Smiley v. Nationstar Mortgage LLC

Middle District of Florida, flmd-8:2016-cv-01065

ORDER ATTACHED denying {{35}} Motion for Reconsideration of {{34}} Order on Motion to Reopen Case. Signed by Judge Richard A. Lazzara on 12/2/2016. (CCB)

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PageID 268 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION NATHANIEL SMILEY, Plaintiff, v. CASE NO. 8:16-cv-1065-T-26AEP NATIONSTAR MORTGAGE, LLC, d/b/a Championship Mortgage Company, and VERTICAL LEND, INC., Defendants. / ORDER UPON DUE AND CAREFUL CONSIDERATION of the procedural history of this case, together with Plaintiff's counsel's written submissions, it is ORDERED AND ADJUDGED that the Motion to Reconsider Motion to Reopen Case (Dkt. 35) is denied. Plaintiff, even if indigent as his counsel alleges, is not foreclosed from reinstituting this case by seeking in forma pauperis status pursuant to 28 U.S.C. § 1915 which would enable him to proceed without prepayment of the Clerk's filing fee and to have the assistance of the United States Marshal Service to effect service of process on Defendant Vertical Lend, Inc., free of charge. Furthermore, Plaintiff is bound by the negligent acts of his counsel (as counsel detailed in the motion) whom he chose to represent him. See Pioneer Invest. Serv. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396, 113 S.Ct. 1489, 1499, 123 L.Ed.2d 74 (1993); see also PageID 269 Downs v. McNeil, 520 F.3d 1311, 1320 (11th Cir. 2008) (quoting Pioneer for the proposition that "clients must be held accountable for the acts and omissions of their attorneys."). Finally, even if Plaintiff's counsel had timely applied for a default final judgment, this Court would have denied such relief to Plaintiff because the allegations of count one of the second amended complaint, even when viewed in the light most favorable to Plaintiff, wholly fail to allege a cause of action for fraud in the inducement against Defendant Vertical Lend, Inc. Consequently, there is not a sufficient basis in Plaintiff's second amended complaint justifying the entry of a default judgment against Defendant Vertical Lend, Inc. See Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015). DONE AND ORDERED at Tampa, Florida, on December 2, 2016. s/Richard A. Lazzara RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE COPIES FURNISHED TO: Counsel of Record -2-