Clark et al v. Chevy Chase Bank et al

Filing 39

ORDER AND MEMORANDUM DECISION denying 34 Motion to Set Aside and ordering plaintiffs' counsel, Jonathan Hanks, to pay Shalom Rubanowitz attoney fees in the amount of $5,177.50. Signed by Judge Tena Campbell on 6/21/12 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CHAD JEREMY CLARK and MEGHAN
CLARK,
Plaintiffs,

ORDER AND
MEMORANDUM DECISION

vs.
Case No. 2:11-CV-1007-TC
CHEVY CHASE BANK, CAPITAL ONE
NA, SHALOM RUBANOWITZ, and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,

Judge Tena Campbell

Defendants.

Defendant Shalom Rubanowitz contends that Plaintiffs’ claims against him in this case
were not brought in good faith and that he is therefore entitled to an award of reasonable
attorney’s fees. The court granted Mr. Rubanowitz’s request in an order issued on May 1, 2012
(Dkt. No. 32). In that order, the court instructed Mr. Rubanowitz to file an affidavit detailing and
itemizing the attorney’s fees. The court also allowed Plaintiffs to file an objection to Mr.
Rubanowitz’s affidavit. Instead of submitting this objection, Plaintiffs filed a motion (Dkt. No.
34) to set aside the court’s May 1 order.
The court finds no reason to do so. Plaintiffs’ counsel, Jonathan Hanks, has offered no
excuse for why the suit was originally filed against Mr. Rubanowitz besides stating that he “had
been informed that Mr. Rubanowitz was not a member of the Utah State Bar.” (Hanks Aff. ¶ 4,
Dkt. No. 36.) But Mr. Rubanowitz is, in fact, a member of the Utah State Bar, and a quick phone

call or a search of the Bar’s website could have quickly determined Mr. Rubanowitz’s status.
Mr. Hanks also states that he misplaced a voluntary dismissal of the charges against Mr.
Rubanowitz as a result of “multiple changes of office space.” (Id. ¶¶ 9-11.) These statements do
not constitute excusable neglect and cannot be used as a basis to set aside the court’s order under
Rule 60(b) of the Federal Rules of Civil Procedure.
As a result, the court DENIES Plaintiffs’ Motion to Set Aside the Court’s Order (Dkt. No.
34) and orders Mr. Hanks to pay Mr. Rubanowitz the sum of $5,177.50, as detailed in Michael
Mayfield’s affidavit (Dkt. No. 33). This amount includes the fees that Mr. Rubanowitz has
incurred from the outset of the litigation. As requested in Plaintiffs’ Memorandum (Dkt. No.
35), this sum is made only against Plaintiffs’ counsel and not against the Plaintiffs themselves.
SO ORDERED this 21st day of June, 2012.
BY THE COURT:

______________________________
TENA CAMPBELL
United States District Judge

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