Schoenbauer v. Deutsche Bank Natl Trst ( 2023 )

Case: 22-10726 Document: 00516750799 Page: 1 Date Filed: 05/15/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10726
____________ FILED
May 15, 2023
Tim Schoenbauer, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Deutsche Bank National Trust Company,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-1901
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Plaintiff-Appellant Tim Schoenbauer appeals the district court’s
denial of his motion for reconsideration of an order denying entry of default
judgment. For the reasons stated below, we AFFIRM.
I. Background
This case arises from the attempted foreclosure of Schoenbauer’s
property located at 9364 Forest Hills Boulevard, Dallas, Texas. On June 29,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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2020, Schoenbauer, proceeding pro se, sued Defendant-Appellee Deutsche
Bank National Trust Company (“Deutsche Bank”), in Texas state court.
Schoenbauer alleged various claims, including breach of contract, fraud,
promissory estoppel, and violation of the Real Estate Settlement Procedures
Act, 12 U.S.C. §§ 2601–2617. Deutsche Bank removed this action to federal
court on July 17, 2020, on the basis of diversity jurisdiction, asserting federal
question jurisdiction in the alternative.
Beginning on September 1, 2020, Schoenbauer filed four separate
motions for entry of default judgment against Deutsche Bank. Each of those
motions was denied because Schoenbauer failed to comply with the
requirements of Rule 55 of the Federal Rules of Civil Procedure. For
example, Schoenbauer had not first requested entry of default and had not
demonstrated that Deutsche Bank failed to plead or otherwise defend the
lawsuit. Schoenbauer repeatedly claimed that he had properly served
Deutsche Bank by personally dropping off copies of his complaint at
Deutsche Bank’s attorneys’ office. The magistrate judge, however, rejected
this contention because Schoenbauer’s personal attempt at service did not
comply with Rule 4(c) of the Federal Rules of Civil Procedure. The
magistrate judge also considered the effect of Rule 81(c) of the Federal Rules
of Civil Procedure, holding that Deutsche Bank was not required to file an
answer because it had never been properly served.
On two separate occasions, the magistrate judge ordered Schoenbauer
to show cause why his case should not be dismissed, either by filing a valid
return of service or by stating, in writing, why proper service could not be
made. Schoenbauer did not comply with this order and instead moved for
entry of default judgment, contending that Deutsche Bank’s removal of the
lawsuit constituted a waiver of service. The magistrate judge rejected this
argument, explaining that a notice of removal is not a general appearance
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under Texas law and that Schoenbauer had not demonstrated that Deutsche
Bank waived service.
Schoenbauer then proceeded to file three motions for rehearing, and
the magistrate judge recommended that these motions be denied. On
December 27, 2021, the district court adopted those findings, conclusions,
and recommendations, and dismissed all of Schoenbauer’s claims. In
response, Schoenbauer filed a “motion for judgment,” which the magistrate
judge construed as a motion for reconsideration under Rule 59(e). The
magistrate judge recommended that the motion be denied because
Schoenbauer had not met the requirements of Rule 59(e). The district court
adopted those recommendations on August 3, 2022, and this appeal
followed.
II. Law and Analysis
Rule 59(e) allows a party to “alter or amend a judgment.” FED. R.
CIV. P. 59(e). “Rule 59(e) motions ‘are for the narrow purpose of
correcting manifest errors of law or fact or presenting newly discovered
evidence.’” Faciane v. Sun Life Assurance Co. of Canada, 931 F.3d 412, 423
(5th Cir. 2019) (quoting Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004). District courts have “considerable discretion in deciding whether
to reopen a case under Rule 59(e).” Edward H. Bohlin Co. v. The Banning Co.,
6 F.3d 350, 355 (5th Cir. 1993). Moreover, “reconsideration of a judgment
after its entry is an extraordinary remedy that should be used sparingly.”
Templet, 367 F.3d at 479.
We review the denial of Schoenbauer’s Rule 59(e) motion for abuse of
discretion. See Advocare Int'l LP v. Horizon Lab'ys, Inc., 524 F.3d 679, 690–91
(5th Cir. 2008); Matter of Life Partners Holdings, Inc., 926 F.3d 103, 128 (5th
Cir. 2019). Relief under Rule 59(e) may issue only if the movant
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demonstrates “a manifest error of law or fact or ... newly discovered
evidence.” Id.There are a dizzying number of pleadings in this case, due in part to
Schoenbauer’s pro se status. The district court carefully considered and
responded each of these pleadings, providing ample opportunities for
Schoenbauer to request different forms of relief and to prove that he had
properly served Deutsche Bank in this lawsuit. Instead, Schoenbauer filed the
same improper motions multiple times, while reasserting the same unavailing
arguments. In his “motion for judgment,” which the district court properly
construed as a motion for reconsideration, Schonebauer failed to identify a
manifest error of law or newly discovered evidence. Instead, he re-urged the
same unavailing arguments. Rule 59(e) motions “do[ ] not allow a party to
revive and initiate further proceedings in a dismissed lawsuit,” which is what
Schoenbauer appears to be doing here. Def. Distributed v. United States Dep’t
of State, 947 F.3d 870, 873 (5th Cir. 2020).
III. Conclusion
For the reasons stated above, the judgment of the district court is
AFFIRMED and this appeal is DISMISSED.
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