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Silver v. Wells Fargo Bank, N.A.

United States District Court, D. Maryland

August 22, 2017

JEFFREY J. SILVER Plaintiff
v.
WELLS FARGO BANK, N.A., Defendants

          MEMORANDUM AND ORDER RE: RECONSIDERATION MOTIONS

          Marvin J. Garbis, United States District Judge

         The Court has before it Wells Fargo Bank, N.A.'s Motion for Reconsideration With Respect to Count III [ECF No. 56], PNC Bank, National Association's Motion for Reconsideration With Respect to Count III [ECF No. 57], and the materials submitted relating thereto. The Court finds a hearing unnecessary.

         I. BACKGROUND

         This case arises from a check fraud scheme perpetrated by Plaintiff Jeffrey J. Silver's employee. In the course of the scheme, the employee stole, forged, and negotiated checks drawn on Silver's checking account at PNC Bank, National Association (“PNC”) and deposited the proceeds into her own account at Wells Fargo Bank, National Association (“Wells Fargo”), where Silver also maintained accounts.[1] The check fraud scheme went undetected for many years, and Silver now attempts to hold PNC and Wells Fargo (collectively, “Defendants”) responsible for his losses.

         In his Amended Complaint [ECF No. 35], Silver asserted Maryland Uniform Commercial Code[2] and common law claims against Defendants in ten counts. On June 30, 2017, the Court granted in part and denied in part Defendants' Motions to Dismiss the Amended Complaint [ECF Nos. 40 & 43] pursuant to Rule[3] 12(b)(6) of the Federal Rules of Civil Procedure. See Mem. & Order Re: Amended Compl. [ECF No. 53].[4] The Court dismissed Silver's claims in Count II (UCC § 3-417 & § 4-208), Counts IV and V (common law negligence), Count VI (UCC § 4-401), Count VII (negligent hiring and supervision), Count VIII (constructive fraud), Count IX (civil conspiracy), and Count X (UCC § 3-420). The Court allowed Count I (UCC § 3-404 & § 3-405 - lack of ordinary care) and Count III (common law breach of contract) to remain pending.

         By the instant Motions, Defendants request the Court to reconsider its ruling concerning Count III.

         II. LEGAL STANDARDS

         Defendant Wells Fargo did not specify upon what procedural grounds it was making its Motion for Reconsideration, but Defendant PNC labeled its Motion as one pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Rule 105.10 of the Rules of the United States District Court for the District of Maryland (“Local Rules”).

         Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” The Court's Order granting in part and denying in part Defendants' Motions to Dismiss the Amended Complaint was not a “judgment” because it was not “a decree and any order from which an appeal lies.” Fed.R.Civ.P. 54(a). The Order adjudicated fewer than all of the claims presented in the Amended Complaint, so it was not final. Therefore, Rule 59(e) does not provide an appropriate basis for a motion to reconsider. See Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991) (“Fayetteville's motion for reconsideration could not be treated under Rules 60 or 59, as these rules apply only to final judgments . . . .”).

         However, the Court shall treat the instant motions as motions to revise the Court's Order pursuant to Rule 54(b). See id. at 1465 (doing the same); Lopez v. United States, No. PWG-14-2156, 2016 WL 915621, at *1 (D. Md. Mar. 10, 2016)(same).

         A. Rule 54(b)

         Rule 54(b) of the Federal Rules of Civil Procedure provides, in relevant part,

[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54.

         “[A] district court retains the power to reconsider and modify its interlocutory judgments, . . . at any time prior to final judgment when such is warranted.” Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003). “The power to reconsider an order is ‘committed to the discretion of the district court.' In exercising this discretion, courts must be sensitive to ‘concerns of finality and judicial economy.' However, the ‘ultimate responsibility of the federal courts, at all levels, is to reach the correct judgment under law.'” Asher & Simons, P.A. v. j2 Glob. Canada, Inc., 977 F.Supp.2d 544, 546-47 (D. Md. 2013)(internal citations omitted) (quoting Am. Canoe Ass'n, 326 F.3d at 515).

         The Fourth Circuit has not stated a specific standard to guide reconsideration of an interlocutory order, but the standards applicable to Rule 59(e) and Rule 60 can provide guidance even if not binding. See Lopez v. United States, No. PWG-14-2156, 2016 WL 915621, at *2 (D. Md. Mar. 10, 2016)(citing Fayetteville Investors, 936 F.2d at 1472 and Am. Canoe Ass'n, 326 F.3d at 514); see also Cezair v. JPMorgan Chase Bank, N.A., No. CIV.A. DKC 13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014)(applying Rule 59(e) standard).

         A court considers a motion to alter or amend when: “(1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.” Cezair, 2014 WL 4955535, at *1. Although not expressly articulated as such, the grounds of Defendants' Motions are that the Court made an error with respect to Count III.

         The Local Rules for the District of Maryland state: “Except as otherwise provided in Fed.R.Civ.P. 50, 52, 59, or 60, any motion to reconsider any order issued by the Court shall be filed with the Clerk not later than fourteen (14) days after entry of the order.” D. Md. Ct. Local R. 105.10. Wells Fargo's and PNC's Motions for ...


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