Resolution Trust Corp. v. Friesen
| Decision Date | 14 January 1992 |
| Docket Number | No. 90-1167-C.,90-1167-C. |
| Citation | 783 F. Supp. 1292 |
| Parties | RESOLUTION TRUST CORPORATION, as Receiver for Valley Savings, a Federal Savings and Loan Association, Hutchinson, Kansas, Plaintiff, v. Michael J. FRIESEN; Lydia K. Friesen; Farmers State Bank of Ingalls; Kansas Department of Revenue; and Pauline G. Rains, individually, in rem and as Executrix for the Estate of Gilbert R. Rains, Defendants. |
| Court | U.S. District Court — District of Kansas |
Jack C. Marvin, Susan G. Saidian, Morrison & Hecker, Wichita, Kan., for Resolution Trust Corp.
Jon R. Craig, Phyllis F. Wendler, Michael J. Friesen, Friesen & Wendler, P.A., Garden City, Kan., for Michael J. Friesen.
Phyllis F. Wendler, Michael J. Friesen, Friesen & Wendler, P.A., Garden City, Kan., for Lydia K. Friesen.
Philip D. Ridenour, Ridenour and Knobbe, Cimarron, Kan., for Farmers State Bank of Ingalls.
D. Philip Wilkes, Kansas Dept. of Revenue, Topeka, Kan., for Department of Revenue, Kansas State.
Jon R. Craig, Garden City, Kan., for Pauline G. Rains.
Pauline G. Rains, pro se.
The case comes before the court on two motions. Defendants, Pauline E. Rains, Michael J. Friesen and Lydia K. Friesen, ask the court to alter, vacate and set aside its order of July 25, 1991, (Dk. 72) in which the plaintiff's motion for summary judgment against defendant Rains was granted as uncontested. Now that defendants Michael J. Friesen and Lydia K. Friesen have filed their response to the plaintiff's motion for summary judgment and the bankruptcy stay is no longer effective, the plaintiff's motion is ripe against the Friesens. Oral argument is requested by the Friesens and denied by the court since it would not materially assist a decision on the motion.
Plaintiff, Resolution Trust Corporation ("RTC"), filed its motion for summary judgment with supporting memorandum on October 24, 1990. (Dk. 27, 28). On November 19, 1990, defendants, Michael J. Friesen, Lydia K. Friesen and Pauline G. Rains filed a motion to extend time for filing their responses. (Dk. 29). The Magistrate Judge granted the motion and extended the time to February 15, 1991. (Dk. 31).
On February 21, 1991, a motion to enlarge discovery deadlines and time for filing a response was filed by the defendants by and through their counsel Jon R. Craig and Phyllis F. Wendler. (Dk. 52). Jon R. Craig was the only attorney of record for defendant Rains. (Dk. 24). Even though the defendant's motion to enlarge was untimely and mentioned no basis for finding excusable neglect, the Magistrate Judge granted the defendants until April 5, 1991, to file their responses. (Dk. 55).
On April 5, 1991, a motion to extend time was filed. (Dk. 58). The motion said it was brought by the defendants and was signed only by Phyllis F. Wendler, the attorney of record for the Friesens. The motion does not mention defendant Rains or her counsel of record, Jon R. Craig. The plaintiff filed a memorandum in opposition on April 18, 1991, pointing out that defendant Rains had not joined in the motion and that the RTC's motion for summary judgment should be granted against her. (Dk. 61 at 2). Before this court entered its order of July 25, 1991, defendant Rains filed nothing contesting the RTC's position about her failure to join or even suggesting that she believed the April 5th motion was filed on her behalf. On this record, the district court granted the RTC's motion for summary judgment against defendant Rains as uncontested.
Defendants now move to alter, vacate and set aside the court's summary judgment order against Rains. Their two-page motion offers four conclusory reasons for the requested relief and is signed by Michael J. Friesen and Robert Johnson. Their two-page memorandum in support charges the court with applying double standards in the enforcement of local rules and with using legal technicalities to deny equitable relief to the defendants. The plaintiff responds that defendant Rains is not entitled to any relief under Federal Rules of Civil Procedure 59 and 60 and that she has no reason for claiming excusable neglect or surprise.
First, the court is concerned that defendant Rains' motion does not comply with Fed.R.Civ.P. 11, which provides in pertinent part: "Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated." The only attorney of record for defendant Rains is Jon R. Craig. Neither his signature nor his name appears on the defendant Rains' motion. Michael Friesen and Robert Johnson have signed the motion but neither attorney has entered his appearance for the defendant Rains. Robert Johnson has not signed this particular motion for Jon R. Craig. The court cautions the defendants that compliance with Fed.R.Civ.P. 11 is not a mere legal technicality and will be expected in future pleadings. In this instance, the court will overlook the noncompliance with Rule 11 and will address the merits of defendant Rains' motion.
Defendants' careless attitude towards the local rules of this court, as well as the Federal Rules of Civil Procedure, have forced them into the unenviable position of blaming the court for the consequences suffered with the rules enforced against them. This court does not accept that blame. The record fully reflects that this court and the Magistrate Judge have indulged the defendants on more than one occasion. The court believes it has enforced the rules of practice fairly and without favoritism to any party.
Prior to the April 5th motion, defendant Rains joined in motions of other defendants only by a pleading signed by her counsel of record. The plaintiff's discovery requests were separately answered by her. By virtue of plaintiff's memorandum in opposition filed in April of 1991, defendant Rains was on notice that she had not properly filed or joined in the motion for extension of time. Nonetheless, defendant Rains took no action such as filing a separate motion for extension, filing a reply brief indicating her excusable neglect, or filing for leave of the court to join in the earlier motion for extension. In other words, Rains did not simply overlook the rules for filing a motion but flatly refused to comply with the requirements once informed of them and waited for the court to enforce them. Such disregard of simple procedural rules cannot be called excusable neglect.
Motions to alter and amend are intended to correct manifest errors of law or fact or to present newly discovered evidence under limited circumstances. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.1986). Carelessness by a litigant or her counsel is not a ground for granting relief under Fed.R.Civ.P. 60(b)(1). Pelican Production Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir.1990). The burden is on the moving party to plead and prove excusable neglect. Id. The defendant Rains has presented nothing to show a manifest error of law or fact or to prove excusable neglect. For these reasons, the court denies the defendants' motion to alter, vacate and set aside the court's order of July 25, 1991.
The RTC filed its motion for summary judgment on October 24, 1990. On their third request for an extension of time, the Friesens were told by this court in the order of July 25, 1991, that their mere allegation for more discovery would not be adequate cause for additional extensions, that they should comply instead with Fed. R.Civ.P. 56(f), and that their response was due in twenty days. The Friesens filed their response on August 14, 1991, (Dk. 75) and followed this with a notice of stay pursuant to 11 U.S.C. § 362 filed September 6, 1991, (Dk. 85). The RTC filed a notice on December 3, 1991, stating that the Friesens' bankruptcy case had been dismissed with prejudice on November 5, 1991, pursuant to 11 U.S.C. § 1112(e). (Dk. 86).
A motion for summary judgment gives the judge an initial opportunity to assess the need for a trial. Without weighing the evidence or determining credibility, the court grants summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. at 2512.
An issue of fact is "genuine" if the evidence is significantly probative or more than merely colorable such that a jury could reasonably return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. An issue of fact is "material" if proof of it might affect the outcome of the lawsuit. 477 U.S. at 249, 106 S.Ct. at 2510-11. Factual inferences are drawn to favor the existence of triable issues, and where reasonable minds could ultimately reach different conclusions, summary judgment is inappropriate. See Riley v. Brown & Root, Inc., 896 F.2d 474, 476-77 (10th Cir. 1990).
The movant's initial burden under Fed. R.Civ.P. 56 is to show the absence of evidence to support the nonmoving party's case. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 345 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The movant must specify those portions of "`the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits if any,'" which demonstrate the absence of a genuine issue of fact. Windon, 805 F.2d at 345 (quoting Fed.R.Civ.P. 56(c)). It may be sufficient for the movant to establish that the alleged factual issues are without legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).
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