United States District Court, W.D. Oklahoma
NATALIE K. LOWE, Plaintiff,
UNITED SERVICES AUTOMOBILE ASSOCIATION, et al., Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff's Motion to Vacate Dismissal
Without Prejudice and Motion for Leave of Court to Respond
Out of Time to Defendant's Motion to Dismiss [Doc. No.
9]. Although Plaintiff invokes Fed.R.Civ.P. 60(b), the Motion
is not governed by that rule because no judgment has been
entered. Plaintiff instead seeks relief from an interlocutory
order that the Court may revise at any time before the entry
of a final judgment. See Warren v. Am. Bankers Ins.,
507 F.3d 1239, 1243 (10th Cir. 2007); Riggs v. Scrivner,
Inc., 927 F.2d 1146, 1148 (10th Cir. 1991). Defendant
United Services Automobile Association (USAA) has responded
[Doc. No. 10] in opposition to the Motion, and Plaintiff has
filed a reply brief [Doc. No. 11]. Thus, the Motion is ripe
asks the Court to revisit the Order of May 23, 2019 [Doc. No.
8], which dismissed without prejudice the action against
Defendant USAA based on the doctrine of fraudulent joinder.
The ruling was necessary to preserve diversity jurisdiction
because USAA's place of citizenship is not diverse from
Plaintiff's Oklahoma citizenship. The issue was raised by
a motion of USAA for dismissal under Rule 12(b)(6), to which
Plaintiff failed to respond. Plaintiff also did not move to
remand the case to state court, even though Defendant USAA
General Indemnity Co. had removed the case based on diversity
jurisdiction and allegations of fraudulent joinder. Thus,
although the Court declined to deem USAA's motion
confessed (because USAA sought a dismissal with prejudice on
the merits of Plaintiff's claim against it), the Court
observed that Plaintiff apparently agreed with
Defendants' position that she lacked a substantial claim
against USAA and had fraudulently joined USAA in an effort to
defeat diversity jurisdiction. See Order at 2.
instant Motion, Plaintiff asserts that appearances are
deceiving and she fully intended to oppose USAA's motion
and to file a motion for remand. Plaintiff explains her
silence as a mistake by her counsel and a mis-calendared
deadline. Accordingly, Plaintiff asks that the Court both
vacate the May 23 Order and authorize her to respond
out-of-time to USAA's motion. Plaintiff also states an
intention to file a motion to remand, although no filing has
standard of decision for Plaintiff's Motion seeking
relief from the May 23 Order is well-established:
“Grounds warranting a motion to reconsider include (1)
an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citations omitted); accord United
States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014).
“[A] motion for reconsideration is appropriate where
the court has misapprehended the facts, a party's
position, or the controlling law. It is not appropriate to
revisit issues already addressed or advance arguments that
could have been raised in prior briefing.” Servants
of Paraclete, 204 F.3d at 1012; see Christy,
739 F.3d at 539. Plaintiff's request to extend an expired
deadline is governed by Fed.R.Civ.P. 6(b)(1)(B), which
authorizes a court to allow untimely filings “if the
party failed to act because of excusable neglect.” The
standard of decision under this rule is also clear:
A finding of excusable neglect depends on four factors:
“ the danger of prejudice to the [non-moving party],
 the length of the delay and its potential impact on
judicial proceedings,  the reason for the delay, including
whether it was within the reasonable control of the movant,
and  whether the movant acted in good faith.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123
L.Ed.2d 74 (1993) (citation omitted). The most important
factor is the third; an inadequate explanation for delay may,
by itself, be sufficient to reject a finding of excusable
neglect. See United States v. Torres, 372 F.3d 1159,
1163 (10th Cir. 2004).
Perez v. El Tequila, LLC, 847 F.3d 1247, 1253 (10th
consideration, the Court finds that Plaintiff should be
granted relief from the May 23 Order. The Court clearly
misapprehended Plaintiff's position by construing her
silence as acceptance of USSA's argument that her
pleading failed to state a viable claim against it. The Court
also finds that the relevant factors for demonstrating
excusable neglect weigh in Plaintiff's favor. Plaintiff
acted quickly to correct her counsel's error, and
presumably, there will be no prejudice to USAA if its motion
is fully briefed and decided after consideration of
Plaintiff's arguments in support of her claim.
THEREFORE ORDERED that Plaintiff's Motion to Vacate
Dismissal Without Prejudice [Doc. No. 9] is GRANTED. The
Order of May 23, 2019 [Doc. No. 8] is hereby VACATED.
FURTHER ORDERED that Plaintiff's Motion for Leave of
Court to Respond Out of Time to Defendant's Motion to
Dismiss [Doc. No. 9] is GRANTED to the extent that Plaintiff
is authorized to file a response to Defendant ...