Reichardt v. BAC Home Loans Servicing, LP et al
Filing
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MEMORANDUM OPINION, ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 26 MOTION for Default Judgment as to filed by Rosa Reichardt, 19 MOTION for Reconsideration re 17 Order Dismissing Case filed by Rosa Reichardt, 21 M OTION for Preliminary Injunction filed by Rosa Reichardt. Plaintiff's Petition for Reconsideration (Dkt. 19) should be GRANTED and the Court's January 31, 2012 Order of Dismissal, Docket Entry 17, should be VACATED and set aside and the ca se should be re-opened on the Court's active docket. As to Plaintiff's Motion for Preliminary Injunction (Dkt. 21), seeking to enjoin certain outcomes of state court eviction proceedings in February and March 2012, the Court finds it should be DENIED. Plaintiff also has recently filed a Motion for No Answer Default (Dkt. 26). That is ordered STRICKEN. Signed by Magistrate Judge Don D. Bush on 6/12/2012. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ROSA REICHARDT
Plaintiff,
v.
BAC HOME LOANS SERVICING, LP,
BANK OF AMERICA, NA and
FANNIE MAE
Defendants.
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CASE NO. 4:11CV478
MEMORANDUM OPINION, ORDER AND REPORT AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
On May 17, 2012 the Court held a hearing in this matter Pro se Plaintiff and counsel for
Defendants appeared and presented argument.
This case was dismissed for want of prosecution on January 31, 2012, after Plaintiff failed
to file a written response to Defendant’s motion to dismiss and after Plaintiff failed to act in response
to the Court’s notice of impending dismissal. See Dkt. 17. Prior to dismissal, Court correspondence
sent to Plaintiff was returned as unclaimed/undeliverable but was sent to the address recently
confirmed by Plaintiff as hers. See Dkts. 15, 16 & 22.
On March 15, 2012, Plaintiff filed a motion seeking to reopen the case and to obtain
injunctive relief regarding eviction proceedings. Because Plaintiff seeks reconsideration more than
28 days after dismissal, Federal Rule of Civil Procedure 60 governs her request to re-open.
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At the hearing, pro se Plaintiff was sworn and stated that she never received a copy of the
motion to dismiss or the Court’s notice of impending dismissal. Defendants were not able to provide
the Court with proof of service of the motion to dismiss. The Court notes that, unless specifically
ordered, pro se parties do not receive electronic notice of filings. Therefore, as to all future filings
in this matter, Defendants have been directed to send all case materials directly to Plaintiff at the
address provided.
Having heard the arguments presented, the Court finds that Plaintiff has shown excusable
neglect for her failure to respond to the motion to dismiss and the Court’s order. See FED . R. CIV .
P. 60(b)(1) (a court may relieve a party from a final judgment or order for mistake, inadvertence,
surprise or excusable neglect). Therefore, Plaintiff’s Petition for Reconsideration (Dkt. 19) should
be GRANTED and the Court’s January 31, 2012 Order of Dismissal, Docket Entry 17, should be
VACATED and set aside and the case should be re-opened on the Court’s active docket.
As to Plaintiff’s Motion for Preliminary Injunction (Dkt. 21), seeking to enjoin certain
outcomes of state court eviction proceedings in February and March 2012, the Court finds it should
be DENIED. As noted in Judge Schell’s May 15, 2012 order denying Plaintiff’s request for
temporary injunctive order, the Rooker–Feldman doctrine bars federal district courts from exercising
subject-matter jurisdiction over collateral attacks on state court judgments. Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed.2d 454 (2005); Price v.
Porter, 351 F. App’x 925, 926 (5th Cir. 2009).
Within 10 days of the date of this report, Plaintiff shall replead her case with specificity.
Within 30 days of the filing of Defendant’s response to the amended complaint, the parties shall
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submit a Rule 26(f) conference report.
Plaintiff also has recently filed a Motion for No Answer Default (Dkt. 26). That is ordered
STRICKEN. Until Plaintiff amends her pleadings and the case is re-opened, the Court will consider
no such motion. The Court further notes that default judgment is only appropriate if a defendant has
“failed to plead or otherwise defend” the suit. FED . R. CIV . P. 55(a). Defendants have appeared
herein.
Plaintiff shall file no other pleadings until she amends her complaint. Plaintiff is cautioned
that failure to replead or to respond to any relief requested by Defendant or the Court may result in
dismissal of her case.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).
Failure to timely file written objections to the proposed findings and recommendations
contained in this report shall bar an aggrieved party from de novo review by the district court of the
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proposed findings and recommendations and from appellate review of factual findings accepted or
adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn,
474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
SO ORDERED.
SIGNED this 12th day of June, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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