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Hosaflook v. Ocwen Loan Servicing, LLC

United States District Court, N.D. West Virginia

July 30, 2019

THEODORE HOSAFLOOK, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          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]

          IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

         Pending 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).

         I. BACKGROUND

         This 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 judgment.

         On 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).

         Approximately 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)[1], 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.

         II. MOTION TO FILE REPLY OUT OF TIME

         As a 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).

         Moreover, 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).

         Here, 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).

         Consequently, 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.

         III. MOTION TO ...


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