Rahmi v. Sovereign Bank

Filing 25

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION 22 TO AMEND FEBRUARY 1, 2013 ORDER. Signed by District Judge Gina M. Groh on 3/28/2013. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg) (Additional attachment(s) added on 3/28/2013: # 1 certified mail receipt) (tlg).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

ALEX RAHMI
Plaintiff,
v.

CIVIL ACTION NO. 3:12-CV-87
(JUDGE GROH)

SOVEREIGN BANK, N.A.,
Defendant.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO
AMEND FEBRUARY 1, 2013 ORDER
I. Introduction
On February 28, 2013, Plaintiff filed a “Motion to Amend February 1, 2013 Order”
[Doc. 22]. Upon review of Plaintiff’s motion and Defendant’s response and for the following
reasons, the Court DENIES Plaintiff’s “Motion to Amend February 1, 2013 Order.
II. Facts and Procedural History
On August 31, 2012, Plaintiff Alex Rahmi filed his Complaint against Defendant
Sovereign Bank. In his Complaint, Plaintiff alleged the following facts. Plaintiff was in a
business for twenty-three years. Compl., ¶ 5. Defendant Sovereign Bank (“Sovereign”)
performed the foreclosure on Plaintiff’s property. Id. Plaintiff alleged that the Defendant
engaged in a foreclosure scheme designed and implemented to produce a lower sale
price and to create lower bids to artificially inflate a deficiency judgment. Compl., ¶ 6.
Plaintiff stated the “Fair Market Value” of his business real estate was assessed

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as $3.318 million. Defendant foreclosed on Plaintiff’s business for $1.6 million, and they
obtained a deficiency judgment for $1.358 million. Plaintiff stated a total of $3.3 million
in damages, including $1.2 million for loss of real estate equity, $1.1 million for loss of
business good-will, and $1 million for loss of business assets, equipment, and inventory.
On October 16, 2012, Defendant filed its Motion to Dismiss Plaintiff’s Complaint
and accompanying Memorandum of Law. On October 29, 2012, Plaintiff filed a Motion
to Amend his Complaint. On October 31, 2012, the Court granted Plaintiff’s Motion to
file an Amended Complaint; however, Plaintiff never filed his Amended Complaint.
On October 29, 2012, Plaintiff filed its response to Defendant’s Motion to
Dismiss. On November 8, 2012, Defendant filed its reply. At this point, the Court had
not issued a Roseboro Notice to the pro se Plaintiff. Therefore, on November 8, 2012, a
Roseboro Notice was issued, and Plaintiff was given leave to file an amended response
within thirty days. Plaintiff filed his response on November 20, 2012. Defendant filed its
reply on November 27, 2012. Plaintiff filed a surreply without leave of Court on
December 11, 2012. The Court disregarded the Plaintiff’s surreply because the local
rules require leave of court for parties to file surreply memoranda. Upon reviewing the
parties’ memoranda, the Court granted the Defendant’s Motion to Dismiss pursuant to
Rule 12(b)(6) on February 1, 2013.
On February 28, 2013, Plaintiff filed a “Motion to Amend February 1, 2013
Order.” On March 13, 2013, Defendant filed a response to Plaintiff’s motion. Plaintiff
filed his reply on March 27, 2013. Pursuant to Local Rule of Civil Procedure 7.02(b)(2),
“[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
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motion.” Defendant served his response by First Class U.S. mail, postage prepaid, on
March 13, 2013. Plaintiff was required to file his reply by March 20, 2013, and he did
not seek leave of court to file a late reply. Therefore, the Court must disregard Plaintiff’s
late reply. Accordingly, Plaintiff’s motion is ripe for this Court’s review.
III. Discussion
Plaintiff filed his “Motion to Amend February 1, 2013 Order” pursuant to Federal
Rule of Civil Procedure 59(e). Rule 59(e) authorizes a district court to alter, amend, or
vacate a prior judgment. See FED. R. CIV. P. 59(e).
The United States Court of Appeals for the Fourth Circuit has repeatedly
recognized that a judgment may be amended under Rule 59(e) in only three
circumstances: (1) to accommodate an intervening change in controlling law; (2) to
account for new evidence not available at trial; or (3) to correct a clear error of the law
or prevent manifest injustice. See Gagliano v. Reliance Standard Life Ins. Co., 547
F. 3d 230, 241 n. 8 (4th Cir. 2008). A Rule 59(e) motion “may not be used to relitigate
old matters, or to raise arguments or present evidence that could have been raised prior
to entry of judgment.” Pac Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998) (quoting 11 Wright, Miller & Kane, Federal Practice and Procedure § 2810.1,
at 127-28 (2d ed. 1995)). If a party attempts to present newly discovered evidence in
support of its Rule 59(e) motion, it “must produce a legitimate justification for not
presenting the evidence during the earlier proceeding.” Id. (internal citations and
quotation marks omitted). “In general, reconsideration of a judgment after its entry is an
extraordinary remedy which should be used sparingly.” Id. (internal citations and

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quotation marks omitted).
In this case, Plaintiff filed his motion within twenty-eight days of the entry of
judgment as the judgment was entered on February 1, 2013 and his motion was filed on
February 28, 2013. Therefore, Plaintiff’s motion is timely under Rule 59(e).
Although a motion for reconsideration under Federal Rule of Civil Procedure
59(e) is committed to the discretion of the Court, as outlined earlier, the Fourth Circuit
has recognized only three grounds for amending an earlier judgment: “(1) to
accommodate an intervening change in controlling law; (2) to account for new evidence
not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.”
Pac. Ins. Co., 148 F.3d at 402-03. Plaintiff has not cited any specific ground to amend
this Court’s judgment. However, the Court categorizes Plaintiff’s arguments as seeking
an amended judgment (1) to account for new evidence not available at trial and (2) to
correct a clear error of law or prevent manifest injustice. There has been no intervening
change in the law since entry of this Court’s February 1, 2013 Order, and Plaintiff has
not alleged an intervening change in law. Defendant argues in its response that no
grounds exist for granting Plaintiff’s motion pursuant to Rule 59(e).
a. Newly Discovered Evidence
Plaintiff has two new allegations:(1) “[d]uring September 1, 2012 hearing, at the
U.S. District Court in Martinsburg, Mr. Michael Nord, Sovereign Bank’s Attorney outlined
his plans to Mr. Harry Readshaw [GMAC’s attorney] for obtaining a deficiency Judgment
and going after Alex Rahmi’s remaining assets, During the Court Recess. (with Alex
Rahmi present).” and (2) references to Sovereign Bank’s counsel’s request to obtain his

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deposition on or about January 15, 2011. [Doc. 22].
In the Fourth Circuit, the standard governing relief on the basis of newly
discovered evidence under Rule 59 requires that a party demonstrate:
(1) the evidence is newly discovered since the judgment was entered; (2)
due diligence on the part of the movant to discover the new evidence has
been exercised; (3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and (5) the evidence is such that is likely to
produce a new outcome if the case were retried, or is such that would
require the judgment to be amended.
Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989) (citations omitted). Plaintiff
fails to demonstrate even one of these five factors. Plaintiff does not contend that the
report is “newly discovered evidence.” In fact, Plaintiff has not alleged that the newly
alleged facts could not have, with reasonable diligence, discovered and produced such
evidence in his first Complaint. Plaintiff’s recently alleged facts occured in 2010 and
2011–at least a year before he filed the Complaint in this Court. Plaintiff knew the
events in 2010 and 2011 had taken place because he was allegedly present when the
September 1, 2010 discussion took place and the January 15, 2011 request to take his
deposition was made to him. “Evidence that is available to a party prior to entry of
judgment, therefore, is not a basis for granting a motion for reconsideration as a matter
of law.” Quillin v. C.B. Fleet Holding Co., Inc., 328 Fed. Appx. 195, 203 (4th Cir.
2009) (quoting Boryan, 884 F.2d at 771). Plaintiff failed to meet his burden or even to
meaningfully address the Boryan standard. Plaintiff has not shown that newly alleged
facts were not available to him at the time he filed his Complaint or at any time prior to
the Court’s issuance of its February 1, 2013 Order. Accordingly, Plaintiff has not carried
his burden to show that his newly alleged factual allegations could be considered.
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b. Correct a Clear Error of Law or Prevent a Manifest Injustice
A Rule 59(e) motion “is not intended to allow for reargument of the very issues
that the court has previously decided.” DeLong v. Thompson, 790 F. Supp. 594, 618
(E.D. Va. 1991), aff’d, 985 F.2d 553 (4th Cir. 1993) (unpublished). A party may not
“raise arguments which could have been raised prior to the issuance of the judgment,
nor may they be used to argue a case under a novel legal theory that the party had the
ability to address in the first instance.” Pac. Ins. Co., 148 F.3d at 403.
In this case, Plaintiff states he is requesting the Court to alter its Judgment, but
he does not state that the Court erred in dismissing his Complaint pursuant to Rule
12(b)(6) for failure to state a claim. In fact, Plaintiff does not cite any errors in the
Court’s Order or its analysis. Upon examining Plaintiff’s arguments, he has failed to
demonstrate that this Court committed a clear error of law or that the judgment would
effect manifest injustice on the moving party. Because Plaintiff has failed to satisfy any
of the three permissible grounds upon which a Rule 59(e) motion may be established,
the Court DENIES Plaintiff’s “Motion to Amend February 1, 2013 Order” under Rule
59(e).
IV. Conclusion
Accordingly, the Court DENIES Plaintiff’s “Motion to Amend February 1, 2013
Order” [Doc. 22].
The Clerk is directed to mail a certified copy of this Order to all counsel of record
and the pro se Plaintiff.

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DATED: March 28, 2013

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