Gene Salvati v. Deutsche Bank National Trust ( 2018 )

CLD-045 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2280
___________
GENE W. SALVATI; ROSALIND DAVIS;
HARRY DAVIS; BRIAN D. MURPHY
v.
DEUTSCHE BANK NATIONAL TRUST CO, a subsidiary
of Deutsche Bank, AG; BANK OF AMERICA HOME LOANS
SERVICING, a subsidiary of Bank of America, N.A.; ONEWEST BANK
FSB; MCCABE WEISBERG CONWAY, PC, a law firm and debt collector
Antonello Boldrini,
Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-12-cv-00971)
Magistrate Judge: Honorable Maureen P. Kelly
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 29, 2018
Before: CHAGARES, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed December 19, 2018)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Antonello Boldrini appeals from the District Court orders discussed below. We
will affirm.
I.
The background of this class action is described in Salvati v. Deutsche Bank
National Trust Co., N.A., 575 F. App’x 49 (3d Cir. 2014), in which we remanded for
further proceedings on some of the named plaintiffs’ claims. Following our remand, the
District Court1 entered an order preliminary certifying a settlement class and
preliminarily approving a class action settlement. (ECF No. 177.) The settlement class
included certain persons who received certain mortgage foreclosure complaints from
McCabe Weisberg & Conway, P.C. (“McCabe”). Following a notice and opt-out period
and a hearing, the District Court entered its final order certifying the class and approving
the settlement. (ECF No. 205.) The District Court also dismissed the action with
prejudice.
Appellant Boldrini is a member of the settlement class who neither opted out nor
objected to the settlement. About a month after the District Court approved the
settlement, however, Boldrini filed a motion seeking exclusion from the class. In that
motion, Boldrini admitted that he received timely notice of the proposed class and
1
The District Court acted in relevant part through a Magistrate Judge, who presided with
the named parties’ consent pursuant to 28 U.S.C. § 636(c)(1). The consent of the
unnamed class members, including appellant Boldrini, was not required for the
Magistrate Judge to exercise jurisdiction. See Dewey v. Volkswagen Aktiengesellschaft,
681 F.3d 170, 181 (3d Cir. 2012).
2
proposed settlement in an envelope addressed to him2 and stamped “important
information about class action settlement.” He claimed, however, that he thought it was
“advertising/junk mail, etc.” and that he put it aside without reading it until he decided to
“reorganize paperwork” after the settlement had been approved. McCabe opposed
Boldrini’s motion on the ground that he did not claim lack of notice but only that he had
not read it, which was not a basis to release him from the already approved settlement.
The District Court apparently agreed and denied Boldrini’s motion on March 17, 2017.
(ECF No. 212.) Boldrini did not appeal.
One year later, Boldrini filed with the District Court a motion for relief from that
ruling under Fed. R. Civ. P. 60(b).3 Boldrini did not rely on any newly discovered
evidence, changed circumstances, or new law. Instead, he asserted without explanation
that he sold his property in November 2009 (though he still resided there), and he raised
conclusory claims of unspecified fraud. The District Court denied that motion on April 2,
2018. (ECF No. 217.)
Boldrini then filed a motion for reconsideration of that ruling. He attached a Truth
In Lending Act “rescission notice” that he executed on March 2018 purporting to rescind
a mortgage loan on the basis of fraud. The District Court denied the motion on May 9,
2018. (ECF No. 219.) In doing so, the District Court explained that Boldrini had not
2
In his motion, Boldrini referred only to an envelope addressed to his deceased wife.
Boldrini, however, attached a copy of an envelope and notice addressed to him.
3
As of this writing, the District Court’s docket incorrectly identifies Boldrini’s motion as
having been filed by plaintiff Gene W. Salvati. (ECF No. 214.)
3
raised any ground for Rule 60(b) relief or reconsideration and that his inclusion in the
class was a result of his own failure to read his mail, not of any fraud. Boldrini filed
another motion for reconsideration4 and, by text-only order entered May 10, 2018, the
District Court denied that motion too. (ECF No. 221.) Boldrini appeals pro se from that
order. McCabe has filed a motion to dismiss this appeal as untimely, and Boldrini has
filed a motion to “amend” his notice of appeal along with an amended notice of appeal
challenging the District Court’s orders at ECF Nos. 212, 217 and 219 as well.
II.
We begin by clarifying our jurisdiction and the scope of this appeal. Boldrini’s
notice of appeal is timely as to both of the District Court’s orders denying reconsideration
(ECF Nos. 221 and 219) of the District Court’s order denying Boldrini’s Rule 60(b)
motion (ECF No. 217), which sought relief from the District Court’s order denying his
motion from exclusion from the class (ECF No. 212). Boldrini’s notice of appeal
mentions only the District Court’s second order denying reconsideration but, particularly
in light of the issue noted in note 2, above, we will liberally construe his pro se notice of
appeal as an appeal from the first order denying reconsideration. We in turn construe that
order as denying relief under Fed. R. Civ. P. 59(e). Boldrini filed his first motion for
reconsideration within 28 days of the District Court’s order denying his Rule 60(b)
4
Boldrini argues that he intended to file only a corrected copy of his original motion for
reconsideration and not a new motion. That argument is supported by the fact that
Boldrini mailed his second motion to the District Court before it denied his first motion.
Boldrini was not prejudiced by the District Court’s decision to docket and rule on his
corrected motion as a new motion, however, because we construe this appeal to include a
challenge to both orders denying reconsideration as explained below.
4
motion, so his timely appeal from the denial of reconsideration brings up for review the
denial of his Rule 60(b) motion as well. See Fed. R. App. P. 4(a)(4)(A)(v); Long v. Atl.
City Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir. 2012). Thus, we will liberally
construe his pro se notice of appeal as challenging that order too. The District Court’s
order denying Boldrini’s Rule 60(b) motion for relief from a final order is itself a final
order over which we have jurisdiction under 28 U.S.C. § 1291. See Torres v. Chater, 125
F.3d 166, 167-69 (3d Cir. 1997).
The District Court’s underlying order denying Boldrini’s motion for exclusion
from the class, however, is beyond the scope of this appeal. Boldrini did not appeal that
order within 30 days and instead filed his Rule 60(b) motion one year later. His Rule
60(b) motion did not toll the already expired period to appeal the order denying exclusion
from the class, see Fed. R. App. P. 4(a)(4)(A)(iv), and his appeal from the denial of his
Rule 60(b) motion does not bring that underlying order up for review, see Torres, 125
F.3d at 167; Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir. 1985). Thus, we do not have
jurisdiction to review that underlying order.
III.
As just discussed, we have jurisdiction to review the District Court’s order
denying Boldrini’s Rule 60(b) motion and its orders denying reconsideration of that
ruling. We do so for abuse of discretion, see In re Vehicle Carrier Servs. Antitrust Litig.,
846 F.3d 71, 78-79 & n.4 (3d Cir.), cert. denied, 138 S. Ct. 114 (2017), and we perceive
none. Boldrini’s Rule 60(b) motion could be read as attempting to invoke Rule 60(b)(3)
and Rule 60(b)(6), but he made no showing that his inclusion in the settlement class was
5
the result of fraud or some extraordinary circumstance rather than his admitted failure to
read his properly labeled mail. See Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d
Cir. 2008). Nor did his motions for reconsideration raise anything warranting relief
under Rule 59(e). See In re Vehicle Carrier Servs. Antitrust Litig., 846 F.3d at 87.
Boldrini’s arguments on appeal, which he has raised for the first time on appeal, relate to
extraneous or irrelevant matters and do not require discussion.5
IV.
For these reasons, this appeal presents no substantial question and we will affirm the
judgments of the District Court. See 3d Cir. L.A.R. 27.4 (2010); 3d Cir. I.O.P. 10.6. We
also deny McCabe’s motion to dismiss this appeal as untimely6 and Boldrini’s motion to
amend his notice of appeal.7
5
For example, Boldrini argues that the District Court Clerk committed “fraud” because
the Clerk received his motion for exclusion from the class on February 27, 2017, but did
not docket it until March 7, 2017. Boldrini argues that the Clerk thereby deprived him of
the ability to appeal the order approving the settlement, but that is not the case.
6
McCabe argues that (1) this appeal is untimely as to the District Court’s underlying
order denying Boldrini’s motion for exclusion, and (2) Boldrini’s Rule 60(b) motion was
improper because he was effectively using it as a substitute for an appeal of that
underlying order. We agree with both propositions. As noted above, however, this
appeal is timely as to the District Court’s order denying Boldrini’s Rule 60(b) motion,
and that order is a final one that we have jurisdiction to review. The fact that Rule 60(b)
motions may not be used as a substitute for appeal is a reason to affirm the District
Court’s denial of Rule 60(b) relief on the merits, not to dismiss this appeal as untimely.
7
Boldrini’s motion is unnecessary to the extent that we have liberally construed his
notice of appeal as appealing from the District Court’s orders denying reconsideration
and Rule 60(b) relief. To the extent that Boldrini seeks to amend his notice of appeal to
appeal the underlying order denying exclusion, Boldrini’s notice of appeal is untimely as
to that order as explained above. We decline to transfer Boldrini’s motion to the District
Court for consideration as a motion for relief from that time limit under Fed. R. App. P.
4(a)(5) or 4(a)(6). Boldrini’s motion does not state a basis for such relief, and none is
available because the jurisdictional deadlines for seeking such relief have long since
passed. See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A)(i), 4(a)(6)(B).
6