United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (MOTION TO REOPEN)
E. HUDSON UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on pro se Plaintiff
Lokesh Babu Vuyyuru's ("Plaintiff) Motion to Reopen
(ECF No. 6), filed on April 7, 2016. Plaintiff moves this
Court "to reopen this case since [he] is filing this
motion to vacate the ruling for further proceedings to
continue [his] case" against Defendants Wells Fargo
Bank, National Association ("Wells
Fargo") and Ocwen Loan Servicing, LLC
("Ocwen") (collectively "Defendants").
For the reasons set forth below, the Court will deny in part
and grant in part Plaintiffs Motion.
October 6, 2015, Plaintiff filed his original, forty-page
Complaint, alleging various common law and statutory counts
and requesting declaratory and injunctive relief. On October
27, 2015, Defendants moved to dismiss Plaintiffs Complaint in
its entirety. Pursuant to Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), and Local Rule 7, Defendants
provided the required notice to Plaintiff that he had
twenty-one days to respond and the Court could dismiss his
suit should he not respond. Plaintiff failed to file any
Order (ECF No. 5) and Memorandum Opinion (ECF No. 4), this
Court granted Defendants' Motion to Dismiss. The Court
dismissed with prejudice Plaintiffs claim pursuant to
Virginia Code § 6.2-1629 and denied any request for
preliminary injunctive relief to the extent Plaintiff sought
it. The Court dismissed without prejudice Plaintiffs claims
for breach of contract and fraud, for violations of the
Virginia Consumer Protection Act, the Fair Debt Collection
Practices Act, and the Real Estate Settlement Procedures Act,
as well as his request for declaratory relief. The Court
notified Plaintiff that he was free to amplify the factual
and legal basis on which those claims rested and refile, as
well as that Plaintiff had thirty days to note any appeal.
now asks this Court to reopen his case pursuant to Federal
Rule of Civil Procedure 60. He claims that upon filing his
case, he never served Defendants, and when contacted by the
Clerk's office about doing so, Plaintiff relayed that he
would "serve them at a later time." (Mot. Reopen
("PL's Mot.") 2.) Plaintiff also sent via
Federal Express a copy of the Complaint to Defendant Ocwen.
(Defs.' Opp'n PL's Mot. Reopen Case 2, ECF No.
7.) Plaintiff claims that he told the registered agent of his
"intent to continue [the] action just putting on
notice." (Pl.'s Mot. 2.) Plaintiff asserts an
attorney for Defendant Ocwen filed the response to Plaintiffs
Complaint and claimed to have sent it to Plaintiffs address,
but Plaintiff avers he never received it. (Id. at
Rule of Civil Procedure 60(b) allows for a court to relieve a
party from a final judgment, order, or
proceeding. A court may grant relief pursuant to the
Rule for six enumerated reasons: (1) mistake or excusable
neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or misconduct; (4) judgment is void; (5)
judgment has been satisfied, discharged, or released; (6) any
other reason justifying relief. Plaintiff purports to bring
his motion "pursuant to Rule 60(b)(5)(6)."
(PL's Mot. 1.) Thus, it appears Plaintiff seeks to reopen
this matter pursuant to either subsection (5) or (6). The
Court addresses each in turn.
60(b)(5) allows a court to relieve a party from a final
judgment, order, or proceeding if "the judgment has been
satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable." Here, Plaintiff
bases his argument on the premise that this Court should
never have proceeded because he opted not to serve all
Defendants upon filing of his Complaint. He also baldly
claims that he never received Defendants' Motion to
Dismiss, even though Defendants provided proof of delivery to
Plaintiffs address. Accordingly, Plaintiff neither
demonstrates that the judgment has been satisfied, released,
or discharged, nor asserts an earlier judgment served as the
basis for dismissal of his claims. He fails to show that
applying the judgment prospectively would no longer be
60(b)(6) is a "catch-all phrase" allowing the Court
to afford relief for any other justifiable reason.
Nat'l Credit Union Admin. Bd, 1F.3dat266.
Although broadly sweeping, the Fourth Circuit has counseled
Rule 60(b)'s remedy should only be invoked in exceptional
circumstances. Id. (quoting Compton v. Alton
Steamship Co., 608 F.2d 96, 102 (4th Cir. 1979)). As
noted above, Plaintiff asks to reopen this case because he
decided that although he provided Defendants' agent with
a copy of his Complaint, he did not want to serve Defendants
formally upon filing his Complaint. No exceptional
circumstance exists warranting relief pursuant to Rule
60(b)(6). Accordingly, Plaintiff fails to establish that Rule
60 affords him relief in this matter.
Plaintiff fails to show that this Court should grant his
requested relief pursuant to Rule 60, Plaintiff does
"respectfully request that the court reopen this case,
and allow [P]laintiff [to] proceed with the filing of her
[sic] motion to vacate under this case number, and without
the need for filing a new and separate case." (Pl.'s
Mot. 4.) Construing Plaintiffs filing broadly, see Laber
v. Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006), as
best the Court can discern, Plaintiff seeks to continue to
pursue his case under this case number without having to
institute a new action.
the Court previously dismissed a portion of Plaintiff s
Complaint with prejudice, the Court dismissed the majority of
Plaintiff s counts without prejudice because Plaintiff failed
to meet pleading requirements set forth in the Federal Rules.
(Mem. Op. 14-15.) With respect to the claims dismissed
without prejudice, the Court notified Plaintiff that he was
"free to amplify the factual and legal basis on which
[those] claims rest[ed] and refile his claims."
(Id.) Accordingly, to the extent Plaintiffs Motion
seeks permission to file an amended complaint for those
claims in this case, the Court will grant the Motion. See
Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d619, 630
(4th Cir. 2015) (remanding with instructions to allow pro
se party to file amended complaint where grounds for
dismissal did not clearly preclude amendment).
for the reasons set forth above, the Court will deny in part
and will grant in part Plaintiffs Motion to Reopen (ECF No.
6). The Court will deny the Motion for relief sought pursuant
to Rule 60. The Court will grant the Motion to the extent
Plaintiff seeks to file an amended complaint. Should
Plaintiff wish to file an amended complaint, the Court will
order Plaintiff to file it within thirty (30) days. Upon
submission, the Court will direct the Clerk to reopen the
case on this Court's docket.
Court reminds Plaintiff that although he proceeds pro
se, he still must comply with this Court's Local
Rules. Local Civil Rule 83.1(M) requires that a pro
se party shall certify in writing and under penalty
of perjury that any document filed with the Court has not
been prepared by, or with the aid of, an attorney. E.D. Va.
Loc. R. 83.1(M). If, however, an attorney has prepared or
assisted in preparing the document, the pro se party
must identify that attorney in the certification.
Id. Any attorney who prepares a document that is
filed for a person who is either known by the attorney, or
reasonably expected by the attorney, to be proceeding pro
se, shall be considered to have entered an
appearance in the proceeding in which such document is filed
and subject to all rules governing attorneys who have
formally appeared in the proceeding. Id.
appropriate Order will accompany ...