Lawtone-Bowles v. Brown ( 2022 )

21-1242-cv
Lawtone-Bowles v. Brown
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 22nd day of March, two thousand twenty-two.
4
5 PRESENT: DENNY CHIN,
6 RAYMOND J. LOHIER, JR.,
7 BETH ROBINSON,
8 Circuit Judges.
9 ------------------------------------------------------------------
10 NICOLE LAWTONE-BOWLES,
11
12 Plaintiff-Appellant,
13
14 v. No. 21-1242-cv
15
16 PHIONAH BROWN,
17
18 Defendant-Appellee,
19
20 U.S. BANK NATIONAL ASSOCIATION, AS
21 TRUSTEE, IN TRUST FOR THE HOLDERS OF
22 HLMI TRUST 2002AFC1 (USBANK), SELECT
1 PORTFOLIO SERVICING (SPS), STEVEN J.
2 BAUM, P.C.,
3
4 Defendants.
5 ------------------------------------------------------------------
6 FOR PLAINTIFF-APPELLANT: NICOLE LAWTONE-BOWLES, pro
7 se, Highland Falls, NY
8
9 FOR DEFENDANT-APPELLEE: KENNETH FLICKINGER, Eckert,
10 Seamans, Cherin & Mellott
11 LLC, White Plains, NY
12 Appeal from an order of the United States District Court for the Southern
13 District of New York (Philip M. Halpern, Judge).
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the April 16, 2021 order of the District Court is AFFIRMED.
16 Appellant Nicole Lawtone-Bowles, pro se, sued U.S. Bank National
17 Association (“U.S. Bank”), Select Portfolio Servicing (“SPS”), Steven J. Baum,
18 P.C., and Phionah Brown, alleging federal and state law causes of action related
19 to an assignment of the mortgage on her home. U.S. Bank, SPS, and Baum (the
20 “Unserved Defendants”) were never properly served, though Brown was. The
21 District Court (Halpern, J.) ordered Lawtone-Bowles to show cause why the
22 action should not be dismissed as to the Unserved Defendants for failure to serve
23 them under Federal Rules of Civil Procedure 4(m) and 41(b). Although the
24 District Court gave Lawtone-Bowles a deadline within which to file her response,
2
1 she failed to respond by the deadline. The District Court then dismissed the
2 claims for failure to prosecute against U.S. Bank, SPS, and Baum. 1 Lawtone-
3 Bowles moved for reconsideration, claiming that she had in fact responded to the
4 order to show cause but that it had not been filed on the district court docket.
5 The District Court construed Lawtone-Bowles’s motion as one under Federal
6 Rule of Civil Procedure 60(b)(1) and denied it, finding that Lawtone-Bowles had
7 failed to establish excusable neglect for her failure to timely file a response to the
8 order to show cause because she had failed to check whether her response had
9 been filed. We assume the parties’ familiarity with the underlying facts and the
10 record of prior proceedings, to which we refer only as necessary to explain our
11 decision to affirm.
12 We review the denial of a Rule 60(b) motion for relief from judgment for
13 abuse of discretion. 2 Johnson v. Univ. of Rochester Med. Ctr., 642 F.3d 121, 125
1In a separate order issued on the same day, the District Court granted Brown’s motion
to dismiss. That decision is not the subject of Bowles’s notice of appeal and we
therefore have no jurisdiction to consider it. In any event, on appeal Bowles has
abandoned any arguments as to the dismissal of the claims against Brown. See Shakur
v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004).
2The District Court properly construed Lawtone-Bowles’s motion for reconsideration of
the order dismissing the case for failure to prosecute as a Rule 60(b) motion. As the
District Court noted, the motion would have otherwise been untimely under Local Civil
Rule 6.3 of the Local Rules of the United States District Courts for the Southern and
Eastern Districts of New York.
3
1 (2d Cir. 2011). A court abuses it discretion when “its decision rests on an error of
2 law or a clearly erroneous factual finding” or “cannot be found within the range
3 of permissible decisions.” Id.4 Rule 60(b)(1) permits relief from a judgment based on “mistake,
5 inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P. 60(b)(1). It is a
6 “mechanism for extraordinary judicial relief invoked only if the moving party
7 demonstrates exceptional circumstances.” Ruotolo v. City of New York, 514 F.3d
8 184, 191 (2d Cir. 2008) (quotation marks omitted). District courts should consider
9 several factors when resolving Rule 60(b)(1) motions, including (1) the “danger
10 of prejudice” to the non-moving party, (2) the “length of the delay and its
11 potential impact on judicial proceedings,” (3) the “reason for the delay, including
12 whether it was within the reasonable control of the movant,” and (4) “whether
13 the movant acted in good faith.” Pioneer Inv. Servs. Co. v Brunswick Assocs.
14 Ltd. P’ship, 507 U.S. 380, 395 (1993); see also Canfield v. Van Atta Buick/GMC
15 Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997).
16 Lawtone-Bowles claims that she is entitled to relief under Rule 60(b)(1)
17 based on excusable neglect. 3 Applying the proper legal standard, however, the
3On appeal, Lawtone-Bowles contends that her motion is also brought under Rule
60(b)(3), which permits relief from a judgment on the basis of fraud, misrepresentation,
4
1 District Court reasonably concluded that Lawtone-Bowles failed to check that her
2 response to the order to show cause was filed even though she was on notice that
3 it was her responsibility to ensure that the documents she sought to file appeared
4 on the docket and although she was advised that if they did not appear, she had
5 to file those documents in paper form. The District Court did not abuse its
6 discretion in finding that Lawtone-Bowles’s lack of diligence prevented her from
7 meeting the excusable neglect standard. Cf. Canfield, 127 F.3d at 250
8 (“[I]nadvertence, ignorance of the rules, or mistakes construing the rules do not
9 usually constitute excusable neglect.” (quotation marks omitted)). The District
10 Court’s denial of Lawtone-Bowles’s motion was thus not based on an error of
11 law or a clearly erroneous finding of fact, and its decision can be “located within
12 the range of permissible decisions.” Yukos Cap. S.A.R.L. v. Feldman, 977 F.3d
13 216, 234 (2d Cir. 2020) (citation omitted).
or misconduct by an opposing party. But because Lawtone-Bowles did not allege any
fraud, misrepresentation, or misconduct that bears on the District Court’s judgment or
its denial of her motion for reconsideration, we construe her motion as filed under Rule
60(b)(1).
5
1 We have considered Lawtone-Bowles’s remaining arguments and
2 conclude that they are without merit. For the foregoing reasons, the order of the
3 District Court is AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk of Court
6