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Tina Merchant v. Bank of America Corp.

December 11, 2012


The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge


Pending before the Court is Plaintiff Tina Merchant's motion to set aside judgment under Federal Rule of Civil Procedure 60(b). Defendants Bank of America Corporation ("BOA"), BAC Home Loan Servicing LP ("BAC"), and Bank of New York Mellon ("BNY") oppose.

The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons discussed below, the Court DENIES Plaintiff's motion [Doc. 15].


On April 5, 2006, Plaintiff obtained a mortgage loan from the now-defunct lender MORTGAGEIT for real property located at 3220 Atlas Street, San Diego, California (the "Property"). (FAC [Doc.10] ¶¶ 1, 12.) The loan was secured by a Deed of Trust in favor of MORTGAGEIT, which named Mortgage Electronic Registration Systems, Inc. as beneficiary and Lands America Southland Title as trustee. (Id.¶ 20.) Later, BOA took over as the servicer of the loan. (Id. ¶ 33.)

On November 29, 2010, Recontrust Company ("Recontrust") filed a Notice of Default and Election to Sell under Deed of Trust with the San Diego County Recorder's Office. (See RJN [Doc. 11-2] Ex. B.) Recontrust then filed a Notice of Trustee's Sale on March 9, 2011, declaring that a sale would take place on April 1, 2011.(Id. [Doc. 11-2] Ex. D.) The sale did not go forward.

On November 22, 2011, Plaintiff filed this lawsuit in the San Diego Superior Court. On December 22, 2011, Defendants removed the action to this Court under diversity and federal question jurisdiction. Thereafter, Defendants filed a motion to dismiss the complaint. On May 10, 2012, this Court granted-in-part and denied-in-part the motion, and granted leave to amend. (See 5/10/12 Order [Doc. 8].)

On May 29, 2012, Plaintiff filed the FAC. On June 15, 2012, Defendants filed another motion to dismiss. Plaintiffs never filed an opposition to that motion, and on July 31, 2012, this Court granted the motions to dismiss the FAC based on Plaintiffs' failure to oppose. (See Dismissal Order [Doc. 13].) Plaintiffs now seek to set aside the Dismissal Order.


Federal Rule of Civil Procedure 60(b)(1) permits a court to "relieve a party or its legal representative from a final judgment, order, or proceeding" on grounds of "mistake, inadvertence, surprise, or excusable neglect." As the Ninth Circuit has recognized, "Rule 60(b) is remedial in nature and . . . must be liberally applied." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)). Relief under rule 60(b), however, is not a matter of right, and courts have discretion whether to grant it. See Carter v. United States, 973 F.2d 1479, 1489 (9th Cir. 1992.)

Where relief from default judgment is sought on the ground of "excusable neglect," all relevant circumstances must be taken into account in determining whether neglect was "excusable." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). The determination of whether a party's inaction in a case constitutes excusable neglect is "at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission," including (1) "the danger of prejudice to the [non-moving party]," (2) "the length of the delay and its potential impact on judicial proceedings," (3) "the reason for the delay, including whether it was within the reasonable control of the movant," and (4) "whether the movant acted in good faith." Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381-82 (9th Cir. 1997) (quoting Pioneer Inv. Servs. Co., 507 U.S. at 391). These four factors are not an exclusive list, but provide a framework with which to determine whether missing a filing deadline constitutes "excusable neglect." Id. at 381.

Plaintiffs contend that the Dismissal Order should be set aside due to "excusable neglect" because their "counsel's failure to file a timely response to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint was not as a result of Plaintiffs' counsel's culpable conduct as she was not aware that Defendants even filed a Motion to Dismiss Plaintiffs' First Amended Complaint." (Set Aside Mt. [Doc. 15], 7:10--13.) The Court is not persuaded.

Defendants have not contested the Plaintiff's claim that "[s]etting aside the judgment in this case would not prejudice the Defendants but restore the parties to an even footing in the litigation and allow the case to be determined on the merits." (Set Aside Mt. [Doc. 15], 7:26--28.) Moreover, Defendants do not refute Plaintiff's claim that setting aside the judgment here will not meaningfully delay the proceedings. (See Id. at 7:28-8:2). Thus, the first two factors favor Plaintiff*fn1 .

Plaintiff's counsel's claim that "she was not aware that Defendants even filed a Motion to Dismiss" is difficult to reconcile with the relevant facts. When BOA filed its motion, Plaintiff's counsel was registered with CM/ECF, the court's electronic notification system. As a result, Plaintiff's counsel was automatically electronically served with BOA's motion to dismiss. See Civ. L.R. 5.4 (c). Indeed, the CM/ECF electronic receipt on the docket confirms that Plaintiff's counsel was served with the motion on June 15 at 4:01 p.m. at the same email address (e.g., as BOA's previous motion to dismiss, which was electronically served on December 29, 2011 at 3:44 p.m. to which Plaintiff responded. Finally, assuming Plaintiff's counsel did not receive the electronically served version of BOA's motion, BOA's proof of service confirms that she was served with a copy of the motion by ...

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