United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Court previously issued a Memorandum Opinion and Order in
this case on August 19, 2016. dismissing three counts in
Plaintiffs" Complaint without prejudice, with a fourth
count dismissed with prejudice. Plaintiffs were given
fourteen days to file an amended complaint and were then
granted an extension until September 23. 2016. More than five
months passed without any additional filings from Plaintiffs
and the Court issued an Order on March 3. 2017. dismissing
the case with prejudice. ECF No. 18. On March 10. 2017.
Plaintiffs (lied the presently pending Motion for Extension
of Time to Amend and Replace Counsel. ECF No. 19.
Plaintiffs" counsel also filed a Motion to Withdraw as
Attorney. ECF No. 22. and a Motion to Expedite Withdrawal of
Attorney. ECF No. 24. No hearing is necessary. See
Loc. R. 105.6 (D. Md. 2016). Plaintiffs Motion for an
Extension is denied, and the remaining motions are denied as
Seyed and Mary Moussavi originally filed a four-count
Complaint in this Court against Defendants JP Morgan Chase
Bank N.A.. Chase Loan Servicing, and Hudson City Savings
Bank, alleging i) mortgage fraud, ii) common law fraud, iii)
violation of the Maryland Consumer Protection Act, Md. Code.
Com, Law § 13-101 et seq., and iv) violation of
the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq. ECF No. 1. The Court issued an Opinion on
August 19. 2016, dismissing the first three counts without
prejudice, and the fourth count with prejudice. ECF No. 14.
The Court allowed Plaintiffs fourteen days to file an Amended
Complaint. ECF No. 15. The parties jointly moved for a
three-week extension of time on September 2. 2016, stating
that "[t]he parties are discussing a potential
resolution of this matter." and "[t]he parties
believe the requested extension will facilitate these
discussions." ECF No. 16 at 1. The Court issued a Paperless
Order granting the motion and extended the deadline for
Plaintiffs to file an Amended Complaint to September 23.
2016. ECF No. 17. After more than five months elapsed without
the filing of an Amended Complaint, an additional request for
extension of time, or any activity of any kind on the docket,
the Court dismissed the case with prejudice on March 3. 2017.
ECF No. I8.
the Court's final order was entered. Plaintiffs filed a
motion on March 10. 201 7. requesting an "extension of
time to amend and replace counsel." ECF No. 19.
Plaintiffs stated that they had originally sought an
extension of time "because it was expected that the
parties would either settle this case or amend the complaint,
if settlement negotiations fail." ECF No. 19 ¶ 2.
They further asserted in their Motion that the purpose of the
settlement negotiations were to obtain a loan modification
from Defendants, but "despite Moussavi's
counsel's numerous efforts to pressure the [D]efendants
to be expeditious with their loan modification process
because of litigation, the Defendants took well over 6 months
to consider Moussavi for a loan modification."
Id. ¶ 4. Plaintiffs now wish to "proceed
with the case and replace counsel." Id. ¶
7; see also ECF No. 22; KCF No. 24/ Defendants
oppose the Motion for Extension of Time, arguing that time to
amend the Complaint has expired and amendment would be
futile. ECF No.20.
motion to extend time filed after the passing of a deadline
would typically be governed by Federal Rule of Civil
Procedure 6(b). But in addition to being filed post-dead I
inc. Plaintiffs' motion was also filed post-judgment.
Thus, to even entertain Plaintiffs motion to extend time.
and. ultimately, to amend the complaint, the Court would
first have to vacate its judgment pursuant to Fed.R.Civ.P.
59(e) or 60(b). See Calvary Christian Ctr. v. City of
Fredericksburg, Va., 710 F.3d 536. 539 (4th Cir. 2013)
(addressing post-judgment motion to amend).
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pae. his. Co. v.
Am. Nat 7 Fire Ins. Co.. 148 F.3d 396. 403 (4th
Cir. 1 998). (citation omitted). Under Rule 59(e), a party
may to file a motion to alter or amend a judgment no later
than 28 days after the entry of the judgment. Fed.R.Civ.P.
59(e): see also Ford v. United States. No.
GJH-11-3039. 2016 WL 3430673. at *1 (D. Md. Mar. 16. 2016).
The Court may alter or amend an earlier judgment only
"(1) to accommodate an intervening change in controlling
law: (2) to account for new evidence not available at trial:
or (3) to correct a clear error of law or prevent manifest
injustice." United Slates ex rel. Becker v.
Westinghouse Savannah River Co.. 305 F.3d 284. 290 (4th
Cir. 2002) (citing Pac. Ins. Co., 148 F.3d at 403).
Under Rule 60(b). the Court may relieve a party from an
adverse judgment if the party shows (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 a new trial; (3)
fraud, misrepresentation, or misconduct by an opposing party:
(4) the judgment is void: (5) the judgment has been
satisfied, released- or discharged, is no longer equitable,
or (6) any other reason that justifies relief. Fed.R.Civ.P.
60(b): see also Robinson v. Wix Filtration Corp.
LLC. 599 F.3d 403. 411 (4th Cir. 2010).
the Fourth Circuit has made clear that in cases of requests
to amend the complaint, "[t]o determine whether vacatur
is warranted ., . the court need not concern itself with
either of those rules' legal standards. The court need
only ask whether the amendment should be granted, just as it
would on a prejudgment motion to amend pursuant to
Fed.R.Civ.P. 15(a)." Katyh v. Perm Nat. Gaming.
Inc.. 637 F.3d 462. 471 (4th Cir. 2011). Here, had
Plaintiffs tiled their motion for extension of time to amend
prejudgment, the motion would have been denied pursuant to
Federal Rule of Civil Procedure 6(b)(1 KB).
6(b)(1) states that "when an act may or must be done
within a specified time, the court may. for good cause,
extend the time: ... (B) on motion made after the time has
expired if the party failed to act because of excusable
neglect." Fed.R.Civ.P. 6(b)(1). Thus, because Plaintiffs
did not tile the motion to extend time until after time
expired, they must demonstrate excusable neglect.
"Excusable neglect is not easily demonstrated."
Martinez v. United Stales. 578 F.App'x 192. 194
(4th Cir. 2014). "A party that fails to act with
diligence will be unable to establish that [its] conduct
constituted excusable neglect." Robinson v. IVix
Filtration Corp.. LLC. 599 F.3d 403, 413 (4th Cir. 2010)
(interpreting excusable neglect in the context of Federal
Rule of Civil Procedure 60(b)(1)). Indeed, "'[a]
district court should find excusable neglect only in the
extraordinary cases where injustice would otherwise
result."" Ward v. Branch Banking &
Trust Co., No. CV ELH-13-1968, 2016 WL 4492706. at *5
(D. Md. Aug. 25. 2016) (quoting Thompson v. E.I. Dupont
de Nemours & Co.. 76 F.3d 530. 532 (4th Cir 1996))
(emphasis in Thompson). "[A] mere concession of
palpable oversight or administrative failure generally has
been held to fall short of the necessary showing."
Plaintiffs claim that the failure to amend the complaint was
due to on-going but failed settlement discussions. ECF No. 19
at 1. But there is nothing extraordinary about such a
circumstance and Plaintiffs acknowledge that their excuse,
ultimately, is no more than palpable oversight or
administrative failure, as they concede that "[w]e
should have asked the court to stay the case." ECF No.
21-1 at 1. In short, failed settlement discussions do not
excuse noncompliance with the Court's deadlines,
considering that Plaintiffs could have requested additional
extensions of time or a stay of the case, if necessary, but
instead, merely allowed the case to remain dormant for over
five months, until the Court sua sponte issued its dismissal
order. Therefore, the Court will deny Plaintiffs' Motion.
foregoing reasons, the Motion for Extension of Time to Amend
and Replace Counsel, ECF No. 19. is denied. The Motion to
Withdraw as Attorney. ECF No. 22. and Motion to Expedite
Withdrawal of Attorney. ...