Hosaflook v. Ocwen Loan Servicing, LLC

Filing 181

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF TIME [DKT. NO. 178 ], DENYING MOTION TO REOPEN THE CASE [DKT. NO. 176 ], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176 ]. The Court DENIES Hosaflook's motion to file a reply brief out of time (Dkt. No. 178 ) and DENIES his motion to reopen the case (Dkt. No. 176 ). It further DENIES as MOOT his motion to unseal (Dkt. No. 176 ). Signed by Senior Judge Irene M. Keeley on 7/30/2019. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THEODORE HOSAFLOOK,
Plaintiff,
v.

CIVIL ACTION NO. 1:17CV28
(Judge Keeley)

OCWEN LOAN SERVICING, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
Pending before the Court is the plaintiff’s combined motion to
reopen the case and motion to unseal the Court’s Memorandum Opinion
and Order Denying the Plaintiff’s Motion for Partial Summary
Judgment and Denying the Defendant’s Motion for Summary Judgment
(“Memorandum Opinion and Order”). Also pending is the plaintiff’s
motion to file a reply brief out of time. For the reasons that
follow, the Court DENIES the motion to file a reply out of time
(Dkt. No. 178), DENIES the motion to reopen the case (Dkt. No.
176), and DENIES as MOOT the motion to unseal (Dkt. No. 176).
I. BACKGROUND
This case arose from the allegedly abusive loan servicing
practices of the defendant, Ocwen Loan Servicing (“Ocwen”). The
plaintiff, Theodore Hosaflook (“Hosaflook”), alleged that Ocwen,
the servicer of his home mortgage loan, engaged in abuse loan
servicing by misrepresenting amounts due, by failing to implement

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
a loan modification agreement, and by refusing to accept his
payments (Dkt. No. 1-1). Following the close of discovery in the
case, the parties filed cross motions for summary judgment.
On September 17, 2019, the Court entered under seal its
Memorandum Opinion and Order denying summary judgment (Dkt. No.
166). Shortly thereafter, on September 19, 2018, the parties filed
a joint notice of settlement, advising the Court that they had
fully resolved the case (Dkt. No. 170). Following a lengthy
extension

of

the

deadline

for

the

submission

of

a

proposed

dismissal order, the Court entered an agreed order dismissing
Hosaflook’s claims with prejudice and closing the case on December
27, 2018, more than three months after being advised that the case
had been resolved (Dkt. No. 175).
Approximately two weeks later, on January 9, 2019, Hosaflook
filed a combined motion to reopen the case under Federal Rule of
Civil Procedure 60(b) and motion to lift the seal on the Court’s
Memorandum Opinion and Order on summary judgment (Dkt. No. 176). In
support of his motion to reopen the case, Hosaflook states, in a
footnote, that his counsel “inadvertently presented [the dismissal
order] before the present issue was resolved.” Therefore, his
motion

is

“appropriate

under

2

Rule

60(b)(1)

(“mistake,

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
inadvertence”) and Rule 60(b)(6) (“any other reason justifying
relief”).” Id. at 1 n 1. In support of his simultaneously filed
motion to unseal, Hosaflook argues that the public’s access to the
Memorandum Opinion and Order implicates important rights under the
First Amendment of the United States Constitution. Id. Ocwen timely
filed a response in opposition to both motions on January 23, 2019
(Dkt. No. 177). On February 5, 2019, Hosaflook filed a reply brief
six days out of time (Dkt. No. 179)1, along with a motion for an
extension of time to file the reply (Dkt. No. 178), which Ocwen has
opposed (Dkt. No. 180). Accordingly, the motions are fully briefed
and ripe for decision.
II. MOTION TO FILE REPLY OUT OF TIME
As a preliminary matter, the Court takes up Hosaflook’s motion
to file a reply brief six days out of time (Dkt. No. 178). Federal
Rule of Civil Procedure 6(b) gives the Court discretion to extend
a deadline after its passage upon a showing of “excusable neglect.”

In pertinent part, Local R. Civ. P. 7.02(b) provides that
“[e]xcept for replies to responses to motions for summary judgment,
replies shall be filed and served within seven (7) days from the
date of service of the response to the motion. L. R. Civ. P.
7.02(b)(2). Accordingly, Hosaflook’s reply memorandum was due by
January 30, 2019.
1

3

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
Under the law of the United States Court of Appeals of the Fourth
Circuit,
“‘[e]xcusable neglect’ is not easily demonstrated, nor
was it intended to be . . . ‘the burden of demonstrating
excusability lies with the party seeking the extension
and a mere concession of palpable oversight or
administrative failure generally has been held to fall
short of the necessary showing . . .’” Thompson v. E.I.
DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir.1995)
(quoting In re O.P.M. Leasing Serv., Inc., 769 F.2d 911,
917 (2d Cir. 1985)). A finding of excusable neglect
ultimately comes down to a balance of the equities, and
the decision whether or not to grant an extension
“remains committed to the discretion of the district
court.” Id. at 532 n.2; see also United States v.
Borromeo, 945 F.2d 750, 754 (4th Cir. 1991).
Anderson
(N.D.

W.

v.

Spencer,

Va.

consideration

Dec.

No.
21,

include

5:09CV117,
2011)

(1)

2011

(Stamp,

“the

danger

WL

J.).
of

6748827,
The

at

factors

prejudice

to

*2
for

[the

non-moving party],” (2) “the length of the delay and its potential
impact on judicial proceedings,” (3) “the reason for the delay,
including whether it was in the reasonable control of the movant,”
and (4) “whether the movant acted in good faith.” Pioneer Inv.
Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).
“Quite obviously, the most important of these factors in deciding
whether the ‘neglect’ was ‘excusable’ is the proffered reason for
it.” Anderson, 2011 WL 6748827, at *3 (citing Thompson, 76 F.3d at
534).
4

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
Moreover, Federal Rule of Civil Procedure 7 provides, in
relevant part, that “[a] request for a court order must be made by
motion. The motion must: (A) be in writing unless made during a
hearing or trial; (B) state with particularity the grounds for
seeking the order; and (C) state the relief sought.” Fed. R. Civ.
P. 7(b)(1) (emphasis added). Thus, a motion for relief pursuant to
Rule

6(b)(2)

must

state

with

specificity

the

basis

for

the

requested relief pursuant to Rule 7(b)(1).
Here, Hosaflook’s motion fails to state with particularly the
grounds for seeking an extension of time to file his reply brief.
In fact, the only basis Hosaflook sets forth for the untimely
filing of his brief is “inadvertent clerical error” (Dkt. No. 178).
Thus, the “most important” equitable factor, the proffered reason
for the neglect, weighs against Hosaflook: his attorney simply
failed to calendar the correct date for the filing of a reply
brief. Further, the Court observes that Hosaflook’s counsel has
litigated multiple cases in the Northern District of West Virginia
with awareness of the local rules and deadlines for filing a timely
reply brief. In addition, his counsel has previously moved for
extensions of time to comply with the Court’s deadlines in this
matter, see, e.g., Dkt. No. 108 (seeking extension of time to
5

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
submit exhibit binders to the Court), and has otherwise failed to
pay careful attention to the timely filing of documents in the
case, see, e.g., Dkt. No. 176 (seeking to reopen the case due to
“inadvertently” submitting a proposed dismissal order prior to
moving to lift the seal on the Memorandum Opinion and Order at
issue).
Consequently, finding no excusable neglect for Hosaflook’s
failure to timely file his reply brief and no good cause to permit
him to do so out of time, the Court DENIES his motion (Dkt. No.
178), and will not consider the reply filed at Docket Entry 179 in
its determination of the pending motion to reopen the case and
motion to unseal.
III. MOTION TO REOPEN THE CASE
The Court turns next to Hosaflook’s motion to reopen the case
under Federal Rule of Civil Procedure 60(b)(1) or 60(b)(6) (Dkt.
No. 176), which Ocwen opposes as procedurally improper (Dkt. No.
177).
In relevant part, Rule 60(b) provides that “on motion and just
terms, the court may relieve a party . . . from a final judgment,
order or proceeding” for (1) mistake, inadvertence, surprise, or
excusable neglect . . . or (6) any other reason that justifies

6

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
relief.

Fed.

R.

Civ.

P.

60(b).

The

Court

will

address

each

proferred basis for relief, in turn, below.
A.

Mistake and Inadvertence
Disposition of a motion under Rule 60(b) is committed to the

discretion of the district court. As this Court has previously
recognized, Rule 60(b)(1), which applies to “mistake, inadvertence,
surprise, or excusable neglect,” is a demanding standard. Camastro
v. W. Virginia Alcohol Beverage Control Comm’n, No. 5:14CV67, 2015
WL 9244286, at *3 (N.D. W. Va. Dec. 17, 2015). Some attempt must be
made by the movant to show why he was justified in failing to avoid
mistake or inadvertence, and “[a] party that fails to act with
diligence will be unable to establish that his conduct constituted
excusable neglect pursuant to Rule 60(b)(1).” Robinson v. Wix
Filtration Corp. LLC, 599 F.3d 403, 413 (4th Cir. 2010) (internal
citations omitted).
Moreover,

the

Fourth

Circuit

has

consistently

held

that

routine inattentiveness by counsel does not afford a basis for
relief from a judgment or order. See Robinson v. Wix Filtration
Corp.

LLC,

599

F.3d

403,

413

(4th

Cir.

2010)

(“[Attorney

inattentiveness toward the pending litigation is not excusable
under Rule 60(b).”); Evans v. United Life & Acc. Ins. Co., 871 F.2d

7

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
466, 472 (4th Cir. 1989) (“[A] lawyer’s ignorance or carelessness
do[es] not present cognizable grounds for relief under 60(b).”);
see also Camastro, No. 5:14CV67, 2015 WL 9244286, at *4 (citing
Evans for this proposition). Here, Hosaflook’s counsel avers that
she “inadvertently” presented the parties’ agreed dismissal order
for

entry

prior

to

moving

to

lift

the

seal

on

the

Court’s

Memorandum Opinion and Order denying summary judgment (Dkt. No. 176
at 1 n. 1). This explanation is simply insufficient.
On September 17, 2018, the Clerk of Court informed Hosaflook’s
counsel via email that the Court had issued its Memorandum Opinion
and

Order

on

summary

judgment

under

seal.

See

Dkt.

No.

166

(reflecting that the Order had been entered under seal and emailed
to counsel of record). During a pretrial conference held with the
parties and their counsel on the same date (Dkt. No. 167), the
Court articulated on the record its reasons for sealing the Order.
Likewise, Hosaflook’s counsel was clearly aware of the December 21,
2018 deadline for the submission of a proposed dismissal order, as
the parties had requested this deadline themselves (Dkt. Nos. 172;
173).2

By Order entered on November 8, 2018, the Court granted the
parties’ joint motion to extend the deadline for the submission of
a dismissal order by forty-five (45) days, and directed the parties
2

8

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
Nevertheless, at no time between the Court’s entry of its
Memorandum Opinion and Order in September 2018 and counsel’s
submission of the parties’ agreed dismissal order in December
2018,3 a period spanning more than three (3) months, did Hosaflook
move to lift the seal on the Court’s Order. Other than the mere
inadvertence

of

his

counsel,

Hosaflook

offers

no

excuse

for

neglecting to file his motion to unseal prior to submitting the
agreed dismissal order. Because the so-called “inadvertent” entry
of the Court’s dismissal order can be attributed solely to the
oversight of his counsel, Hosaflook has failed to establish that he
is entitled to relief under Rule 60(b)(1).
B.

Any Other Reason Justifying Relief
A party may also move the Court to vacate a final judgment for

“any . . . reason that justifies relief.” Fed. R. Civ. P.60(b)(6).
This provision “vests power in courts adequate to enable them to
vacate judgments whenever such action is appropriate to accomplish
justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949).

to forward an appropriate dismissal order on or before December 21,
2018 (Dkt. No. 173).
Counsel for Hosaflook filed the parties’ proposed dismissal
order on December 27, 2018, six (6) days after the Court’s extended
deadline (Dkt. No. 174). The Court entered the agreed order on the
same date (Dkt. No. 175).
3

9

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
“While this catchall reason includes few textual limitations, its
context requires that it may be invoked in only ‘extraordinary
circumstances’ when the reason for relief from judgment does not
fall

within

the

list

of

enumerated

reasons

given

in

Rule

60(b)(1)-(5).” Aikens v. Ingram, 652 F.3d 496, 500–01 (4th Cir.
2011) (citing Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847, 863 n. 11, 864 (1988)). “[E]xtraordinary circumstances
[are those] that create a substantial danger that the underlying
judgment was unjust.” Murchison v. Astrue, 466 F. App’x 225, 229
(4th Cir. 2012) (citation omitted).
As Chief Justice Rehnquist noted in his separate opinion in
Liljeberg, “[t]his very strict interpretation of Rule 60(b) is
essential if the finality of judgments is to be preserved.” 486
U.S. at 873 (Rehnquist, C.J., dissenting) (citations omitted). The
Fourth Circuit has similarly observed that “[t]o give Rule 60(b)(6)
broad application would undermine numerous other rules that favor
the finality of judgments[.]” Aikens, 652 F.3d at 501 (citing Rule
59 (requiring that motions for new trial or to alter or amend a
judgment be filed no later than 28 days after the entry of
judgment); Rule 6(b)(2) (providing that a court may not extend the
time to file motions under Rules 50(b), 50(d), 52(b), 59(b), 59(d),

10

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
59(e), and 60(b)); and Federal Rule of Appellate Procedure 4(a)
(requiring generally that appeals be filed within 30 days after
judgment)).
Here, Hosaflook contends that relief under Rule 60(b)(6) is
warranted because he seeks to reopen the case in order to file a
“procedural” motion to unseal, which purportedly “advances an
important constitutional right of the public to view court records”
(Dkt. No. 176 at 1 n. 1). More specifically, he contends that the
Court did not follow an appropriately “deliberative” process when
it elected to enter its Memorandum Opinion and Order on summary
judgment under seal, and that, “[i]f such a deliberative process
had been followed, the Order would presumably have not been
sealed.” See id. at 4-5. Thus, at bottom, Hosaflook requests that
the Court reopen this closed case in order to reconsider its prior
decision to seal its Order denying summary judgment.
The Fourth Circuit has consistently held, however, that “[t]o
the extent that a post-judgment motion s[eeks] to have the district
court reconsider its prior ruling with respect to [issues addressed
in the district court’s original order], it [is] clearly improper,
because

Rule

60(b)

does

not

authorize

a

motion

merely

for

reconsideration of a legal issue.” CNF Constructors, Inc. v.

11

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
Donohoe Const. Co., 57 F.3d 395, 400 (4th Cir. 1995) (third and
fourth alterations in original) (quoting United States v. Williams,
674 F.2d 310, 312 (4th Cir. 1982)). Where “the motion is nothing
more than a request that the district court change its mind . . .
it is not authorized by Rule 60(b).” Williams, 674 F.2d at 313
(citation

omitted);

Sabatino

v.

Pill,

No.

1:17CV72,

2017

WL

6329952, at *2 (N.D. W. Va. Dec. 11, 2017) (Stamp, J.) (“[W]here a
motion is for reconsideration of legal issues already addressed in
an earlier ruling, the motion is not authorized by Rule 60(b).”).
The Court agrees with Ocwen that Hosaflook’s motion to reopen
is such a post-judgment motion not authorized under Rule 60(b). As
noted above, on September 17, 2018, the Court entered under seal
its Memorandum Opinion and Order on summary judgment and, during a
pretrial conference on the same day, articulated on the record its
reasons for sealing the Order (Dkt. Nos. 166; 167). During that
hearing, the Court also took up Ocwen’s related “Motion to Exclude
from the Public Record Confidential Documents” (Dkt. No. 163),
which it granted by Order entered on September 19, 2018. See Dkt.
No. 169. Thus, to the extent that Hosaflook seeks to reopen the
case in order to move the Court to unseal the Memorandum Opinion

12

HOSAFLOOK V. OCWEN LOAN SERV., LLC.

1:17CV28

MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE REPLY OUT OF
TIME [DKT. NO. 178], DENYING MOTION TO REOPEN THE CASE [DKT. NO.
176], AND DENYING AS MOOT MOTION TO UNSEAL [DKT. NO. 176]
and Order, his motion requests reconsideration not authorized by
Rule 60(b). Williams, 674 F.2d at 312.
Therefore, while recognizing the public’s presumptive right of
access to judicial documents and records afforded by the common law
and the First Amendment, the Court declines to disturb the finality
of the judgment in this closed civil action upon a party’s request
for reconsideration of a legal issue already addressed in earlier
rulings. Because Hosaflook has failed to sustain the heavy burden
of establishing entitlement to relief under Rule 60(b), the Court
DENIES his motion to reopen the case (Dkt. No. 176).
IV. CONCLUSION
In conclusion, for the reasons discussed, the Court DENIES
Hosaflook’s motion to file a reply brief out of time (Dkt. No. 178)
and DENIES his motion to reopen the case (Dkt. No. 176). It further
DENIES as MOOT his motion to unseal (Dkt. No. 176).
It is so ORDERED.
The Court

DIRECTS

the Clerk to transmit copies of this

Memorandum Opinion and Order to counsel of record, and to strike
this case from the Court’s active docket.
DATED: July 30, 2019

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
13