United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING MOTION TO FILE
REPLY OUT OF TIME [DKT. NO. 178], DENYING MOTION TO REOPEN
THE CASE [DKT. NO. 176], AND DENYING AS MOOT MOTION TO UNSEAL
[DKT. NO. 176]
M. KEELEY, UNITED STATES DISTRICT JUDGE
before the Court is the plaintiff's combined motion to
reopen the case and motion to unseal the Court's
Memorandum Opinion and Order Denying the Plaintiff's
Motion for Partial Summary Judgment and Denying the
Defendant's Motion for Summary Judgment
(“Memorandum Opinion and Order”). Also pending is
the plaintiff's motion to file a reply brief out of time.
For the reasons that follow, the Court
DENIES the motion to file a reply out of
time (Dkt. No. 178), DENIES the motion to
reopen the case (Dkt. No. 176), and DENIES as
MOOT the motion to unseal (Dkt. No. 176).
case arose from the allegedly abusive loan servicing
practices of the defendant, Ocwen Loan Servicing
(“Ocwen”). The plaintiff, Theodore Hosaflook
(“Hosaflook”), alleged that Ocwen, the servicer
of his home mortgage loan, engaged in abuse loan servicing by
misrepresenting amounts due, by failing to implement a loan
modification agreement, and by refusing to accept his
payments (Dkt. No. 1-1). Following the close of discovery in
the case, the parties filed cross motions for summary
September 17, 2019, the Court entered under seal its
Memorandum Opinion and Order denying summary judgment (Dkt.
No. 166). Shortly thereafter, on September 19, 2018, the
parties filed a joint notice of settlement, advising the
Court that they had fully resolved the case (Dkt. No. 170).
Following a lengthy extension of the deadline for the
submission of a proposed dismissal order, the Court entered
an agreed order dismissing Hosaflook's claims with
prejudice and closing the case on December 27, 2018, more
than three months after being advised that the case had been
resolved (Dkt. No. 175).
two weeks later, on January 9, 2019, Hosaflook filed a
combined motion to reopen the case under Federal Rule of
Civil Procedure 60(b) and motion to lift the seal on the
Court's Memorandum Opinion and Order on summary judgment
(Dkt. No. 176). In support of his motion to reopen the case,
Hosaflook states, in a footnote, that his counsel
“inadvertently presented [the dismissal order] before
the present issue was resolved.” Therefore, his motion
is “appropriate under Rule 60(b)(1) (“mistake,
inadvertence”) and Rule 60(b)(6) (“any other
reason justifying relief”).” Id. at 1 n
1. In support of his simultaneously filed motion to unseal,
Hosaflook argues that the public's access to the
Memorandum Opinion and Order implicates important rights
under the First Amendment of the United States Constitution.
Id. Ocwen timely filed a response in opposition to
both motions on January 23, 2019 (Dkt. No. 177). On February
5, 2019, Hosaflook filed a reply brief six days out of time
(Dkt. No. 179), along with a motion for an extension of
time to file the reply (Dkt. No. 178), which Ocwen has
opposed (Dkt. No. 180). Accordingly, the motions are fully
briefed and ripe for decision.
MOTION TO FILE REPLY OUT OF TIME
preliminary matter, the Court takes up Hosaflook's motion
to file a reply brief six days out of time (Dkt. No. 178).
Federal Rule of Civil Procedure 6(b) gives the Court
discretion to extend a deadline after its passage upon a
showing of “excusable neglect.” Under the law of
the United States Court of Appeals of the Fourth Circuit,
“‘[e]xcusable neglect' is not easily
demonstrated, nor was it intended to be . . . ‘the
burden of demonstrating excusability lies with the party
seeking the extension and a mere concession of palpable
oversight or administrative failure generally has been held
to fall short of the necessary showing . . .'”
Thompson v. E.I. DuPont de Nemours & Co., 76
F.3d 530, 534 (4th Cir.1995) (quoting In re O.P.M.
Leasing Serv., Inc., 769 F.2d 911, 917 (2d Cir. 1985)).
A finding of excusable neglect ultimately comes down to a
balance of the equities, and the decision whether or not to
grant an extension “remains committed to the discretion
of the district court.” Id. at 532 n.2;
see also United States v. Borromeo, 945 F.2d 750,
754 (4th Cir. 1991).
Anderson v. Spencer, No. 5:09CV117, 2011 WL 6748827,
at *2 (N.D. W.Va. Dec. 21, 2011) (Stamp, J.). The factors for
consideration include (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 in the reasonable control of the movant,
” and (4) “whether the movant acted in good
faith.” Pioneer Inv. Servs. v. Brunswick Assocs.
Ltd. P'ship, 507 U.S. 380, 395 (1993). “Quite
obviously, the most important of these factors in deciding
whether the ‘neglect' was ‘excusable' is
the proffered reason for it.” Anderson, 2011
WL 6748827, at *3 (citing Thompson, 76 F.3d at 534).
Federal Rule of Civil Procedure 7 provides, in relevant part,
that “[a] request for a court order must be made by
motion. The motion must: (A) be in writing unless made during
a hearing or trial; (B) state with particularity the
grounds for seeking the order; and (C) state the
relief sought.” Fed.R.Civ.P. 7(b)(1) (emphasis
added). Thus, a motion for relief pursuant
to Rule 6(b)(2) must state with specificity the basis for the
requested relief pursuant to Rule 7(b)(1).
Hosaflook's motion fails to state with particularly the
grounds for seeking an extension of time to file his reply
brief. In fact, the only basis Hosaflook sets forth for the
untimely filing of his brief is “inadvertent clerical
error” (Dkt. No. 178). Thus, the “most
important” equitable factor, the proffered reason for
the neglect, weighs against Hosaflook: his attorney simply
failed to calendar the correct date for the filing of a reply
brief. Further, the Court observes that Hosaflook's
counsel has litigated multiple cases in the Northern District
of West Virginia with awareness of the local rules and
deadlines for filing a timely reply brief. In addition, his
counsel has previously moved for extensions of time to comply
with the Court's deadlines in this matter, see,
e.g., Dkt. No. 108 (seeking extension of time to submit
exhibit binders to the Court), and has otherwise failed to
pay careful attention to the timely filing of documents in
the case, see, e.g., Dkt. No. 176 (seeking to reopen
the case due to “inadvertently” submitting a
proposed dismissal order prior to moving to lift the seal on
the Memorandum Opinion and Order at issue).
finding no excusable neglect for Hosaflook's failure to
timely file his reply brief and no good cause to permit him
to do so out of time, the Court DENIES his
motion (Dkt. No. 178), and will not consider the reply filed
at Docket Entry 179 in its determination of the pending
motion to reopen the case and motion to unseal.
MOTION TO ...