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Swenson v. Wilmington Savings Fund Society

United States District Court, D. Massachusetts

January 2, 2020

ALFRED SWENSON, Plaintiff,
v.
WILMINGTON SAVINGS FUND SOCIETY, FSB d/b/a CHRISTIANA TRUST, NOT INDIVIDUALLY BUT AS TRUSTEE FOR PRETIUM MORTGAGE ACQUISITION TRUST, and SELENE FINANCE LP, Defendants.

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR RECONSIDERATION AND PLAINTIFF'S MOTION FOR SANCTIONS

          Judith Gail Dein United States Magistrate Judge

         I. INTRODUCTION

         The plaintiff, Alfred Swenson, commenced this action challenging efforts by the defendants (collectively, “Wilmington”) to foreclose on his home. The matter was mediated before Senior District Judge Harrington, who reported the case settled on November 5, 2018. On November 8, 2018, the trial judge, District Judge Wolf, entered a 60-day Settlement Order of Dismissal. (Dkt. No. 50). The settlement was not finalized and, shortly before the 60th day, the plaintiff filed a “Motion to Reopen Case and for Status Conference, ” asserting that the defendants had “failed to perform as required pursuant to the terms of the parties' negotiated settlement” and that the defendants were “requiring a condition precedent to their perfor-mance that the parties never agreed to[.]” (Dkt. No. 51). The motion was denied by the trial judge without prejudice on the 60th day on the grounds that the motion was not “supported by an affidavit or memorandum as required by Local Rule 7.1(b)(1), and provides no explanation of the alleged failure to perform[.]” (Dkt. No. 52). Defense counsel promptly sent plaintiff's counsel an email suggesting to plaintiff's counsel that he not refile the motion since the matter would be settled. Nevertheless, on January 9, 2019, the 62nd day, plaintiff filed a “Renewed Motion to Reopen Case and for Status Conference” with supporting information. (Dkt. Nos. 53 & 54 (the “Motion to Reopen”)). Well after the time period had expired for opposing the Motion, the defendants filed a “Response, ” requesting that the matter be returned to the mediator who would confirm the terms of the settlement. (Dkt. No. 55).

         The plaintiff has been making payments to the defendants in accordance with the terms he believes were agreed upon, including a lump sum payment. Nevertheless, subsequent efforts to finalize the settlement, including a further session with the mediator, have proved unsuccessful. This court held a hearing, and the parties have filed a number of pleadings seeking to identify the issues in dispute, the scope of permissible evidence and the most efficient way to determine if a settlement had truly been reached at the original mediation and, if so, the terms of that settlement. On September 23, 2019, this court entered an order that provided as follows:

Treating the [Motion to Reopen] as a procedural request that the court address whether or not a settlement agreement has been reached and, if so, to enforce that agreement, the motion is granted. In accordance with the prior rulings of the court, the court will establish a procedure to address the merits of these issues.

(Dkt. No. 70). In lieu of a status report, on November 7, 2019, the defendants filed the Motion for Reconsideration, which is presently before this court. (Dkt. No. 78). Therein, the defendants contend that the plaintiff's Motion to Reopen filed on January 9, 2019 was untimely, and that, as a result, the court lacks jurisdiction over this case. The plaintiff opposed the Motion for Reconsideration, and moved for sanctions. (Dkt. No. 79). Despite being given the opportunity to respond to the request for sanctions, the defendants failed to do so. (Dkt. No. 80). Oral argument was held on December 17, 2019. (Dkt. No. 85).

         After careful consideration of the written and oral arguments of the parties, and as stated at oral argument, the Motion for Reconsideration (Dkt. No. 78) is DENIED. As an initial matter, plaintiff could have refiled a timely motion to reopen on the 60th day after the Settlement Order of Dismissal was entered, but was affirmatively encouraged not to do so by defense counsel. In addition, the motion could have been deemed unopposed, since the defendants did not respond in a timely manner. Finally, even assuming that the filing on the 62nd day was untimely, the court accepts the Motion pursuant to Fed.R.Civ.P. 60.

         The plaintiff's Request for Sanctions (Dkt. No. 79) is ALLOWED. If the defendants truly believed that this court lacked jurisdiction over this case because the refiled Motion to Reopen was untimely, they should have pursued that issue months ago, before the considerable expenditure of plaintiff's counsel's time and effort, and the court's resources. While the issue was noted in passing in their filings, the defendants never sought a hearing on the issue. More importantly, both in their pleadings and in oral argument before this court, defendants failed to explain their failure to oppose the Motion to Reopen in a timely manner, or defense counsel's actions in assuring plaintiff's counsel that he did not need to file another motion to reopen.[1] While this correspondence was highlighted in plaintiff's Opposition to the Motion for Reconsideration and Request for Sanctions, defense counsel failed to address it at all. Thus, the record as it stands establishes that defense counsel lulled plaintiff's counsel into believing that the Motion to Reopen could be filed after the 60-day period, without opposition. The defendants' belated position to the contrary is frivolous.

         Plaintiff is awarded his costs and attorneys' fees in opposing defendants' Motion for Reconsideration, to be paid by defendants' attorneys. Plaintiff's counsel shall submit an affidavit detailing these amounts within 30 days of the date of this Order.

         II. STATEMENT OF FACTS

         On November 5, 2018, the case was reported settled by the mediator, who instructed that “[a] 60 day settlement order may issue.” (Dkt. No. 49). On November 8, 2018, the trial judge issued a Settlement Order of Dismissal (Dkt. No. 50), which provided:

It is hereby ORDERED that this action is hereby DISMISSED without prejudice to reconsideration and possible reopening if within 60 days of this Order a motion is filed which represents that the terms of the settlement agreement have not been performed and there is good cause for the non-performing party or parties to have failed to perform.
If no such motion is filed within 60 days of this Order, the case may only be reopened upon a meritorious motion pursuant to Fed.R.Civ.P. 60. See Pratt v. Philbrock, 109 F.3d 18 (1st Cir. 1997).

(Id.).

         The defendants' counsel sent a draft of the settlement agreement to plaintiff's counsel on December 13, 2018. (Dkt. No. 53-1 ¶ 10). The parties were unable to conclude the settlement and on January 4, 2019, three days prior to the 60-day deadline set forth in the Settlement Order of Dismissal, the plaintiff filed a “Motion to Reopen Case and for Status Conference.” (Dkt. No. 51). The motion was denied without prejudice on January 7, 2019 (the 60th day) because the “motion [was] not supported by an affidavit or memorandum as required by Local Rule 7.1(b)(1), and provides no explanation of the alleged failure to perform[.]” (Dkt. No. 52). Later that same day, defense counsel emailed the plaintiff's counsel stating:

Chris, good afternoon. How are you? I just saw this [the denial] come down from U.S. DC (MA). If I might make a suggestion, hold off on filing the revised motion. I expect my client to tell me shortly when the agreement for judgment and permanent modification offer will be ready to forward to ...

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