The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the "Application to Set Aside Order to Dismiss Action Dated March 12, 2009 and Clerk's Judgment" (Doc. # 27).
This action arises out of the foreclosure on Plaintiff's home. On July 15, 2008, Plaintiff initiated this action by filing the complaint (Doc. # 1). The complaint alleged that the "basis for suit is failure to comply with [Plaintiff's] lawful demand to validate the alleged debt in good faith and fair dealing" in violation of the Rosenthal Fair Debt Collection Practices Act under California law, Cal. Civ. Code § 1788, et seq. ("RFDCPA"), and the Fair Debt Collection Practices Act under federal law, 15 U.S.C. § 1692 ("FDCPA"). Id., ¶ 5. Plaintiff thereafter filed three motions for temporary restraining order (Docs. # 3, 19, 13), all of which the Court denied (Docs. # 7, 10, 14). On November 3, 2008, this Court issued an order granting Defendants' motion to dismiss (Doc. # 18). The Court held that the complaint failed to allege facts sufficient to support a claim on which relief could be granted, and granted Plaintiff leave to file an amended complaint. On November 26, 2008, Plaintiff filed a first amended complaint (Doc. # 20). The first amended complaint alleged causes of action for injunctive relief, statutory damages, quiet title, and declaratory relief. In support of the cause of action for statutory damages, the first amended complaint alleged that Defendants violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. 2605; the FDCPA; the RFDCPA; 12 U.S.C. section 1831(2)(A); the Truth in Lending Act ("TILA"), 15 U.S.C. section 1601, et seq.; and the following California state laws: "1) Business and Professions Code 17200 for unfair and deceptive business practices; 2) unjust enrichment; 3) breach of fiduciary duty; 4) conversion; 5) negligence . . . 6) violations of the California Consumer Protection Act; 7) violations of California Civil Code 2943 for not supplying Payoff Demand Statements." FAC, ¶ 93. On March 12, 2009, this Court issued an order granting Defendants' unopposed motion to dismiss the first amended complaint, and dismissing the case (Doc. # 22). On March 13, 2009, judgment was entered in favor of Defendants and against Plaintiff (Doc. # 23).
On April 21, 2009, Plaintiff filed the "Application to Set Aside Order to Dismiss Action Dated March 12, 2009 and Clerk's Judgment" ("Ex Parte Motion"). Plaintiff requests that the Court set aside the March 12, 2009 order granting the motion to dismiss the first amended complaint and the March 13, 2009 judgment on grounds that Plaintiff never received the motion to dismiss the first amended complaint. Plaintiff states: "due process demands that the matter be reopened, since Plaintiff did not receive Defendants [sic] motion to dismiss documents and recently learned this matter was inadvertently dismissed after her non response to Defendant's motion to dismiss." Ex Parte Motion, p. 4. In support of the Ex Parte Motion, Plaintiff submitted her declaration. Plaintiff attests that she never received the motion to dismiss the first amended complaint. Ines Decl., ¶ 4.
On April 27, 2009, Defendants filed a response in opposition to the Ex Parte Motion (Doc. # 28). Defendants state:
Plaintiff does not explain how or why she believes she failed to receive the envelope containing Defendants' Motion to Dismiss her First Amended Complaint, when she has been receiving all of the other mail in this action addressed to her at that address, nor does Plaintiff provide any credible evidence to refute the Certificate of Service executed under penalty of perjury by counsel for Defendants.
Id. at 3. Defendants emphasize that the Court's order dismissing the first amended complaint was based upon the merits of the motion to dismiss, not the fact that Plaintiff did not submit any opposition to the motion. Defendants assert that Plaintiff has filed to demonstrate unusual circumstance warrant reopening of her case, as required by Rule 60(b) of the Federal Rules of Civil Procedure.
Rule 60(b) of the Federal Rules of Civil Procedure provides for relief 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 ...