United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER SENIOR JUDGE.
plaintiffs' motion for “new trial” as a
motion to alter or amend the judgment under Fed.R.Civ.P.
59(e), the court denies the motion.
January 22, 2018 plaintiffs David Duffin and Linda Duffin
filed this action in state court against defendant Ocwen Loan
Servicing, LLC (“Ocwen”). Ocwen removed the case
to this court on May 24, 2018. On January 11, 2019 Ocwen
filed a motion to dismiss the Duffins' state court
petition. The Duffins did not respond to the motion. On
February 11, 2019 the court granted Ocwen's motion to
dismiss but also granted the Duffins leave to replead,
stating, inter alia:
[p]laintiffs filed this case in state court, under the
pleading standards that govern in that forum. They should be
given an opportunity to replead under the federal pleading
standards. See, e.g., Hoffman v. L & M Arts, 774
F.Supp.2d 826, 849 (N.D. Tex. 2011) (Fitzwater, C.J.)
(granting similar relief in removed case). Accordingly, the
court grants plaintiffs 28 days from the date this order is
filed to file an amended complaint. If they fail to replead,
this action will be dismissed based on defendant's
January 11, 2019 motion. If they replead, defendant may move
anew to dismiss, if it has a basis to do so.
11, 2019 Order at 1-2. After the Duffins failed to replead,
the court on March 18, 2019 entered an order and judgment
dismissing this action with prejudice based on
defendants' January 11, 2019 motion to dismiss.
March 30, 2019 plaintiffs filed the instant motion for new
trial. They explain that at the time the court granted
Ocwen's motion to dismiss they were without counsel, and
they argue that because the court on February 11, 2019
granted defendants' unopposed motion to extend the
dispositive motion deadline until April 9, 2019, “it
would be easy for the Pro Se Plaintiffs to be confused by the
date they had to respond by. They likely thought they had
until April 9, 2019 to respond.” Ps. Br. 1. Plaintiffs
also maintain that “[i]t would be easy to plead facts
to present to the Court in order to repair the deficiency in
Plaintiff's pleadings.” Id.
stated above, the court entered judgment on March 18, 2019.
The Duffins filed their motion for “new trial” on
March 30, 2019. Because the Duffins filed their motion within
28 days of the date the judgment was entered, the motion is
properly considered as a Rule 59(e) motion to alter or amend
the judgment. See Rule 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.”); see
also, e.g., Patin v. Allied Signal, Inc., 77 F.3d
782, 785 n.1 (5th Cir. 1996) (addressing former rule in which
applicable period was ten countable days).
motion is not properly considered a motion for “new
trial” because there was no trial. As this court has
explained several times, including in Artemis Seafood,
Inc. v. Butcher's Choice, Inc., 1999 WL 1032798
(N.D. Tex. Nov. 10, 1999) (Fitzwater, J.):
[a]lthough denominated as a motion for “new trial,
” it obviously is not such a motion. As Rule 59(a)
makes clear, a motion for new trial is appropriate when the
case has been tried to a jury or to the court. The court
disposed of this case on motion for summary judgment. See
Patin v. Allied Signal, Inc., 77 F.3d 782, 785 n.1 (5th
Cir. 1996) (“The Patins' reconsideration motion was
styled as a motion for new trial, pursuant to Fed.R.Civ.P.
59(a), but was correctly analyzed and decided in the district
court as a Rule 59(e) motion to reconsider entry of summary
Id. at *1.