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Esther Enunwaonye v. Aurora Loan Services LLC; Aurora Bank Fsb; Quality Loan Service

March 21, 2012


The opinion of the court was delivered by: Hon. Otis D. Wright II United States District Judge

Order DENYING Plaintiff's Motion for Reconsideration [64]

Pending before the Court is Plaintiff Esther Enunwaonye's ("Plaintiff") Motion for Reconsideration. (Dkt. No. 64.) On February 14, 2012, the Court granted Defendants Aurora Loan Services LLC and Aurora Bank FSB's (collectively "Defendants") Motion to Dismiss Plaintiff's Third Amended Complaint. (Dkt. No. 69.) After careful consideration of the papers filed in support of and in opposition to the instant Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons discussed below, Plaintiff's Motion is DENIED.


This Court dismissed Plaintiff's original and First Amended Complaints on the merits following Plaintiff's failure to file a timely opposition to Defendants' motions to dismiss pursuant to Local Rule 7-9. (Dkt. Nos. 14, 42, 56.) While Plaintiff successfully filed an opposition to Defendants' motion to dismiss her Second Amended Complaint, the Court again dismissed Plaintiff's amended pleadings for failure to state a claim. (Dkt. Nos. 56.)

Plaintiff filed her Third Amended Complaint ("TAC") on December 28, 2011. (Dkt. No. 58.) Once again, Defendants moved to dismiss Plaintiff's Complaint, and once again Plaintiff failed to file a timely opposition to Defendants' motion. Nevertheless, the Court again considered the merits of Defendants' motion and found that Plaintiff's TAC similarly failed to survive scrutiny under Rule 12(b)(6). Upon determination that further attempts to amend her pleadings would be futile, the Court dismissed Plaintiff's TAC with prejudice. (Dkt. No. 63 (citing AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) ("A district court abuses its discretion by denying leave to amend unless amendment would be futile or the plaintiff has failed to cure the complaint's deficiencies despite repeated opportunities."))).

On February 24, 2012, Plaintiff filed the instant Motion for Reconsideration (Dkt. No. 64), to which Defendants filed an Opposition on March 12, 2012 (Dkt. No. 66). Plaintiff seeks relief under Federal Rules of Civil Procedure 59 and 60, arguing, among other things, that she has a meritorious defense to Defendant's Motion to Dismiss, that she can plead additional facts supporting her claims, and the late filing of her opposition was due to the mistake, inadvertence, or excusable neglect of her counsel. (Mot at 2.)


"Although Rule 59(e) permits a district court to reconsider and amend a previous order, the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). "[A] motion for reconsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Furthermore, a motion "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Marlyn Nutraceuticals, 571 F.3d at 880 (internal quotation marks omitted).

Pursuant to Local Rule 7-18, a motion for reconsideration may be made only on the grounds of (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. No motion for reconsideration shall in any manner repeat any oral or written argument made in support of or in opposition to the original motion.

In analyzing Federal Rule of Civil Procedure 60(b)(1), "[t]he determination of whether neglect is excusable 'is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assoc. L.P., 507 U.S. 380, 395 (1993)). "To determine when neglect is excusable, [the district court must] conduct the equitable analysis specified in Pioneer by examining 'at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay [or other error, including whether it was within the reasonable control of the movant]; and (4) whether the movant acted in good faith.'" Id. (quoting Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223--24 (9th Cir. 2000)). The above factors are not exclusive, but "provide a framework with which to determine whether missing a filing deadline constitutes 'excusable' neglect." Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997).


Plaintiff's Motion for Reconsideration seeks relief under both Federal Rule of Civil Procedure 59 and 60(b)(1). The Court will discuss the applicability of Plaintiff's requested relief under each rule in turn.


Plaintiff requests that the Court reconsider its February 14, 2012 Order under Federal Rule of Civil Procedure 59 and amend the Court's Order to permit Plaintiff leave to amend her fraud and wrongful foreclosure claims. (Mot at 5--6.) Plaintiff also seeks leave to amend to allege her willingness to tender her loan proceeds. (Mot. at 5.) However, Plaintiff neither offers new facts or law of "material difference" that were not previously ascertainable through the "exercise of reasonable diligence" nor demonstrates how the Court "fail[ed] to consider material facts" in making its decision to dismiss Plaintiff's TAC for the same infirmities pervading this litigation. See C.D. Cal. L.R. 7-18. Instead, Plaintiff merely rehashes arguments the Court ...

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