Miceli et al v. The Bank of New York Mellon

Filing 38

ORDER DENYING 28 Motion for Reconsideration. Signed by Judge David A. Ezra. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JILL MICELI and FRANK MICELI,

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Plaintiffs,
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vs.
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THE BANK OF NEW YORK
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MELLON FKA THE BANK OF NEW §
YORK, AS TRUSTEE FOR THE
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CERTIFICATEHOLDERS OF
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CWABS, INC., ASSET-BACKED
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CERTIFICATES, SERIES 2007-12 and §
THE CERTIFICATEHOLDERS OF
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CWABS, INC., ASSET-BACKED
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CERTIFICATES, SERIES 1007-12,
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Defendants.
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CV NO. 1:13-CV-01032-DAE

ORDER DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION
Before the Court is a Motion for Reconsideration filed by Plaintiffs
Jill and Frank Miceli (“Plaintiffs”) asking the Court to reconsider its order
allowing Defendant The Bank of New York Mellon FKA The Bank of New York
(“Defendant”) to file its motion for summary judgment out of time (Dkt. # 28).
The Court finds this matter suitable for disposition without a hearing pursuant to
Local Rule CV-7(h). For the reasons that follow, the Court DENIES Plaintiffs’
Motion for Reconsideration.

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BACKGROUND
Plaintiffs filed their Original Petition in the 419th Judicial District
Court of Travis County, Texas on October 28, 2013. (Dkt. # 1-1.) Plaintiffs
alleged that CWABS, Inc., Asset-Backed Certificates, Series 2007-12 (“CWABS
Trust”), the trust for which Defendant is the trustee, did not legitimately acquire
Plaintiffs’ loan. (Orig. Pet. ¶¶ 10–12.) Plaintiffs further alleged that Defendant
violated the Texas Civil Practices and Remedies Code by making, presenting, or
using documents or other records with knowledge that the records were a
fraudulent claim against real property. (Id. ¶ 20.)
On November 27, 2013, Defendant filed a Notice of Removal in this
Court. (Dkt. # 1.) Defendant subsequently filed a counterclaim against Plaintiffs
on December 4, 2013. (Dkt. # 4.) On September 26, 2014, Defendant filed a
Motion for Summary Judgment on Plaintiffs’ claims. (Dkt. # 13.) On November
13, 2014, Magistrate Judge Mark Lane issued a Report and Recommendation
finding that summary judgment should be granted for Defendant. (Dkt. # 20.) On
January 21, 2015 this Court issued an order adopting the Magistrate Judge’s Report
and Recommendation, granting Defendant’s Motion for Summary Judgment, and
granting summary judgment in favor of Defendant CWABS Trust. (Dkt. # 26.)
On February 5, 2015, Defendant filed a Motion for Leave to File a
Motion for Summary Judgment on its counterclaim. (Dkt. # 27.) Plaintiffs did not

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respond to the Motion within the seven days provided to respond to
non-dispositive motions under the Local Rules, and this Court granted Defendant’s
Motion on February 13, 2015. On February 18, 2015, Plaintiffs filed the instant
Motion for Reconsideration of the Court’s Order Granting Defendant’s Motion for
Leave to File Motion for Summary Judgment on its Counterclaim. (Dkt. # 28.)
Defendant filed a Response on February 29, 2015. (Dkt. # 29.)
LEGAL STANDARD
“While the Federal Rules of Civil Procedure do not provide for a
motion for reconsideration, such a motion may be considered either a Rule 59(e)
motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment
or order.” Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004).
Whether a motion is considered under Rule 59(e) or Rule 60(b) depends on when it
was filed. See id. A motion filed within 28 days of the judgment or order of
which the party complains is considered a motion brought under Rule 59(e).
Williams v. Thaler, 602 F.3d 291, 303 & n.7 (5th Cir. 2010); see also Fed. R. Civ.
P. 59(e). Here, Plaintiffs filed their Motion five days after entry of the Court’s
Order, and the Court will therefore consider the Motion under Rule 59.
Federal Rule of Civil Procedure 59(e) permits a litigant to challenge
the correctness of a judgment. Three rationales can support a motion to alter or
amend under Rule 59(e): (1) the judgment exhibits “a manifest error of law or

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fact”; (2) the litigant wishes to present newly discovered evidence; or (3) “there
has been an intervening change in the controlling law.” Schiller v. Physicians Res.
Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (quoting Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863–64 (5th Cir. 2003)). “‘Manifest error’ is one that ‘is plain and
indisputable, and that amounts to a complete disregard of the controlling law.’”
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004). Accordingly, a
Rule 59(e) motion “is not the proper vehicle for rehashing evidence, legal theories,
or arguments that could have been offered or raised before the entry of judgment,”
and instead is an “extraordinary remedy that should be used sparingly.” Templet v.
HydroChem Inc., 367 F.3d 476, 479 (5th Cir. 2004).
DISCUSSION
Plaintiffs do not seek to present new evidence, and do not argue that
there has been an intervening change in the law. Plaintiffs instead offer the
arguments that they intended, but failed, to offer in response to Defendant’s
Motion for Leave to file for summary judgment, explaining that they “had a
response partially drafted but . . . mistakenly missed the deadline to file it.” (Dkt.
# 28 at 1.) Such arguments are precisely the kind that “could have been offered or
raised before the entry of judgment,” and thus cannot be properly used to support
Plaintiffs’ Motion under Rule 59(e). See Templet, 367 F.3d at 479.

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Even if Plaintiffs’ arguments were the proper basis of a Rule 59(e)
motion, absent newly discovered evidence or an intervening change in the
controlling law, Plaintiffs would have to show error that “amounts to a complete
disregard of the controlling law.” Guy, 394 F.3d at 325. The Local Rules of the
Western District of Texas set out the controlling law for the timing of submission
of motions to this Court. See W.D. Tex. Local R. CV-7. Under Local Rule
CV-7(e)(2), the Court may grant a motion as unopposed if the non-moving party
fails to respond to a non-dispositive motion within seven days of the filing of the
motion. Plaintiffs here failed to respond to Defendant’s Motion for Leave within
the seven-day time period, and the Court was therefore permitted to grant
Defendant’s Motion for Leave as unopposed. 1 Plaintiffs have therefore failed to
show the manifest error required to grant a motion for reconsideration under Rule
59(e).
Plaintiffs are further unable to show manifest error on the merits of
the Court’s order granting Defendant leave to file for summary judgment on its
counterclaim. Defendant’s Motion for Leave was brought under Rule 6(b) of the
Federal Rules of Civil Procedure. (Dkt. # 27 at 2.) Under Rule 6(b), when an act
must be done within a specified time, the court may, for good cause, extend the
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The Court further notes that Plaintiffs’ motions for extensions of time have been
liberally granted throughout this action, and if Plaintiffs had wished for additional
time to respond, they could have again moved for an extension. (See Dkt. ## 15,
17, 34.)
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time on motion made after the time has expired if the party failed to act because of
excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). “[T]he determination [of excusable
neglect] is at bottom an equitable one, taking account all of the relevant
circumstances surrounding the party’s omission. These include . . . the danger of
prejudice . . . the length of delay and its potential impact on judicial proceedings,
the reason for delay, including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993). A district court “enjoys
broad discretion to grant or deny an extension.” Salts v. Epps, 676 F.3d 468, 474
(5th Cir. 2012) (internal quotation marks omitted).
The deadline for filing dispositive motions in this action was
September 29, 2014. (Dkt. # 10.) Defendant filed its Motion for Leave to file for
summary judgment on its counterclaim on February 5, 2015. (Dkt. # 27.)
Defendant states that its approximately four-month delay was due to its expectation
that a settlement agreement could be reached that would obviate the need to obtain
a judgment on its counterclaim for foreclosure. (Id. at 5.) Plaintiffs argue that
Defendant’s choice not to file for summary judgment on its counterclaim does not
constitute excusable neglect. (Dkt. # 28 at 2.)
While the lapse of four months is substantial and Defendant’s reason
for delay was within its control, Defendant has acted in good faith, Defendant’s

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motion for judgment on its counterclaim for foreclosure will not unreasonably
delay resolution of this action, and allowing Defendant to file its summary
judgment motion does not appreciably prejudice Plaintiffs. Plaintiffs’ suggestion
that Defendant failed to file for summary judgment on its counterclaim in order to
deprive Plaintiffs of the opportunity to examine Defendant’s evidence is
meritless—Defendant filed its counterclaim eight months before the discovery
deadline, giving Plaintiffs ample time to request production of evidence relevant to
Defendant’s foreclosure action. (See Dkt. ## 4, 10.) Additionally, while Plaintiffs
will incur the expense of defending against Defendant’s summary judgment
motion, such expense would be far greater if the Court had not permitted
Defendant to file its motion and Plaintiffs were instead required to defend against
Defendant’s counterclaim at trial. Finally, while Defendant undoubtedly should
have timely filed for summary judgment on its counterclaim, its failure to do so
was not in bad faith.
The Court’s decision to grant Defendant’s Motion for Leave to File
Motion for Summary Judgment was thus well within its discretion under Rule 6(b),
and Defendant has failed to show that the Court’s Order suffered from a manifest
error of law or fact.

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CONCLUSION
For the aforementioned reasons, the Court DENIES Plaintiffs’
Motion to Reconsider (Dkt. # 28).
IT IS SO ORDERED.
DATED: Austin, Texas, April 17, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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