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Clemmons v. Wells Fargo Bank, N.A.

United States District Court, District of Kansas

March 18, 2015

Cleo Clemmons, Administrator of the Estate of Sheila Bowers, deceased, et al., Plaintiffs,
Wells Fargo Bank, N.A., et al., Defendants.



This matter is before the court on the defendant Wells Fargo’s Motion for Sanctions (Dkt. 49) under FED.R.CIV.Pr. 11, and the plaintiffs’ Motion to Alter and Amend the dismissal of the action. (Dkt. 87).

The present action arises from the decision of an elderly couple, Roy and Sheila Bowers, to refinance their home. The couple reached a satisfactory agreement for refinancing with the lender Wells Fargo. However, the escrow agent assigned to the case mistakenly released the first mortgage lien prior to the closing. The Bowers made several months payments before the error was discovered. Aided by their present counsel, the Bowers brought an action against an electronic mortgage servicing entity employed by Wells Fargo alleging fraud, conversion, slander of title, and other misconduct. Bowers v. MERS, No. 10-4141-JTM (Bowers I). Wells Fargo intervened in the action. After extensive discovery and litigation, the court granted the defendants’ motions for summary judgment, denying the Bowers’s claims, and granting Wells Fargo’s counterclaim seeking an equitable mortgage on the residence, based on the terms of the intended refinancing. Finding the plaintiffs’ claims lacking in any substantial merit, the court also granted the defendants’ motion for attorney fees.

After the termination of Bowers I, and while the appeal in that case was pending before the Tenth Circuit, counsel for plaintiffs filed this action (Bowers II) in Shawnee County, Kansas District Court. The 192-paragraph Complaint filed in Bowers II is essentially a carbon copy of that filed in Bowers I, except that counsel added claims against Wells Fargo’s attorneys in Bowers I, the law firm of Shapiro & Mock, LLC. The claims against Shapiro & Mock are premised entirely on their actions in seeking to protect Wells Fargo’s mortgage interest in the property.

After Wells Fargo moved to dismiss the action, plaintiffs’ counsel sought and obtained multiple extensions to file a response, in part based upon the death of Sheila Bowers. Counsel subsequently filed an Amended Complaint (Dkt. 30) which advanced no new cause of action. Rather, the Amended Complaint simply reworded a few of the allegations from the original Complaint.

Only two days later, counsel for plaintiffs filed a Motion to Substitute Second Amended Complaint (Dkt. 31). In a declaration attached to the motion, counsel stated that she “has had more time to reflect” on the Amended Complaint, and believed it was “necessary” to advance aditional allegations. The Second Amended Complaint raises arguments with respect to discovery disputes addressed in Bowers I.

On December 22, 2014, the Tenth Circuit affirmed this court’s award of summary judgment in Bowers I.

On December 30, 2014, this court granted the motions to dismiss (Dkt. 15, 24, 37, 42) filed by the defendants in Bowers II. (Dkt. 83). The court found that the Bowers’ claims were barred by the doctrine of res judicata and the statute of limitations. Noting the death of Roy Bowers during the pendency of Bowers I, and of Sheila Bowers during Bowers II, the court concluded that these losses were made “doubly unfortunate that [their] last years were marked by the meritless litigation urged on by their counsel.” (Id. at 11).

The motion for sanctions now before the court was filed prior to the Order dismissing the action. Resolution of the sanctions motion was delayed by repeated requests for extensions of time for the filing of plaintiffs’ response (Dkt. 54, 61, 71, 75).

Motion to Alter and Amend

Before addressing plaintiffs’ Motion to Alter and Amend the dismissal of the action, the court first must address plaintiffs’ recently-filed Motion for Reconsideration (Dkt. 107), which seeks to overturn the court’s denial of a requested extension of time to file a reply in support of the motion to alter and amend. The only basis for relief cited in the motion for extension was an unspecified out-of-town trip by plaintiff’s counsel. The court denied the request, noting “(a) the fact that counsel's out-of-town travel does not commence until March 12, 2015; (b) the extremely brief Responses (Dkts. 103, 104) of the defendants to the Motion to Alter and Amend; and (c) the protracted nature of the present litigation, pending nearly a year, in which the relevant res judicata issues have been manifest from the date of the Wells Fargo's initial Motion to Dismiss, filed April 14, 2014.” (Dkt. 106).

The present Motion for Reconsideration offers a variety of grounds, coupled with a general insinuation that the court considers “distasteful [counsel’s] advocacy on issues that I believe in on facts that I am very certain are true.” (Dkt. 107, at 4) The motion further contends that counsel suffers from “medical restrictions” and that as a result under the Americans with Disabilities Act, 42 U.S.C. § 12010 et seq. she “should be afforded reasonable accommodation.” (Id., at 1, 2).Counsel suggests the denial was premised on “hostility upon possible assumptions [which] just cast doubts upon the case.” (Id. at 3). In these comments, counsel apparently is elliptically referring to separate litigation brought by another Kansas attorney, seeking to stave off his disbarment. Hawver v. Marten, No. 14-4084-DGK.[1] Counsel also represents her “full belief that Roy and Sheila [her late clients] would expect that we go” on the “planned spring break trip with my daughter and husband. (Id. at 4, 5). Finally, counsel again references other litigation in which she states she has “had very successful outcomes and these types of claims in the six figure range.” (Id. at 4) (emphasis by counsel).

Reconsideration is not justified. Counsel’s medical condition was not cited as grounds for the extension, only the planned vacation. The Court will not consider such a new argument raised for the first time in a motion for reconsideration. HR Tech., v. Imura Internat’l, 2011 WL 836734, *3 (D. Kan. March 4, 2011). The suggestion that the court has not been accommodating to counsel or bears her any personal animosity is completely devoid of any rational basis in fact.

The original rationales for the denial of the extension remain fully applicable. The out-of-town travel, now acknowledged to be entirely personal in nature, did not commence until the day before the deadline for a response. The defendants’ Responses to the Motions to Alter and Amend (Dkts. 103, 104) were extremely brief, each presenting no more than three pages of argument. Finally, given the many extensions previously granted counsel, and the great length of time already allotted to ...

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