola’s motion to
amend his pleadings. Again, no controlling law has changed, no new evidence is available, and

12

Automated Sols. Corp. v. Paragon Data Sys., Inc., No. 1:05 CV 01519, 2011 WL 13076887, at *2 (N.D. Ohio Jan.
13, 2011).
13
McConocha v. Blue Cross & Blue Shield Mut. of Ohio, 930 F. Supp. 1182, 1184 (N.D. Ohio 1996) (quoting In re
August, 1993 Regular Grand Jury, 854 F. Supp. 1403, 1406 (S.D. Ind. 1994)).
14
Doc. 26 at 1.
15
Doc. 21 at 1
16
Id.
17
See Doc. 428 in United States v. Viola, No. 1:08-cr-506 (N.D. Ohio, Restitution Order, filed July 11, 2013).

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Case No. 16-CV-969
Gwin, J.
no clear error or manifest injustice has occurred. Plaintiff U.S. Bank’s failure to object to Viola’s
motion to amend is inapposite. Viola’s proposed amended counterclaim against U.S. Bank
sought to require U.S Bank to give Viola information about other borrowers’ mortgages.18 This
is a discovery request, not a claim for relief. The Court properly denied Viola’s motion to amend
his pleadings.
IV. Conclusion
For the above reasons, the Court DENIES Defendant Viola’s motion for reconsideration.

IT IS SO ORDERED.

Dated: January 9, 2017

18

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Doc. 13-1 at 3-6.

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