-MAN Esther Enunwaonye v. Aurora Loan Services LLC et al, No. 2:2011cv00879 - Document 67 (C.D. Cal. 2012)
Court Description: ORDER DENYING Plaintiff's Motion for Reconsideration 64 by Judge Otis D Wright, II. Because Plaintiff has failed to establish a material change of facts or law, a manifest showing that the Court failed to consider facts to support his position , or any other "highly unusual circumstances" warranting reconsideration of the Court's 2/14/2012 Order, and because Plaintiff has failed to demonstrate excusable neglect under FRCP 60(b)(1), the Court DENIES Plaintiff's Motion for Reconsideration in its entirety. (jp)
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-MAN Esther Enunwaonye v. Aurora Loan Services LLC et al Doc. 67 1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ESTHER ENUNWAONYE, 11 Case No. CV 11-00879-ODW (MANx) Plaintiff, 12 Order DENYING Plaintiff’s Motion for Reconsideration [64] v. 13 14 15 16 AURORA LOAN SERVICES LLC; AURORA BANK FSB; QUALITY LOAN SERVICE CORPORATION; SBMC MORTGAGE, GENERAL PARTNERSHIP; and DOES I-XX, Inclusive, 17 Defendants. 18 19 Pending before the Court is Plaintiff Esther Enunwaonye’s (“Plaintiff”) Motion 20 21 for Reconsideration. (Dkt. No. 64.) On February 14, 2012, the Court granted 22 Defendants Aurora Loan Services LLC and Aurora Bank FSB’s (collectively 23 “Defendants”) Motion to Dismiss Plaintiff’s Third Amended Complaint. (Dkt. No. 24 69.) After careful consideration of the papers filed in support of and in opposition to 25 the instant Motion, the Court deems the matter appropriate for decision without oral 26 argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons discussed below, 27 Plaintiff’s Motion is DENIED. 28 /// Dockets.Justia.com I. 1 BACKGROUND 2 This Court dismissed Plaintiff’s original and First Amended Complaints on the 3 merits following Plaintiff’s failure to file a timely opposition to Defendants’ motions 4 to dismiss pursuant to Local Rule 7-9. (Dkt. Nos. 14, 42, 56.) While Plaintiff 5 successfully filed an opposition to Defendants’ motion to dismiss her Second 6 Amended Complaint, the Court again dismissed Plaintiff’s amended pleadings for 7 failure to state a claim. (Dkt. Nos. 56.) 8 Plaintiff filed her Third Amended Complaint (“TAC”) on December 28, 2011. 9 (Dkt. No. 58.) Once again, Defendants moved to dismiss Plaintiff’s Complaint, and 10 once again Plaintiff failed to file a timely opposition to Defendants’ motion. 11 Nevertheless, the Court again considered the merits of Defendants’ motion and found 12 that Plaintiff’s TAC similarly failed to survive scrutiny under Rule 12(b)(6). Upon 13 determination that further attempts to amend her pleadings would be futile, the Court 14 dismissed Plaintiff’s TAC with prejudice. (Dkt. No. 63 (citing AE ex rel. Hernandez 15 v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (“A district court abuses its 16 discretion by denying leave to amend unless amendment would be futile or the 17 plaintiff has failed to cure the complaint’s deficiencies despite repeated 18 opportunities.”))). 19 On February 24, 2012, Plaintiff filed the instant Motion for Reconsideration 20 (Dkt. No. 64), to which Defendants filed an Opposition on March 12, 2012 (Dkt. No. 21 66). Plaintiff seeks relief under Federal Rules of Civil Procedure 59 and 60, arguing, 22 among other things, that she has a meritorious defense to Defendant’s Motion to 23 Dismiss, that she can plead additional facts supporting her claims, and the late filing 24 of her opposition was due to the mistake, inadvertence, or excusable neglect of her 25 counsel. (Mot at 2.) 26 II. LEGAL STANDARD 27 “Although Rule 59(e) permits a district court to reconsider and amend a 28 previous order, the rule offers an extraordinary remedy, to be used sparingly in the 2 1 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. 2 Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks 3 omitted). 4 unusual circumstances, unless the district court is presented with newly discovered 5 evidence, committed clear error, or if there is an intervening change in the controlling 6 law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 7 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th 8 Cir. 1999)). Furthermore, a motion “may not be used to raise arguments or present 9 evidence for the first time when they could reasonably have been raised earlier in the 10 litigation.” 11 “[A] motion for reconsideration should not be granted, absent highly omitted). 12 13 Marlyn Nutraceuticals, 571 F.3d at 880 (internal quotation marks Pursuant to Local Rule 7-18, a motion for reconsideration may be made only on the grounds of 14 (a) a material difference in fact or law from that 15 presented to the Court before such decision that in the 16 exercise of reasonable diligence could not have been known 17 to the party moving for reconsideration at the time of such 18 decision, or (b) the emergence of new material facts or a 19 change of law occurring after the time of such decision, or 20 (c) a manifest showing of a failure to consider material facts 21 presented to the Court before such decision. No motion for 22 reconsideration shall in any manner repeat any oral or 23 written argument made in support of or in opposition to the 24 original motion. 25 In analyzing Federal Rule of Civil Procedure 60(b)(1), “[t]he determination of 26 whether neglect is excusable ‘is at bottom an equitable one, taking account of all 27 relevant circumstances surrounding the party’s omission.’” Lemoge v. United States, 28 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick 3 1 Assoc. L.P., 507 U.S. 380, 395 (1993)). “To determine when neglect is excusable, 2 [the district court must] conduct the equitable analysis specified in Pioneer by 3 examining ‘at least four factors: (1) the danger of prejudice to the opposing party; (2) 4 the length of the delay and its potential impact on the proceedings; (3) the reason for 5 the delay [or other error, including whether it was within the reasonable control of the 6 movant]; and (4) whether the movant acted in good faith.’” Id. (quoting Bateman v. 7 U.S. Postal Serv., 231 F.3d 1220, 1223–24 (9th Cir. 2000)). The above factors are not 8 exclusive, but “provide a framework with which to determine whether missing a filing 9 deadline constitutes ‘excusable’ neglect.” Briones v. Riviera Hotel & Casino, 116 10 F.3d 379, 381 (9th Cir. 1997). III. 11 DISCUSSION Plaintiff’s Motion for Reconsideration seeks relief under both Federal Rule of 12 13 Civil Procedure 59 and 60(b)(1). The Court will discuss the applicability of Plaintiff’s 14 requested relief under each rule in turn. 15 A. RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 59 16 Plaintiff requests that the Court reconsider its February 14, 2012 Order under 17 Federal Rule of Civil Procedure 59 and amend the Court’s Order to permit Plaintiff 18 leave to amend her fraud and wrongful foreclosure claims. (Mot at 5–6.) Plaintiff 19 also seeks leave to amend to allege her willingness to tender her loan proceeds. (Mot. 20 at 5.) However, Plaintiff neither offers new facts or law of “material difference” that 21 were not previously ascertainable through the “exercise of reasonable diligence” nor 22 demonstrates how the Court “fail[ed] to consider material facts” in making its decision 23 to dismiss Plaintiff’s TAC for the same infirmities pervading this litigation. See C.D. 24 Cal. L.R. 7-18. Instead, Plaintiff merely rehashes arguments the Court has already 25 considered, which is flatly insufficient to meet the rigorous demands for 26 reconsideration under Rule 59. Accordingly, Plaintiff’s Motion for Reconsideration 27 under Rule 59 is DENIED. 28 /// 4 1 B. RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 60 2 Plaintiff also seeks relief from the Court’s February 14, 2012 Order under 3 Federal Rule Civil Procedure 60(b)(1), citing her counsel’s excusable neglect for her 4 failure to timely file an opposition. (Mot. at 3.) Consideration of the Pioneer factors 5 reveals that Plaintiff’s neglect was not excusable. The Court finds that the first factor, 6 the danger of prejudice to the opposing party, favors Defendant. On one hand, if relief 7 is granted, Defendant will be forced to litigate claims that potentially have no merit, as 8 Plaintiff’s repeated failure to adequately state a claim has revealed. (See Dkt. Nos. 14, 9 42, 56, 63.) On the other hand, Courts should liberally construe Rule 60 to allow for 10 the just determination of cases on the merits. Rodgers v. Watt, 722 F.2d 456, 459-60 11 (9th Cir. 1983). In balancing the two, the Court finds that forcing Defendant to 12 continue this seemingly futile motion practice would be more prejudicial than not; 13 thus, this factor weighs in favor of Defendant. 14 The second Pioneer factor addresses the length of delay and its potential impact 15 on the proceeding. While Plaintiff filed her Motion for Reconsideration ten days after 16 the Court dismissed her case for the fourth time, thus resulting in minimal delay, the 17 Court deems it appropriate to also consider the previous delays caused by Plaintiff’s 18 neglect in failing to timely file an opposition. Plaintiff has now twice failed to file an 19 opposition to Defendants’ motions to dismiss at all and filed one opposition late, 20 which has significantly delayed the progress of this case. (See Dkt. Nos. 14, 42, 63.) 21 Because excusable neglect is an equitable doctrine, the Court must “take into account 22 all relevant circumstances surrounding the party’s omission.” Pioneer, 507 U.S. at 23 394. As a result, the Court finds that this delay, coupled with the previous delays 24 caused by Plaintiff’s sheer neglect, leave this factor heavily in favor of Defendant. 25 As to the third factor, the reason for the delay, Plaintiff’s incorrect calendaring 26 of the motion dates falls within the boundaries of excusable neglect as espoused by the 27 Pioneer Court and Ninth Circuit precedent. Although not particularly compelling, 28 Plaintiff’s clerical error is simply one “in which the failure to comply with a filing 5 1 deadline is attributable to negligence.” Id. Furthermore, the Ninth Circuit has been 2 generous in its application of Pioneer and has extended relief under 60(b)(1) in 3 situations where attorney neglect was no more than carelessness. See Ahanchian v. 4 Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (finding a calendaring 5 mistake as excusable neglect); see also In re Hawaiian Airlines, Inc., Cv. No. 08- 6 00405 DAE-BMK, 2011 WL 1483923, at *5 (D. Haw. Apr. 18, 2011) (collecting 7 cases in which “the Ninth Circuit has found excusable neglect when experienced law 8 firms and attorneys have missed filing deadlines”). However, Plaintiff’s counsel 9 should have been aware when taking this case that it had been dismissed on two 10 previous occasions for failure to file an opposition. Given these circumstances, 11 Plaintiff’s counsel should have taken an abundance of caution to ensure that his 12 opposition was timely filed, but failed to manage this task. Thus, the Court finds that 13 this factor only slightly favors Plaintiff. 14 Finally, in addressing the fourth factor, whether the movant acted in good faith, 15 the Court finds no indication that Plaintiff has engaged in any conduct that could be 16 construed as bad faith. See Bateman, 231 F.3d at 1225 (noting that negligence and 17 carelessness do not amount to bad faith). Thus, this factor weighs in favor of Plaintiff. 18 In conclusion, the Court finds that the Pioneer factors mitigate towards denying 19 relief from dismissal of Plaintiff’s case. The Court therefore DENIES Plaintiff’s 20 Motion for Reconsideration under Federal Rule of Civil Procedure 60(b)(1). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 IV. 1 CONCLUSION 2 Because Plaintiff has failed to establish a material change of facts or law, a 3 manifest showing that the Court failed to consider facts to support his position, or any 4 other “highly unusual circumstances” warranting reconsideration of the Court’s 5 February 14, 2012 Order, and because Plaintiff has failed to demonstrate excusable 6 neglect under Federal Rule of Civil Procedure 60(b)(1), the Court DENIES Plaintiff’s 7 Motion for Reconsideration in its entirety. 8 IT IS SO ORDERED. 9 10 March 21, 2012 11 12 13 ____________________________________ HON. OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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