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Duffin v. Ocwen Loan Servicing LLC

United States District Court, N.D. Texas, Dallas Division

June 3, 2019

DAVID DUFFIN, et al., Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER SENIOR JUDGE.

         Treating 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.[1]

         I

         On 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.

         Feb. 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.

         On 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.

         II

         As 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).

         The 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 judgment.”).

Id. at *1.

         III

...


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