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Garcia v. JPMorgan Chase Bank NA

United States District Court, D. Arizona

March 30, 2018

Patricia Garcia, Plaintiff,
JPMorgan Chase Bank NA, et al., Defendants.



         Defendants JP Morgan Chase, N.A. (“Chase”) and Bank of America, N.A. (“BANA”) move for an award of attorneys' fees against Plaintiff Patricia Garcia pursuant to fee shifting provisions within Garcia's promissory note (“Note”) and corresponding Deed of Trust (“DOT”). (Doc. 119.) Defendants also seek an award of fees jointly and severally against Garcia, her current attorneys Daniel Cracchiolo and Barbara Forde, her former attorney Monique Wilhite, and their respective law firms and marital communities pursuant to A.R.S. § 12-349 and 28 U.S.C. § 1927. The relevant background may be found in the Court's June 22, 2017 order dismissing this action (“Garcia II”) (Doc. 117), and April 5, 2017 order granting summary judgment for Defendants in the related case of Garcia v. JP Morgan Chase Bank NA, et al., No. CV-15-01493-PHX-DLR (“Garcia I”) (Doc. 278 in Garcia I).[1] The Court grants Defendants' motion in part, as explained below.[2]

         I. Preliminary Issues

         Before turning to the merits, the Court addresses three preliminary issues: (1) the duplicative responsive briefing on whether Defendants are entitled to fees against Garcia pursuant to the Note and DOT, (2) Garcia's improper request for reconsideration or vacatur, and (3) the adequacy of the parties' efforts to meet and confer on Defendants' fee request.

         A. Duplicative Briefing

         Defendants seek an award of fees against Garcia and her current and former attorneys, Wilhite, Cracchiolo, and Forde. Wilhite withdrew as counsel for Garcia on June 7, 2016, and therefore does not represent Garcia in opposing Defendants' fee request. (Doc. 20.) Wilhite appropriately filed a separate response memorandum addressing only Defendants' request for fees against her personally. (Doc. 142.)

         Cracchiolo and Forde, however, both remain counsel of record for Garcia. Though the Court can understand why Forde and Cracchiolo decided to separately address Defendants' request for fees against them personally, the Court did not expect to receive separate briefs addressing the fee request against Garcia. A litigant is not entitled to as many responses as she has attorneys. Yet that is what happened with respect to Defendants' request for fees against Garcia pursuant to the fee-shifting provisions of the Note and DOT. (See Docs. 139 at 13-14; 148 at 3-4.) This duplicative briefing is another manifestation of a persistent problem throughout this litigation: the lack of adequate coordination and communication between Cracchiolo and Forde. (See, e.g., Docs. 117 at 9-10; Doc. 148-2 at 24 ¶ 2.) The Court nonetheless will consider the duplicative briefing as to the fee request against Garcia, as Defendants have not objected to it. Where relevant, the Court will specify whether an argument is found in the response filed by Cracchiolo (“Cracchiolo response”) or the response filed by Forde (“Forde response”).

         B. Reconsideration or Vacatur of the Court's Dispositive Order

         In responding to Defendants' contention that this case was groundless and not brought in good faith, Garcia comments almost in passing that the evidence justifies either reconsideration or vacatur of the Court's dismissal order under Federal Rule of Civil Procedure 60. (Docs. 139 at 2; Doc. 148 at 10.) Garcia has not properly moved for such relief.

         Indeed, this case's appellate history highlights why it is imperative for parties to actually move for relief and not just casually allude to it in unrelated filings. Garcia noticed an appeal on July 17, 2017, which she amended on July 26, 2017 after the Court formally entered judgment. (Docs. 124, 132.) Had Garica properly moved for reconsideration of the Court's dismissal order, or for Rule 60 relief within 28 days after the Court entered judgment on July 20, 2017, the Ninth Circuit would have held her notice of appeal in abeyance until the Court ruled on her motion. See Fed. R. App. P. 4(a)(4); Leader Nat'l Ins. Co. v. Indus. Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir. 1994). That did not happen. Rather, Garcia's appeal proceeded for several months until the parties stipulated to dismissal, resulting in the Ninth Circuit issuing its mandate on December 5, 2017. (Doc. 154.) Thus, not even the Ninth Circuit understood Garcia to have properly moved for reconsideration or other post-judgment relief.

         In addition to not actually moving for relief, Garcia's passing requests for reconsideration or vacatur are substantively and procedurally improper. First, in the Cracchiolo response, Garcia suggests that the Court should reconsider the merits of this case. (Doc. 139 at 2.) Pursuant to LRCiv 7.2(g)(2), however, “[a]bsent good cause shown, any motion for reconsideration shall be filed no later than fourteen (14) days after the date of the filing of the Order that is the subject of the motion.” The Court issued its dismissal order on June 22, 2017 and entered judgment based on that order on July 20, 2017. Even taking the latest of these two dates, any motion for reconsideration was due by no later than August 3, 2017. Garcia's passing references to reconsideration are made in a response memorandum filed on September 6, 2017, over a month late, and she has not shown good cause for the delay.[3] Nor does her one-sentence allusion to reconsideration comply with the requirements of LRCiv 7.2(g)(1).

         Next, in a footnote to the Forde response, Garcia argues that that the judgments in Garcia I and Garcia II should be vacated under Rule 60. (Doc. 148 at 10 n.11.) The Court will not consider any such argument concerning the summary judgment order in Garcia I; it should go without saying that if Garica wants relief in Garcia I, she must file a motion in that case and not in this one. As for Garcia's suggestion that the Court should vacate the judgment in this case, Garcia did not follow the appropriate procedure for requesting such relief after she filed her appeal. Specifically,

[o]nce an appeal is filed, the district court no longer has jurisdiction to consider motions to vacate judgment. However, a district court may entertain and decide a Rule 60(b) motion after notice of appeal is filed if the movant follows a certain procedure, which is to ask the district court whether it wishes to entertain the motion, or to grant it, and then move [the appeals court], if appropriate, for remand of the case.

Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007) (internal quotations and citations omitted). This did not happen.

         Garcia's failure to follow this procedure raises concerns about whether the Court may properly entertain her request for post-judgment relief now. Indeed, all the arguments raised in her response briefs could and likely would have been made in her appellate briefs had she not dismissed her appeal. For the Court to consider them now, after Garcia has dismissed her appeal and the Ninth Circuit has issued its mandate, would afford her an impermissible second bite at the apple. Moreover, Garcia has since filed for bankruptcy, meaning further prosecution of these matters would be complicated by the bankruptcy stay. It therefore is not clear that Garica still desires post-judgment relief. These subsequent developments, coupled with the absence of a formal motion requesting such relief, counsel against the Court further entertaining these arguments in this order.

         C. Adequacy of the Meet and Confer

         Local Rule of Civil Procedure 54.2(d)(1) states:

No motion for award of attorneys' fees will be considered unless a separate statement of the moving counsel is attached to the supporting memorandum certifying that, after personal consultation and good faith efforts to do so, the parties have been unable to satisfactorily resolve all disputed issues relating to attorneys' fees or that the moving counsel has made a good faith effort, but has been unable, to arrange such conference. The statement of consultation shall set forth the date of the consultation, the names of the participating attorneys and the specific results or shall describe the efforts made to arrange such conference and explain the reasons why such conference did not occur.

         In accordance with this rule, Defendants submitted a separate statement of consultation that explained the following:

Defendants . . . provide this statement of consultation with . . . Garcia's counsel pursuant to LRCiv 54.2(d)(1). On July 6, 2017, Defendants' counsel sent counsel for [Garcia], including former counsel Monique Wilhite and current counsel Daniel Cracchiolo and Barbara Forde, email correspondence requesting to schedule a time to meet and confer regarding Defendants intention to file a motion for attorneys' fees. Ms. Forde and Ms. Wilhite responded. Ms. Wilhite declined to participate in the meet in confer because she is no longer counsel of record.
Subsequently, on July 6, 2017, Ms. Forde stated that Garcia objects to a request for attorneys' fees and further that Ms. Forde believes this Court might deny a motion for attorneys' fees in light of Garcia's intention to appeal this Court's decision.

(Doc. 120.)

         In the Forde response, Garcia contends that Defendants' efforts to meet and confer were inadequate because Defendants did not specify that they intended to seek sanctions against Garcia's current and former attorneys, nor did they make a good-faith effort to resolve the dispute. (Doc. 148 at 2.) For support, Garcia attaches the emails exchanged on June 6, 2017. (Doc. 148-2 at 49-51.) In relevant part, Daniel Crane, counsel for Defendants, emailed Cracchiolo, Forde, and Wilhite the following: “Please let me know if you are available today to meet and confer regarding Defendants . . . intention to file a motion for attorneys' fees based upon the Court's dismissal of Ms. Garcia's claims in Garcia II.” (Id. at 50.) Forde replied:

I am traveling and just arrived in Nashville.
I would recommend you contact the court, as my understanding is that Judge Rayes will simply deny any attorney fee motion pending appeal. And as Bob Shely knows, if we don't settle through the Ninth Circuit mediation program, Garcia II will be appealed. If you have a ...

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