Rahmi v. Sovereign Bank

Filing 28

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S 27 SECOND MOTION TO AMEND FEBRUARY 1, 2013 25 ORDER. Signed by District Judge Gina M. Groh on 4/12/2013. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg) (Additional attachment(s) added on 4/12/2013: # 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 SECOND MOTION
TO AMEND FEBRUARY 1, 2013 ORDER
On April 10, Plaintiff filed a “Motion to Amend and Alter the Memorandum Opinion
dated Feb 28, 2013.” [Doc. 27] Upon review of Plaintiff’s motion, the Court finds that it
should be DENIED.
I. 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. Defendant Sovereign Bank (“Sovereign”) performed
the foreclosure on Plaintiff’s property. 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.
Plaintiff stated the “Fair Market Value” of his business real estate was assessed
as $3.318 million. Defendant foreclosed on Plaintiff’s business for $1.6 million, and they

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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.” This Court denied the Plaintiff’s First Motion to Amend because he failed to
satisfy the requirements under Federal Rule of Civil Procedure 59(e). Plaintiff’s first
motion to alter or amend the judgment simply attempted to “relitigate old matters.” See
Pac Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) ( A Rule
59(e) motion “may not be used to relitigate old matters, or to raise arguments or present
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evidence that could have been raised prior to entry of judgment.”). Indeed, Plaintiff
failed to rely on an intervening change in controlling law, to account for new evidence
not available at the time the Court entered its February 1, 2013 Order, or 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).
II. Discussion
Plaintiff has now filed a second “Motion to Amend and Alter the Memorandum
Opinion dated Feb 28, 2013.” This Court did not enter an Order dated February 28,
2013. Therefore, the Court is assuming that Plaintiff seeks reconsideration of either the
Court’s February 1, 2013 Order granting Defendant’s motion to dismiss or the Court’s
March 28, 2013 Order denying Plaintiff’s first motion for reconsideration. In either
situation, Plaintiff has failed to meet his burden under Federal Rule of Civil Procedure
59(e). First, Plaintiff has not pointed to an intervening change in controlling law.
Second, Plaintiff has not to accounted for new evidence not available at the time the
Court entered its February 1, 2013 Order or at the time the Court entered its March 28,
2013 Order. Last, Plaintiff has not argued that the Court must reconsider its Order to
correct a clear error of the law or to prevent manifest injustice.
Plaintiff relies on Federal Rule of Civil Procedure 59(e) in his second motion for
reconsideration. However, if Plaintiff is moving to amend or alter the Court’s February
1, 2013 judgment, then the second motion for reconsideration is untimely as it was filed
later than twenty-eight days after the entry of the judgment and the first motion for
reconsideration brought pursuant to Rule 59(e) was denied by the Court in its March 28,

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2013 Order. Also, if Plaintiff is moving to amend or alter the Court’s March 28, 2013
Order, then Plaintiff is seeking relief from an Order under Rule 60(b). Therefore, the
Court will also analyze Plaintiff’s current motion under Rule 60 of the Federal Rules of
Civil Procedure.
Before a party may seek relief under Rule 60(b), a party must first show
“timeliness, a meritorious defense, a lack of unfair prejudice to the opposing party, and
exceptional circumstances.” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993
F.2d 46, 48 (4th Cir. 1993) (quoting Werner v. Carbo, 731 F.2d 204, 207 (4th Cir.
1984)). After a party has satisfied the initial inquiry, the moving party must demonstrate
at least one of the six listed grounds in Rule 60(b). Werner, 731 F.2d at 207. Rule
60(b) provides:
Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b). The moving party “must clearly establish the grounds therefor to
the satisfaction of the district court,” and those grounds “must be clearly substantiated
by adequate proof.” In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992) (citations omitted).

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In this case, Plaintiff has failed to satisfy his burden under Rule 60. Plaintiff has
not relied on any of the enumerated provisions in Rule 60. As discussed above, Plaintiff
failed to provide any newly discovered evidence that, with reasonable diligence, could
not have been provided earlier. Plaintiff also fails to point to any mistake, inadvertence,
surprise, or excusable neglect. Therefore, Plaintiff’s “Motion to Amend and Alter the
Memorandum Opinion dated Feb 28, 2013" is wholly inadequate.
The Court acknowledges that Plaintiff is proceeding pro se. However, the Court
cautions Plaintiff that Rule 11 of the Federal Rules of Civil Procedure still applies to him
and his filings. See Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990)
(“Status as a pro se litigant may be taken into account, but sanctions can be imposed
for any suit that is frivolous.”); Farguson v. Mbank Houston, N.A., 808 F.2d 358, 359
(5th Cir. 1986) (A party’s pro se status does not serve as an “impenetrable shield, for
one acting pro se has no license to harass others, clog the judicial machinery with
meritless litigation, and abuse already overloaded court dockets.”). Rule 11 provides:
By presenting to the court a pleading, written motion, or other paper–whether by
signing, filing, submitting, or later advocating it–an attorney or unrepresented
party certifies that to the best of the person’s knowledge, information and belief,
formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contents are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.

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FED. R. CIV. P. 11(b). If the Court determines, after notice and a reasonable opportunity
to respond, that “Rule 11(b) has been violated, the Court may impose an appropriate
sanction on . . . [a] party that violated the rule . . . .” FED. R. CIV. P. 11(c)(1).
Additionally, the Court may order a party to show cause why his or her conduct has not
violated Rule 11(b). FED. R. CIV. P. 11(c)(3). However, the Court declines to address
the appropriateness of sanctions at this point.
III. Conclusion
Accordingly, the Court DENIES Plaintiff’s “Motion to Amend and Alter the
Memorandum Opinion dated Feb 28, 2013.” [Doc. 27].
The Clerk is directed to mail a copy of this Order to all counsel of record and the
pro se Plaintiff.
DATED: April 12, 2013

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