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Bohannon v. Phh Mortgage, Corporation

United States District Court, N.D. Georgia, Atlanta Division

March 12, 2015

SARA B. BOHANNON, Plaintiff,


RICHARD W. STORY, District Judge.

This case comes before the Court on Plaintiff's Motion to Modify/Amend Judgment [43] and Motion to Supplement Plaintiff's Motion [51]. After reviewing the record, the Court enters the following Order.


In 2010, Plaintiff Sara Bohannon initiated this action by filing a wrongful foreclosure claim against Defendants in the Superior Court of Henry County, Georgia. (Dkt. [34] at 1). On June 29, 2012, Plaintiff filed an amended complaint that added claims under the Federal Real Estate Settlement Procedures Act ("RESPA") and the Fair Debt Collection Practices Act ("FDCPA"). (Id.) Defendants then removed the case to this Court. (Dkt. [43] at 1). On July 23, 2012, Defendants filed a Motion for Judgment on the Pleadings [13]. On March 26, 2013, the Court granted in part and denied in part Defendants' motion. Specifically, the Court denied Defendants' motion as to Plaintiff's claim under Section 1692f(6) of the FDCPA; granted without prejudice the motion as to Plaintiff's claim under Section 1692e of the FDCPA, with leave to amend; and granted the motion for all remaining claims. On May 14, 2013, U.S. Magistrate Judge Gerrilyn G. Brill ordered the parties to file a Certificate of Interested Persons and Joint Preliminary Report and Discovery Plan within fourteen days. The order stated that "[f]ailure to file the documents within this time period may result in a recommendation that sanctions be imposed, including dismissal of the case or entry of a default judgment." (Dkt. [25] at 3).

Defendants timely submitted their Certificate of Interested Persons on May 28, 2013, as well as Defendants' Preliminary Report and Discovery Plan. (Dkt. [43] at 2). Defendants also reported that they had repeatedly attempted to contact Plaintiff's counsel, Robert T. Thompson, Jr. ("Thompson"), to schedule the required Rule 26(f) conference and prepare a Joint Preliminary Report and Discovery Plan, which the parties were ordered to submit by May 28, 2013. (Id.) However, Plaintiff's counsel failed to respond to any of these communications. (Id.)

Judge Brill then ordered the parties to appear on June 26, 2013 for a status conference to discuss the delays and communication problems. (Id.) At the conference, Judge Brill pointed out that Plaintiff's counsel had failed to comply with at least five disclosure requirements under the federal and local rules, including failing to participate in the Rule 26(f) conference and failing to file the required initial disclosures. (Dkt. [34] at 4-5). Defendants also pointed out that Plaintiff failed to file an amended complaint supporting her claim under Section 1692e of the FDCPA, despite having been granted leave to do so. (Id. at 5). For all of these violations, Defendants moved to dismiss the remainder of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 41(b). (Id.) In response, Plaintiff's counsel could not explain why he had failed to meet these requirements or file the amended complaint except that he had been busy. (Dkt. [43] at 3). Judge Brill gave Plaintiff's counsel another opportunity to explain his violations of court orders, but he again "provided no explanation except that he was busy and the pace of this case (which had started in state court) had been glacial." (Dkt. [34] at 5).

Even after this hearing, on June 27, 2013, Plaintiff's counsel sent former co-plaintiff, Peter Mancuso, an e-mail stating, "We are still working on the rests [sic] of the status conference, " and that "[the parties] had generally settled at about $14K and them [sic] they dropped it to $4K to maybe $5K or $6K... I got the feeling that it was more of a tease." (Dkt. [43-1] at 4, 9). This was not true.

On June 28, 2013, Judge Brill recommended that the Court grant Defendants' motion to dismiss with prejudice under Rule 41(b) after concluding "that dismissal was the appropriate sanction and that lesser sanctions would not suffice in light of Plaintiff's repeated failure to follow the Court's orders and rules." (Dkt. [41] at 2). Plaintiff filed Objections to the Report and Recommendation [36], asserting for the first time that counsel did not willfully fail to comply with the Court's orders, but that his delay was caused by an office move.

On August 7, 2013, the Court found that an office move surely would have been brought up at the status conference on June 26, and that "the move would not explain all of the failures of Plaintiff to comply with orders and rules of this Court." (See Dkt. [41] at 3). Accepting Judge Brill's recommendation, the Court dismissed the case with prejudice.

Apparently, Thompson did not notify Plaintiff that her case was dismissed. Rather, Plaintiff learned of the dismissal in early October 2012 in a letter from Defendant McCalla Rayer, LLC, informing Plaintiff that the foreclosure would recommence. (Dkt. [43-1] at 4). About ten months later, on August 6, 2014, Plaintiff filed this motion pro se under Federal Rules 60(b)(1) and 60(b)(6). (Dkt. [43] at 9).


I. Rule 60(b)(1) Relief

Plaintiff argues that she was effectively abandoned by Thompson and was misled about developments in her case. (Id. at 8). Because of these "egregious and documented circumstances, " Plaintiff argues that her claims should be dismissed without prejudice so she has the opportunity to pursue further legal remedies. (Id. at 9). Generally, "clients must be held accountable for the acts or omissions of their attorneys."[1] Pioneer Inv. Servs. Co. v. Brunswick Assocs. , 507 U.S. 380, 396 (1993). There is "no merit to the contention that dismissal of [a client's] claim because of his counsel's unexcused conduct imposes an unjust penalty on the client." Id . (quoting Link v. Wabash R. Co. , 370 U.S. 626, 633-34 (1962)) (emphasis added). However, Rule 60(b)(1) permits courts to relieve a party from a final judgment for "mistake, inadvertence, surprise, or excusable neglect " by counsel. FED. R. CIV. P. 60(b)(1) (emphasis added).

The Supreme Court has stated that "excusable neglect is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence." Pioneer , 507 U.S. at 394. "[W]hether a party's neglect of a deadline may be excused is an equitable decision turning on all relevant circumstances surrounding the party's omission.'" Cheney v. ...

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