Gelinas et al v. Bank of America NA et al

Filing 22

ORDER denying plaintiffs' 19 Motion to Set Aside or Vacate signed by Judge Richard A Jones.(RS) cc plaintiffs

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DAVID R. GELINAS, et al.,
Plaintiffs,

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Case No. 16-1355-RAJ

v.

ORDER

BANK OF AMERICA, N.A., et al.,
Defendants.

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I.

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INTRODUCTION

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This matter comes before the Court on Plaintiffs’ Motion to Set Aside or Vacate

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(Dkt. # 19) this Court’s Order granting Defendants’ Motion to Dismiss (Dkt. # 18). For

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the reasons that follow, the Court DENIES the Motion.

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II. BACKGROUND

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On October 12, 2016, Defendants, Bank of America, N.A., HSBC Bank, USA,

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National Association, and Mortgage Electronic Registration Systems, Inc. (collectively,

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“Defendants”), moved to dismiss a complaint filed by Plaintiffs David R. Gelinas and

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Karen M. Gelinas (collectively, “Plaintiffs”). Dkt. # 10. On March 28, 2017, the Court

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granted Defendants’ motion and gave Plaintiffs leave to amend their complaint.
Dkt. #18. Plaintiffs did not file an amended complaint, but instead filed a motion to set
aside or vacate the order granting Defendants’ motion. Dkt. #19. Plaintiffs, pro se
litigants, do not specify what authority under which they bring their motion.
ORDER – 1

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Accordingly, the Court will consider Plaintiffs’ Motion under Federal Rules of Civil
Procedure 59(e) and 60(b) and Local Rule 7(h).
III. LEGAL STANDARD

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Motions for reconsideration are disfavored under the Local Rules for the Western
District of Washington. See LCR 7(h)(1). Thus, “in the absence of a showing of
manifest error in the prior ruling or a showing of new facts or legal authority which could
not have been brought to [the Court’s] attention earlier with reasonable diligence,” such
motions will ordinarily be denied. Id. Motions for reconsideration must be filed within
fourteen (14) days of the order on which the motion is based. LCR 7(h)(2).
While a previous order can be reconsidered and amended under Rule 59(e), the
rule offers an “extraordinary remedy” to be used sparingly. A motion to reconsider
“should not be granted, absent highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear error, or if there is an
intervening change in the controlling law.” Carroll v. Nakatani, 342 F.3d 934, 945
(9th Cir. 2003)(quoting Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000); Fed. R. Civ. P. 59. Rule 60(b) allows a party to seek relief from an order
under a “limited set of circumstances, including fraud, mistake, and newly discovered
evidence.” Harvest v. Castro, 531 F.3d 737, 744 (9th Cir. 2008); Fed. R. Civ. P. 60(b).
IV. DISCUSSION

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As a preliminary matter, as a motion brought under Local Rule 7, Plaintiffs’
Motion is untimely. The Order granting Defendants’ motion to dismiss was issued on
March 28, 2017. Plaintiffs’ Motion was filed on April 25, 2017. Plaintiffs’ Motion was
not filed within the fourteen (14) days required by Local Rule 7(h)(2). Under Rule 59, a
motion to alter a judgment must be filed no later than 28 days after the entry of judgment.
Fed. R. Civ. P. 59. Under Rule 60, a motion for relief from judgment must be filed
within a “reasonable time” or if brought under circumstances of alleged mistake, newly
discovered evidence, or fraud, no more than one year after the entry of the order.
ORDER – 2

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Fed. R. Civ. P. 60(c). As Plaintiffs’ Motion is timely under Rules 59 and 60, and
Plaintiffs do not indicate what legal authority they bring their Motion under, their
arguments will be still be considered here.
Plaintiffs argue that the Court’s Order should be vacated because Defendants’
Motion to Dismiss was untimely and because Defendants failed to file a corporate
disclosure statement in compliance with Local Rule 7.1. LCR 7.1. Plaintiffs bring these
arguments for the first time in this Motion. A Rule 59(e) motion may not be used to raise
arguments or present evidence for the first time when they could reasonably have been
raised earlier in litigation. Carroll, 342 F.3d at 945 (9th Cir. 2003). Plaintiffs could have
raised these issues at any time prior to the Court’s Order and failed to do so. Further,
Plaintiffs make no argument that there is an error in the prior ruling, newly discovered
facts or evidence, or a change in controlling law, such that reconsideration of the Order is
warranted. Neither do Plaintiffs claim that these procedural issues present any of the
grounds for relief available to them under Rule 60. Other than to note that these issues
constitute technical deficiencies, Plaintiffs make no argument that the alleged
untimeliness of the Motion to Dismiss and the absence of the corporate disclosure
statement prejudiced them in any way. As Plaintiffs’ provide no basis for reconsideration
under Rule 59, Rule 60, or Local Rule 7, their Motion must be DENIED.
V. CONCLUSION

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For the reasons stated above, the Court DENIES Plaintiffs’ Motion to Set Aside or
Vacate. Dkt. #19.
DATED this 6th day of September, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 3