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Fields v. Nationstar Mortgage LLC

United States District Court, D. Hawaii

September 7, 2016

JANEECE FIELDS, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC; CHARTER CAPITAL CORPORATION; AURORA LOAN SERVICING LLC; AURORA BANK; STRUCTURED ASSETS SECURITIES CORPORATION, aka SASCO; CITIBANK N.A. AS TRUSTEE FOR THE SASCO MORTGAGE PASS-THROUGH CERTIFICATES 2005-17 POOL GROUP 4; LEHMAN BROTHERS HOLDINGS INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, aka MERS; MERSCORP HOLDINGS, INC.; and DOE ENTITIES 1-5O, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION AND DECLARATION TO WITHDRAW PLAINTIFF'S VOLUNTARY DISMISSAL WITHOUT PREJUDICE AND VACATE ORDER DISMISSING LEHMAN BROTHERS FSB AND LEHMAN BROTHERS HOLDINGS INC.

          Leslie E. Kobayashi United States District Judge.

         Before the Court is pro se Plaintiff Janeece Fields's (“Plaintiff”) Motion and Declaration to Withdraw Plaintiff's Voluntary Dismissal Without Prejudice and Vacate Order Dismissing Lehman Brothers FSB and Lehman Brothers Holdings Inc. (“Motion”), filed on August 29, 2016. [Dkt. no. 184.] Because Plaintiff is proceeding pro se, this Court must liberally construe her filings. See, e.g., Pregana v. CitiMortgage, Inc., Civil No.14-00226 DKW-KSC, 2015 WL 1966671, at *2 (D. Hawai`i Apr. 30, 2015) (“The Court liberally construes the [plaintiffs'] filings because they are proceeding pro se.” (citing Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987))).

         I. Motion for Reconsideration

         First, this Court CONSTRUES Plaintiff's Motion as a motion for reconsideration of its April 18, 2016 Order Regarding Responses to March 10, 2016 Order to Show Cause (“4/18/16 Order”). See dkt. no. 156. In the March 10, 2016 Order to Show Cause (“3/10/16 OSC”), [dkt. no. 148, ] this Court ordered Plaintiff to show cause why it should not dismiss her claims against the defendants named in her First Amended Complaint for Fraud & Misrepresentation (“Amended Complaint”) upon whom she had not yet served the Amended Complaint.[1] Among the unserved defendants was Defendant Lehman Brothers Holdings Inc. (“Lehman Brothers Holdings”).[2] On March 31, 2016, Plaintiff filed her response to the 3/10/16 OSC, stating, among other things, that she did not serve Lehman Brothers Holdings and was not pursuing her claims against it because it “could not be found due to [its] business termination.” [Dkt. no. 149 at 2, ¶ 3.] In light of Plaintiff's representation, this Court dismissed Plaintiff's claims against Lehman Brothers Holdings pursuant to Fed.R.Civ.P. 4(m), without prejudice, and directed the Clerk's Office to terminate Lehman Brothers Holdings as a party to this action. [4/18/16 Order at 2.]

         In the instant Motion, Plaintiff asks this Court to vacate the 4/18/16 Order because she “relied on apparently incorrect information about the Lehman Brothers entities being defunct” and she “made a mistake in Motioning the Court dismissing [sic] them.” [Motion at 2.] This Court has previously stated that a motion for reconsideration “must accomplish two goals. First, a motion for reconsideration

must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.” See Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawaii June 2, 2014) (citation and internal quotation marks omitted). This district court recognizes three circumstances where it is proper to grant reconsideration of an order: “(1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice.” Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585, at *1 (D. Hawaii May 1, 2013) (citing School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)). . . .

Riley v. Nat'l Ass'n of Marine Surveyors, Inc., Civil No. 14- 00135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25, 2014).

         The Motion does not argue that there has been an intervening change in the law, and it does not assert that reconsideration is necessary because of clear error or manifest injustice. Plaintiff argues that this Court should reconsider the 4/18/16 Order because of what she contends is newly discovered evidence that Lehman Brothers Holdings is still an operational entity. Whether Plaintiff brings her motion for reconsideration pursuant to Local Rule 60.1 or Fed.R.Civ.P. 60(b)(2), [3]

it makes no difference . . . because the standards are essentially the same. Under Rule 60(b)(2),
[r]elief from judgment on the basis of newly discovered evidence is warranted if (1) the moving party can show the evidence relied on in fact constitutes “newly discovered evidence” within the meaning of Rule 60(b); (2) the moving party exercised due [or reasonable] diligence to discover this evidence; and (3) the newly discovered evidence must be of “such magnitude that production of it earlier would have been likely to change the disposition of the case.”
Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003) (quoting Coastal Transfer Co. v. Toyota Motor Sales, U.S.A., Inc., 833 F.2d 208, 211 (9th Cir. 1987)). Rule 60(b)(2), as amended in 2007, requires “reasonable diligence” (instead of “due diligence”) for newly discovered evidence. The change, however, was “intended to be stylistic only.” See Cole v. Hawaii, 2008 WL 508075, at *1 n.2 (D. Haw. Feb. 26, 2008).

Tagupa v. Vipdesk, Inc., CIV. No. 13-00428 JMS-KSC, 2016 WL 236210, at *2 n.2 (D. Hawai`i Jan. 19, 2016) (some alterations in Tagupa); see also Chapman v. Journal Concepts, Inc., Civil No. 07-00002 JMS/LEK, 2007 WL 4354417, at *2 (D. Hawai`i Dec. 13, 2007) (“To base a motion for reconsideration on the discovery of new evidence, Plaintiff is ‘obliged to show not only that this evidence was newly discovered or unknown until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence at the hearing.'” (quoting Frederick S. Wyle Prof'l Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985))). In addition, this district court “has denied motions seeking reconsideration of orders based on evidence and/or legal arguments that the party seeking reconsideration could have raised in connection with an original motion.” See, e.g., Streamline Consulting Grp. LLC v. Legacy Carbon LLC, CIVIL NO. 15-00318 SOM/KSC, 2016 WL 1064444, at *1 (D. Hawai`i Mar. 16, 2016) (citing Barker v. Gottlieb, 2015 WL 181776 (D. Haw. Jan. 14, 2015)).

         In the instant case, Plaintiff relies on purportedly newly discovered evidence that Lehman Brothers Holdings is still an operational business entity. In support of this position, she states:

Lehman Brothers' FSB was assumed to be defunct since September or October 2008, but may be operating in some capacity. Sometime between 2/25/2014 and 6/24/2015, Rick Skogg, “Secretary” of Lehman Brothers FSB affixed an undated indorsement stamp to an alleged “verified” Note. For Lehman Brothers' FSB to indorse a Note, it is assumed they were functioning in some capacity. That alleged Note and alleged allonge are at issue in this case. If Rick Skogg is “Secretary” of MERS or some other entity, it is omitted on the ...

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