McMahan v. U.S. Bank National Association et al

1 / 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOHN M. MCMAHAN,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 4:22-CV-01525
RUSHMORE LOAN MANAGEMENT
SERVICES, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This case has been referred to the undersigned for recommendation on dispositive
matters. (Doc. No. 102.) Four motions are pending before the district court: (1)
Plaintiff’s motion for relief from judgment under Federal Rule of Civil Procedure 60(b)
(Doc. No. 97); (2) Plaintiff’s motion for an extension of time to file his Rule 60(b)
motion (Doc. No. 98); (3) Plaintiff’s motion for acceptance as timely filed (Doc. No. 99);
(4) Plaintiff’s amended motion for relief from judgment (Doc. No. 100). U.S. Bank filed
two responses to these motions. (Doc. Nos. 101, 103.) The undersigned has considered
the motions and responses and recommends that the district court DENY Plaintiff’s
motions.
United States District Court
Southern District of Texas
ENTERED
December 10, 2025
Nathan Ochsner, Clerk
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 1 of 13

2 / 13
A. Background.
This case was removed from the 125th Judicial District of Harris County, Texas,
in May 2022. (Doc. No. 1.) Plaintiff brought the suit to prevent the foreclosure on the
mortgage on his house. (Doc. No. 1-1, pp. 6, 10.) After intervening motion practice and
the dismissal of some parties, the remaining defendants and intervenors moved for
summary judgment on the claims in October 2023. (Doc. No. 56.)
In April 2024, United States Magistrate Judge Mitchel Neurock, on referral from
United States District Judge Lee H. Rosenthal, issued a memorandum and
recommendation (“M&R”) recommending that the district court grant Defendants’
motion for summary judgment. (Doc. No. 73.) The district court adopted Judge
Neurock’s recommendation, granting the motion on May 21, 2024. (Doc. No. 75.)
Plaintiff moved for reconsideration of that order under Federal Rule of Civil Procedure
59(e) (Doc. No. 79), but the Court denied his motion (Doc. No. 81). Defendants moved
for attorneys’ fees (Doc. No. 76), and the district court granted their motion and entered
its final judgment on September 16, 2024. (Doc. Nos. 92, 93.)
On Defendants’ motion (Doc. No. 94), the district court later amended its final
judgment to dismiss Plaintiff’s claims with prejudice and to enable Defendants to carry
out the terms of the final judgment. See Doc. No. 96. The district court’s amended final
judgment was entered on November 6, 2024. Id.
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 2 of 13

3 / 13
B. Plaintiff’s Rule 60(b) motions.
On November 14, 2025, more than a year after the district court entered its
amended final judgment, Plaintiff moved for relief from that judgment under Federal
Rule of Civil Procedure 60(b). (Doc. No. 97.) Plaintiff also moved for an extension of
time to file the Rule 60(b) motion that had already been docketed. (Doc. No. 98.) A few
days later Plaintiff moved to have his motions accepted as timely (Doc. No. 99), and he
also filed an amended Rule 60(b) motion (Doc. No. 101).
In his initial Rule 60(b) motion, Plaintiff argues that the district court should grant
relief from the judgment because he “was denied access to the court’s electronic filing
system . . . and did not receive timely electronic notice of court filings” beginning in
August 2023. (Doc. No. 97, p. 4.) He asserts that “these procedural barriers and legal
errors” constitute “excusable neglect under Rule 60(b)(1), a due process violation under
Rule 60(b)(4),” and an “extraordinary circumstance justifying relief under Rule
60(b)(6).” Id. at 5.
Plaintiff argues that his motion is timely because it was “filed within one year of
the amended final judgment.” (Doc. No. 97, p. 9.) Plaintiff does not further elaborate
why he believes the motion was made within a reasonable time. See id. He also requests
that the Court “issue a temporary restraining order” or “temporary injunction” to preserve
the status quo and prevent what he argues is the irreparable harm of losing his house. Id.
at 7. Plaintiff’s amended Rule 60(b) motion reiterates the arguments made in his initial
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 3 of 13

4 / 13
motion and likewise does not explain why his motions were made within a reasonable
time. See Doc. No. 101, pp. 3-8.
C. Law and analysis.
Plaintiff’s motions are untimely and meritless, and the district court should deny
them. “Federal Rule of Civil Procedure 60(b) permits ‘a party to seek relief from a final
judgment, and request reopening of his case, under a limited set of circumstances.’”
Kemp v. United States, 596 U.S. 528, 533 (2022) (quoting Gonzalez v. Crosby, 545 U.S.
524, 528 (2005)). But “Rule 60(c) imposes deadlines on Rule 60(b) motions.” Kemp,
596 U.S. at 533. Rule 60(c) requires that Rule 60(b) motions be made “within a
reasonable time,” unless “good cause” can be shown for the delay. In re Osborne, 379
F.3d 277, 283 (5th Cir. 2004) (quoting Pryor v. U.S. Postal Svc., 769 F.2d 281, 287–88
(5th Cir.1985)). While all Rule 60(b) motions must be made within a reasonable time,
motions made under Rule 60(b)(1)-(3) are subject to an additional restriction: they must
be made within one year after the entry of final judgment. Kemp, 596 U.S. at 533.
Additionally, Rule 60(b) motions may not be used to raise arguments that could have
been raised prior to judgment or to argue new legal theories, see Dial One of the Mid-S.,
Inc. v. BellSouth Telecommunications, Inc., 401 F.3d 603, 607 (5th Cir. 2005), and “final
judgments should not be lightly reopened.” Lowry Dev., L.L.C. v. Groves & Associates
Ins., Inc., 690 F.3d 382, 385 (5th Cir. 2012) (cleaned up).
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 4 of 13

5 / 13
1. Rule 60(b)(1): Plaintiff’s motion is untimely because it was filed
more than one year after entry of judgment.
Plaintiff’s first argument invokes Rule 60(b)(1), which allows a court to grant relief
from a judgment on the basis of “mistake, inadvertence, surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1). Plaintiff argues that the denial of access to the Court’s
electronic filing system, combined with the district court’s alleged failure to consider his
arguments, constitutes “excusable neglect” under Rule 60(b)(1). (Doc. No. 97, p. 5.)
Plaintiff’s bid for relief, however, is time barred. The Court entered its amended
final judgment on November 6, 2024, but Plaintiff did not file his motion for
reconsideration until November 14, 2025. His excusable neglect argument is thus
untimely. See Fed. R. Civ. P. 60(c)(1) (a motion under Rule 60(b)(1), (2), or (3) “must be
made . . . no more than a year after the entry of the judgment or order or the date of the
proceeding” being challenged).
Although Federal Rule of Civil Procedure 6(b)(1) allows courts to extend deadlines
in some circumstances, Rule 6(b)(2) specifically prohibits courts from “extend[ing] the
time to act under Rule[] … 60(b).” See e.g., United States v. Williams, No. CR 15-10,
2021 WL 53314, at *1 (E.D. La. Jan. 6, 2021) (“The Court is mindful of [movant’s] pro
se status and would normally consider the propriety of excusing such untimeliness. But
Rule 6(b)(2) explicitly states that “[a] court must not extend the time to act under Rule[ ] .
. . 60(b).”). The district court should reject Plaintiff’s Rule 60(b)(1) claim on this basis
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 5 of 13

6 / 13
alone. Plaintiff’s motions for an extension and for acceptance as timely filed likewise
should not be granted for the same reason.
2. Rules 60(b)(4) and 60(b)(6): Plaintiff’s motion is untimely
because it was not filed within a reasonable time after entry of
judgment.
Plaintiff also seeks relief under Federal Rules of Civil Procedure 60(b)(4) and
60(b)(6). Rule 60(b)(4) permits relief from judgment on the basis that the judgment is
“void.” Rule 60(b)(6), meanwhile, is a catch-all provision that permits relief for “any
other reason that justifies relief.” These arguments are not subject to Rule 60(c)(1)’s one-
year filing deadline, but nevertheless must still be made within a “reasonable time” after
entry of the final judgment. “What constitutes a ‘reasonable time’ depends upon the facts
of each case, taking into consideration the interest in finality, the reason for the delay, the
practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to
other parties.” Osborne, 379 F.3d at 283 (quoting Ashford v. Steuart, 657 F.2d 1053,
1055 (9th Cir. 1981)). Motions are typically found to be untimely where a party “offers
no explanation” for the delay in filing, especially if the “grounds he raises [in the motion]
were known” at the time of dismissal or denial. Lee v. Hattiesburg Med. Park Mgmt.
Corp., No. 2:18-CV-167, 2021 WL 6618590, at *3 (S.D. Miss. Mar. 4, 2021) (quoting
Scheanette v. Quarterman, 309 F. App'x 870, 873 n.2 (5th Cir. 2009)).
Plaintiff has not offered any reason, much less a “cogent explanation,” Bilbrey v.
Quarterman, No. 3:03-CV-1473, 2006 WL 1982489, at *2 (N.D. Tex. July 11, 2006),
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 6 of 13

7 / 13
why he waited more than a year to move for relief from the district court’s amended final
judgment. The only reference he makes regarding his motion’s timeliness is this
conclusory statement: “Plaintiff’s Rule 60 motion is timely, as it is filed within one year
of the amended final judgment.” (Doc. No. 97, p. 9.) But as discussed, Plaintiff’s motion
was not filed within one year of the entry of the amended final judgment: he missed the
one-year deadline. Courts throughout the Fifth Circuit have found Rule 60(b) motions
made after a similar length of time to be untimely. E.g., In re Garcia, 756 F. App'x 391,
394-95 (5th Cir. 2018) (per curiam) (Rule 60(b) motion not filed within a reasonable time
where appellant provided no explanation for five-month delay in filing); Goetz v. MSJ
P'ship, Civ. No. H-07-0838, 2008 WL 2038822, at *1 (S.D. Tex. May 12, 2008)
(Rosenthal, J.) (Rule 60(b) motion untimely when filed almost a year after court's
dismissal order, where plaintiff provided no explanation for the delay); Taylor v. Davis,
No. 4:17-cv-220, 2020 WL 524805, at *2 (N.D. Tex. Jan. 30, 2020) (Rule 60(b) motion
untimely when filed more than one year and three months after the entry of final
judgment where petitioner offered no explanation for delay).
Here, because the Rule 60(b) motion was filed only after a protracted delay, and
because Plaintiff fails to offer any reason why he waited so long to bring his motion, the
district court should conclude that Plaintiff has failed to demonstrate that he filed the
motion within a reasonable time after the amended judgment.
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 7 of 13

8 / 13
3. Alternatively, the district court should reject Plaintiff’s motion
for relief from judgment on the merits.
In any event, the district court should deny Plaintiff’s motion for relief from
judgment because it rehashes arguments from his motion for reconsideration of the
district court’s denial of his motion for leave to amend his complaint (Doc. No. 79),
which were already denied by the district court (Doc. No. 81). “A Rule 60(b) motion is
not an opportunity to rehash prior arguments.” Stewart v. Leonard, 695 F. App’x 800,
801 (5th Cir. 2017). Plaintiff assails the district court’s alleged failure to consider his
arguments, but the district court has already addressed Plaintiff’s contentions and
explained why reconsideration of its decision was not warranted. (Doc. No. 81, p. 2.)
Plaintiff simply reiterates his prior claims, but that is not a basis for relief under Rule
60(b).
Plaintiff’s claim that he is entitled to Rule 60(b) relief because he was denied
permission to use the Court’s electronic filing system fares no better. Plaintiff argues that
he is entitled to relief from the Court’s judgment under Rule 60(b)(1) because his failure
to file objections to Judge Neurock’s M&R was caused, at least in part, by not having
access to the Court’s electronic filing system. (Doc. No. 97, p. 5.)
Under this Court’s local rules, “the Court requires documents being filed to be
submitted, signed or verified by electronic means that comply with the procedures
established by the Court.” S.D. Tex. Civ. R. 5.1; see also Guidelines for Litigants
without Lawyers Southern District of Texas (“This summary does not take the place of a
pro se litigant’s responsibility to comply with the Local Rules . . . The requirements for
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 8 of 13

9 / 13
filing the complaint and all other pleadings are found in LR5 and LR10 . . . .”). “Gross
carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for
60(b)(1) relief.” Edward H. Bohlin Co. v. The Banning Co., 6 F.3d 350, 357 (5th Cir.
1993).
Plaintiff argues that he is entitled to relief under Rule 60(b)(1) because he was
unable to access the Court’s electronic filing system and file objections to Judge
Neurock’s M&R. (Doc. No. 97, p. 5.) To support his argument, he attaches three emails,
Exhibits 61, 62, and 63.1 Id.; (Doc. No. 101, pp. 93-97.) None of these emails is
persuasive for his excusable neglect claim.
Exhibit 61 contains a July 2023 email exchange between himself and the district
court’s case manager relating that he “was rejected from filing” his motions on PACER,
so he wanted to file his motions via email. (Doc. No. 101, p. 93.) The district court’s
case manager informed him that he would have to “file the motions in person or mail
them in.” Id. This email confirms that he had notice dating back to July 2023 that he
could not file documents by email, and that he should mail or bring in any documents in
person if he could not file electronically.
Exhibit 62 is an April 29, 2024, email exchange between himself and the district
court’s case manager stating that he was having computer difficulties which prevented
1 Plaintiff’s initial Rule 60(b) motion references several exhibits, but he did not attach any to that motion. Exhibits
61, 62, and 63 were attached to his motion for an extension, Doc. No. 98, p. 5, and his amended Rule 60(b) motion
(Doc. No. 101, pp. 93-97).
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 9 of 13

10 / 13
him from filing his objections to Judge Neurock’s M&R. (Doc. No. 101, p. 95.) No
response was attached. Id. Notably, this email was sent April 29, 2024, but any
objections to Judge Neurock’s M&R were due on April 25, 2024, see Doc. No. 73;
Plaintiff’s email was thus after the deadline and untimely in any event.
Exhibit 63 contains an August 2024 email exchange between himself and the
district court’s case manager stating that he could not access CM/ECF. (Doc. No. 98, p.
5.) But these emails were in relation to Plaintiff’s filing objections to the defendants’
motion for attorneys’ fees, not to the M&R from April 2024 regarding the motion for
summary judgment. See Doc. Nos. 84, 88, 98. As stated, any objections to Judge
Neurock’s M&R were due on April 25, 2024, so Plaintiff’s email from August 2024 does
not support his argument that he was actively communicating about filing issues at the
time his objections to the M&R were due.
These emails do not support Plaintiff’s claims of excusable neglect. If anything,
they show that (1) he had notice that he needed to file documents by mail or in person if
he was having trouble with CM/ECF, (2) his M&R objections would have been untimely
even if he had access to electronic filing, and (3) his notice to the district court about his
trouble with electronic filing was made months after the relevant deadline. Thus, there
was no excusable neglect under Rule 60(b)(1), and the district court should find that this
argument fails.
Second, Plaintiff argues that he is entitled to relief from the district court’s
judgment because it is void under 60(b)(4). “Rule 60(b)(4) applies only in the rare
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 10 of 13

11 / 13
instance where a judgment is premised either on a certain type of jurisdictional error or
on a violation of due process that deprives a party of notice or the opportunity to be
heard.” Sec. & Exch. Comm'n v. Novinger, 40 F.4th 297, 302 (5th Cir. 2022) (quoting
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)). Plaintiff’s Rule
60(b)(4) argument alleges a due process violation: he argues that his due process rights
were violated because he could not access the Court’s electronic filing system. (Doc No.
97, pp. 4-5.) “[T]he due process right that Rule 60(b)(4) implicates is the right to “notice
‘reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.’”
Novinger, 40 F.4th at 303 (cleaned up). “This rule applies in ‘rare’ circumstances
‘because due process in civil cases usually requires only proper notice and service of
process and a court of competent jurisdiction.’” Id. (cleaned up).
Plaintiff’s argument lacks merit because he had notice (1) of the filings and (2)
that he should file his documents in person or by mail if he could not access the Court’s
electronic filing system. Plaintiff has not made a proper showing that he did not have
access to the Court’s electronic filing system, and even then, the emails he claims exist
would have been sent long before Judge Neurock’s M&R and the district court’s entry of
final judgment. Plaintiff was afforded all the process that was required, and he is not
entitled to relief under Rule 60(b)(4).
Finally, Plaintiff argues that he is entitled to relief because of his lack of access to
the electronic filing system constituted an extraordinary circumstance under Rule
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 11 of 13

12 / 13
60(b)(6). Rule 60(b)(6) requires a “movant to demonstrate how ‘the initial judgment’
was ‘manifestly unjust.’” In re Westcott, 135 F.4th 243, 248 (5th Cir. 2025) (quoting
Bohlin, 6 F.3d at 357). Plaintiff’s instant motion rechallenges the motion for summary
judgment, making arguments about standing, a material alteration of the allonge, and the
district court’s alleged failure to address all material claims and evidence.2 (Doc. No. 97,
pp. 10-26.) But these arguments do not show that the district court’s final judgment was
manifestly unjust, they merely rehash arguments that were made in Plaintiff’s response to
the motion for summary judgment, see Doc. No. 61, and in his motion for reconsideration
under Rule 59(e), see Doc. No. 79. Plaintiff has not made any arguments that prove the
district court’s judgment is anything other than “indisputably correct,” Westcott, 135
F.4th at 248, so the district court should find that Plaintiff is not entitled to relief under
Rule 60(b)(6).
D. Conclusion and recommendation.
The district court should DENY Plaintiff’s Rule 60(b) motions for relief from
judgment (Doc. Nos. 97, 101), Plaintiff’s motion for extension of time (Doc. No. 98), and
Plaintiff’s motion for acceptance as timely filed (Doc. No. 99).
E. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within 14 days after being served with a copy of the
2 Plaintiff did not actually make these arguments he claims the Court did not address, but states that he planned to
“supplement and fully brief all claims once given the opportunity . . . .” (Doc. No. 97, p. 15.)
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 12 of 13

13 / 13
Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), and General Order No. 2002-13, United States
District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 14 days after
being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the District Court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415
(5th Cir. 1996) (en banc).
Respectfully recommended on December 10, 2025.
____________________________
Julie K. Hampton
United States Magistrate Judge
Case 4:22-cv-01525 Document 104 Filed 12/10/25 in TXSD Page 13 of 13