Merchant v. Bank of America Corporation et al, No. 3:2011cv03002 - Document 17 (S.D. Cal. 2012)
Court Description: ORDER Denying 15 Plaintiff's Motion to Set Aside Judgment. Signed by Judge Thomas J. Whelan on 12/11/2012. (srm)
Download PDF
<![CDATA[
Merchant v. Bank of America Corporation et al Doc. 17 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 TINA MERCHANT, 14 Plaintiff, 15 v. 16 17 CASE NO: 11-CV-3002-W-(NLS) ORDER DENYING PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT [DOC. 15] BANK OF AMERICA CORP., et al., 18 Defendants. 19 20 Pending before the Court is Plaintiff Tina Merchant’s motion to set aside 21 judgment under Federal Rule of Civil Procedure 60(b). Defendants Bank of America 22 Corporation (“BOA”), BAC Home Loan Servicing LP (“BAC”), and Bank of New York 23 Mellon (“BNY”) oppose. 24 The Court decides the matter on the papers submitted and without oral 25 argument. See Civ. L.R. 7.1(d)(1). For the reasons discussed below, the Court 26 DENIES Plaintiff’s motion [Doc. 15]. 27 // 28 // 11cv3002w -1Dockets.Justia.com 1 I. BACKGROUND 2 On April 5, 2006, Plaintiff obtained a mortgage loan from the now-defunct 3 lender MORTGAGEIT for real property located at 3220 Atlas Street, San Diego, 4 California (the “Property”). (FAC [Doc.10] ¶¶ 1, 12.) The loan was secured by a Deed 5 of Trust in favor of MORTGAGEIT, which named Mortgage Electronic Registration 6 Systems, Inc. as beneficiary and Lands America Southland Title as trustee. (Id.¶ 20.) 7 Later, BOA took over as the servicer of the loan. (Id. ¶ 33.) 8 On November 29, 2010, Recontrust Company (“Recontrust”) filed a Notice of 9 Default and Election to Sell under Deed of Trust with the San Diego County Recorder’s 10 Office. (See RJN [Doc. 11-2] Ex. B.) Recontrust then filed a Notice of Trustee’s Sale 11 on March 9, 2011, declaring that a sale would take place on April 1, 2011.(Id. [Doc. 1112 2] Ex. D.) The sale did not go forward. 13 On November 22, 2011, Plaintiff filed this lawsuit in the San Diego Superior 14 Court. On December 22, 2011, Defendants removed the action to this Court under 15 diversity and federal question jurisdiction. Thereafter, Defendants filed a motion to 16 dismiss the complaint. On May 10, 2012, this Court granted-in-part and denied-in-part 17 the motion, and granted leave to amend. (See 5/10/12 Order [Doc. 8].) 18 On May 29, 2012, Plaintiff filed the FAC. On June 15, 2012, Defendants filed 19 another motion to dismiss. Plaintiffs never filed an opposition to that motion, and on 20 July 31, 2012, this Court granted the motions to dismiss the FAC based on Plaintiffs’ 21 failure to oppose. (See Dismissal Order [Doc. 13].) Plaintiffs now seek to set aside the 22 Dismissal Order. 23 II. ANALYSIS 24 Federal Rule of Civil Procedure 60(b)(1) permits a court to “relieve a party or its 25 legal representative from a final judgment, order, or proceeding” on grounds of 26 “mistake, inadvertence, surprise, or excusable neglect.” As the Ninth Circuit has 27 recognized, “Rule 60(b) is remedial in nature and . . . must be liberally applied.” TCI 28 Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (quoting Falk v. 11cv3002w -2- 1 Allen, 739 F.2d 461, 463 (9th Cir. 1984)). Relief under rule 60(b), however, is not a 2 matter of right, and courts have discretion whether to grant it. See Carter v. United 3 States, 973 F.2d 1479, 1489 (9th Cir. 1992.) 4 Where relief from default judgment is sought on the ground of “excusable 5 neglect,” all relevant circumstances must be taken into account in determining whether 6 neglect was “excusable.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. 7 Partnership, 507 U.S. 380, 395 (1993). The determination of whether a party’s 8 inaction in a case constitutes excusable neglect is “at bottom an equitable one, taking 9 account of all relevant circumstances surrounding the party’s omission,” including (1) 10 “the danger of prejudice to the [non-moving party],” (2) “the length of the delay and 11 its potential impact on judicial proceedings,” (3) “the reason for the delay, including 12 whether it was within the reasonable control of the movant,” and (4) “whether the 13 movant acted in good faith.” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381-82 14 (9th Cir. 1997) (quoting Pioneer Inv. Servs. Co., 507 U.S. at 391). These four factors 15 are not an exclusive list, but provide a framework with which to determine whether 16 missing a filing deadline constitutes “excusable neglect.” Id. at 381. 17 Plaintiffs contend that the Dismissal Order should be set aside due to “excusable 18 neglect” because their “counsel’s failure to file a timely response to Defendants’ Motion 19 to Dismiss Plaintiffs’ First Amended Complaint was not as a result of Plaintiffs’ counsel’s 20 culpable conduct as she was not aware that Defendants even filed a Motion to Dismiss 21 Plaintiffs’ First Amended Complaint.” (Set Aside Mt. [Doc. 15], 7:10–13.) The Court 22 is not persuaded. 23 Defendants have not contested the Plaintiff’s claim that “[s]etting aside the 24 judgment in this case would not prejudice the Defendants but restore the parties to an 25 even footing in the litigation and allow the case to be determined on the merits.” (Set 26 Aside Mt. [Doc. 15], 7:26–28.) Moreover, Defendants do not refute Plaintiff’s claim 27 28 11cv3002w -3- 1 that setting aside the judgment here will not meaningfully delay the proceedings. (See 2 Id. at 7:28-8:2). Thus, the first two factors favor Plaintiff1. 3 Plaintiff’s counsel’s claim that “she was not aware that Defendants even filed a 4 Motion to Dismiss” is difficult to reconcile with the relevant facts. When BOA filed 5 its motion, Plaintiff’s counsel was registered with CM/ECF, the court’s electronic 6 notification system. As a result, Plaintiff’s counsel was automatically electronically 7 served with BOA’s motion to dismiss. See Civ. L.R. 5.4 (c). Indeed, the CM/ECF 8 electronic receipt on the docket confirms that Plaintiff’s counsel was served with the 9 motion on June 15 at 4:01 p.m. at the same email address (e.g., 10 veronica@vaguilarlaw.com) as BOA’s previous motion to dismiss, which was 11 electronically served on December 29, 2011 at 3:44 p.m. to which Plaintiff responded. 12 Finally, assuming Plaintiff’s counsel did not receive the electronically served version 13 of BOA’s motion, BOA’s proof of service confirms that she was served with a copy of 14 the motion by regular U.S. mail. (See Proof of Serv. [Doc. 11-1], 20.) Plaintiff has 15 provided no explanation as to why she did not receive the court’s electronic notification 16 of BOA’s motion or the copy of the motion served by regular U.S. mail. 17 In addition, Plaintiff’s counsel’s claimed lack of “culpability” cannot be reconciled 18 by her presumed knowledge of the normal pleading deadlines applicable to civil cases. 19 Federal Rule of Civil Procedure 15(a)(3) requires a defendant to respond to an 20 amended pleading “within the time remaining to respond to the original pleading or 21 within 14 days after service of the amended pleading, whichever is later.” Plaintiff’s 22 FAC was filed on May 29, 2012 (see FAC [Doc. 10]). Under Rule 15(a)(3), 23 Defendants’ responsive pleading was clearly due by the end of June 2012. Assuming (1) 24 that Plaintiff’s counsel was keeping track of deadlines in this case and (2) that she did 25 26 1 Unfortunately, neither Plaintiff nor Defendants cite Pioneer or Briones in their papers and fail to discuss any of the equitable factors for evaluating a 60(b) motion outlined therein 27 in any detail. Nonetheless, this Court has construed both parties arguments to address 28 these equitable factors. 11cv3002w -4- 1 not believe BOA had filed the motion to dismiss, Plaintiff’s counsel should have 2 believed that by July 1, 2012, BOA had failed to respond to the FAC. Yet, as of July 31, 3 2012, Plaintiff’s counsel had apparently done nothing to determine whether BOA had 4 responded to the FAC. For these reasons, the Court finds that the third factor heavily 5 favors Defendants as Plaintiff has failed to provide any reason as to why Plaintiff’s 6 counsel did not receive notice of BOA’s motion to dismiss, and thus has failed to 7 provide a sufficient and credible reason for failing to file an opposition to BOA’s 8 motion. 9 Finally, Plaintiff argues that her counsel’s failure to timely respond to BOA’s 10 motion to dismiss was not in bad faith because she was not aware that Defendants even 11 filed a motion to dismiss. (Set Aside Mt. [Doc. 15, 7:3-15].) However, as previously 12 mentioned, Plaintiff has provided no credible explanation in her moving papers as to 13 why she was unaware of the pending motion. In addition, in opposition, Defendants 14 allege that it is “likely that Plaintiff’s counsel did in fact receive Defendants’ motion to 15 dismiss via CM/ECF, but failed to file a timely opposition.” (Opp’n [Doc. 16, 3:9-10].) 16 The Court construes this as an allegation of bad faith, as it directly contradicts 17 Plaintiff’s claim that she had no idea a motion was filed and instead suggests that 18 Plaintiff failed to respond on purpose. Plaintiff did not file a reply refuting this claim. 19 Thus, the Court finds that the fourth factor favors Defendants. 20 Despite the fact that Plaintiff has shown that setting aside the judgment would 21 not prejudice the Defendants and not materially delay proceedings, this Court finds 22 Plaintiff’s inability to articulate a credible reason for missing its deadline to respond and 23 failure to respond to Defendants’ allegation of bad faith dispositive here. Simply stating 24 that counsel did not know about a pending motion, without an explanation as to why 25 counsel was unaware of the motion, is not enough to carry Plaintiff’s burden. 26 // 27 // 28 // 11cv3002w -5- 1 III. CONCLUSION 2 For the reasons discussed above, Plaintiff’s motion to set aside [Doc. 15] is 3 DENIED. 4 IT IS SO ORDERED. 5 6 7 8 DATED: December 11, 2012 Hon. Thomas J. Whelan United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11cv3002w -6-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
