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Richard W. Breinholt and Susan L. Breinholt v. Aegis Wholesale Corporation

May 2, 2012

RICHARD W. BREINHOLT AND SUSAN L. BREINHOLT, PLAINTIFFS,
v.
AEGIS WHOLESALE CORPORATION, A CORPORATION, ONEWEST BANK, FORMERLY INDYMAC FEDERAL BANK, FSB, A BANK, TRI-COUNTY PROCESS SERVING, LLC, A LIMITED LIABILITY CORPORATION, A CORPORATION, PIONEER LENDER TRUSTEE SERVICES, LLC, A LIMITED LIABILITY CORPORATION, MORTGAGE ELECTRONIC REGISTRATION SERVICES (MERS); TITLE ONE CORPORATION, JENNIFER TAIT, ROBINSON TAIT, P.S. (LAW FIRM) JOHN AND JANE DOES IV, CORPORATIONS VI-X, AND ABC PARTNERSHIPS XI-XV, DEFENDANTS.



The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it plaintiffs' "Verified Motion for Hearing to Determine the Court's Jurisdiction Pursuant to FRCP 60(b)(2)(3)(6)." See Dkt. 59. Additionally, defendant Tri-County Process Serving LLC has renewed its previously filed motion for attorneys' fees, which this Court denied without prejudice. See Dkts. 54, 62. Tri-County also requests entry of judgment. For the reasons explained below, the Court will deny all pending motions.

PLAINTIFFS' MOTION FOR RULE 60(b) RELIEF

This Court has dismissed all but one of the defendants in this action.*fn1 See Feb. 18, 2011 Order, Dkt. 36; Aug. 12, 2011 Order, Dkt. 52. Plaintiffs seek relief from this Court's dismissal orders under Federal Rule of Civil Procedure 60(b).

Rule 60(b) allows a court to relieve a party from a final judgment, order or proceeding for various reasons, including the following:

 newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

 any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(2), (3), and (6). Plaintiffs say they are entitled to Rule 60(b) relief for allthese reasons, yet they have not specifically explained why this is so. Instead, they focus almost exclusively on their argument that the defendants wrongfully initiated foreclosure proceedings. Plaintiffs' ultimate goal is for this Court to conduct a hearing and require the defendants to prove who, if anyone, has the right to foreclose.

Plaintiffs' arguments are deficient for at least two reasons. First, they are not tethered to Rule 60(b). Second, they are foreclosed by the doctrine of res judicata. The Court previously dismissed Breinholt's claims under this doctrine because plaintiffs' claims have already been litigated in state court. The Breinholts cannot seek a different result here.

Plaintiffs have put forth two exhibits that post-date the state court foreclosure proceedings. See Exhibits A and B to Breinholt Aff., Dkts. 59-2, 59-3. These documents, however, are not the type of newly discovered evidence that suffices to upset the Court's previous dismissal order. Among other things, the exhibits have no bearing on the res judicata concerns that prompted dismissal of the Breinholt's action. Broadly speaking, plaintiffs offer these documents to support their argument that their property cannot be foreclosed upon. Again, this argument was litigated in state court, and cannot be relitigated here. In sum, plaintiffs' request for Rule 60(b) relief lacks merit and will be denied.

TRI-COUNTY'S MOTION FOR ATTORNEYS' FEES AND ENTRY OF JUDGMENT

The Court will not direct entry of judgment at this time, however, because plaintiff is still pursuing a defendant in this action. Federal Rule of Civil Procedure 54(b) permits entry of a separate judgment in these situations, but only upon the Court's express determination "that there is no just reason for delay." Fed. R. Civ. P. 54(b). Here, the Court is concerned that if it enters a separate judgment now, the appellate court might be ...


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