Opinion
CIVIL ACTION NO. 2:08cv659-WHA (WO).
July 13, 2009
ORDER
This case is before the court on Defendant John Rudd's Motion to Alter, Amend or Vacate, Motion for Release from Order, and Motion to Set Aside Default Judgment, and the Plaintiff's Motion for Order Entering State Court Judgments and Closing Case (Doc. # 33).
Rudd's motions are contained in Document # 2, the Notice of Removal.
On October 4, 2007, the Plaintiff, Jerry Motley ("Motley"), filed this case in Circuit Court of Autauga County, Alabama, against Wells Fargo, N.A. ("Wells Fargo"), Option One Mortgage Corp. ("Option One"), Morris, Schneider Prior, LLC ("MSP"), Rudd, Countrywide Home Loans, Inc. ("Countrywide"), and Brent Cleveland ("Cleveland") alleging wrongful foreclosure.
On February 6, 2008, the state court entered default against Wells Fargo, Option One, MSP, and Rudd as a sanction for failure to comply with an order compelling discovery. On May 7, 2008, the state court held a hearing on damages, and following the hearing, the state court entered judgment against Wells Fargo and Option One for $315,000 in compensatory damages, and $1,000,000 in punitive damages, and against MSP and Rudd for $115,000 in compensatory damages, and $300,000 in punitive damages. The state court also quieted title to the property in favor of Motley, and ordered that Motley's credit report be cleared of entries regarding the wrongful foreclosure.
On June 4, 2008, Motley, Countrywide and Cleveland filed a Joint Stipulation of Dismissal requesting that the state court enter an order dismissing all claims against Countrywide and Brent Cleveland, the only non-diverse defendant, without prejudice. Following the state court's order dismissing Countrywide and Cleveland, the Defendants removed the case to this court, and the court accepted jurisdiction.
Rudd's motions, in addition to similar motions brought by the other Defendants, were pending before the state court at the time of removal. On June 12, 2009, Motley filed his response to the motions, and, on June 9, 2009, Motley moved for entry of the state court judgments. On June 16, 2008, the court heard oral arguments from the parties on all pending motions. Having considered the briefs and oral arguments of the parties, the court finds Motley's Motion for Order Entering State Court Judgments and Closing Case is due to be denied, and Rudd's Motion to Set Aside Default Judgment is due to the granted. Rudd's other motions are due to be denied as moot.
Motley's response was originally filed in state court on August 15, 2008. Motley argues that the Defendants did not comply with 28 U.S.C. 1446(a) by failing to attach his response to the Notice of Removal. The Notice of Removal, however, was filed on August 14, 2008, one day prior to the filing of Motley's response. This court received Motley's response on June 12, 2009.
Motley's motion for entry of judgment argues that this court has no authority to set aside the default judgments entered by the state court because the Defendants failed to timely file a motion under Federal Rule Civil Procedure 59(e) asking the court to vacate the state court judgments. The court, however, finds such a motion unnecessary in this case because at the time of removal, all of the defendants had motions seeking relief from the default judgment pending in state court. By operation of law, those motions remain pending as if they had been filed in federal court, and the court sees no basis for requiring the Defendants to file redundant motions upon removal. See Murray v. Ford Motor Co., 770 F.2d 461, 464 (5th Cir. 1985) (holding that a Motion to Set Aside Default Judgment that was pending in state court prior to removal was a timely motion that could be considered by the district court). Motley's motion, based on the issue of timeliness, therefore, is due to be denied.
The cases cited by Motley are distinguishable on that basis. In Jackson v. American Savings Mortgage, 54 F.3d 688 (11th Cir. 1995) the Eleventh Circuit determined that it would be improper for it to hear an appeal of a grant of summary judgment entered by the state court where the district court had not had an opportunity to rule on a motion to vacate the state court's order, and held that the defendant, prior to seeking an appeal, must first move the district court to modify or vacate the state court order or judgment. The court expressed concern that without the district court having the opportunity to consider the state court order, the fiction that the order was entered by the district court was stretched too far. In Jackson, and all of the other cases cited by Motley, there were no post-judgment motions pending in the state trial court at the time of removal for the district court to consider, necessitating that a motion to vacate be filed in the district court upon removal. Here, however, there are pending motions inviting the district court's consideration of the state court judgements, eliminating the need for the Defendants to file Rule 59(e) motions.
Rudd's motions ask the court to set aside the default judgment entered against him by the state court, or in the alternative, to modify that judgment. Federal Rule of Civil Procedure 55(c) provides for the setting aside of a judgment by default in accordance with Rule 60(b). Rule 60(b) states:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
The parties all agree that at the time the state court entered its sanction for failure to comply with its order compelling discovery, Motley had not directed any requests for discovery to Rudd, but only to the other Defendants. Motley contends that despite the inapplicability of the sanction against Rudd as a party to the suit, Motley was entitled to a default judgment against Rudd based on his status as an attorney for the defendants to which discovery requests were directed. The court, however, can find no evidence that Rudd was serving as counsel for any party in this case. To the court's knowledge, Rudd did not sign any pleadings, enter any appearance as counsel of record, nor take any other action consistent with a role as an attorney in this case. Therefore, since no discovery requests were directed to Rudd, the court finds good cause, pursuant to Federal Rules of Civil Procedure 55(c) and 60(b)(6), to set aside the default judgment entered against Rudd as a sanction for failure to comply with an order compelling discovery.
Accordingly, it is ORDERED as follows:
(1) Rudd's Motion to Set Aside Default Judgment is GRANTED.
(2) Rudd's Motion to Alter, Amend or Vacate, and Motion for Release from Order are DENIED as moot.
(3) Motley's Motion for Order Entering State Court Judgments and Closing Case (Doc. # 33) is DENIED as to all Defendants.
(4) The case will proceed against Defendant John Rudd, and for further consideration of the outstanding motions of the other Defendants.CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders: Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1 365 1 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing: Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal: See also 3pro se 4. Effect of a notice of appeal: 4 A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , 368 (11th Ci r. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).