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Moreland v. Bank of New York Mellon

United States District Court, S.D. Georgia, Brunswick Division

October 15, 2014

DAVID L. MORELAND, Plaintiff,
v.
THE BANK OF NEW YORK MELLON, f/k/a The Bank of New York successor to JP Morgan Chase Bank, NA successor to Chase Manhattan Bank, successor to Chemical Bank, as Trustee for 1MG Home Loan Equity Trustee 1998-1 by Select Portfolio Servicing, Inc., its Attorney-in-fact, Richard B. Maner, P.C., Attorney at Law, Defendants.

ORDER

JAMES E. GRAHAM, Magistrate Judge.

Plaintiff, proceeding prose, filed this complaint on July 29, 2014. Defendant The Bank of New York Mellon, f/k/a The Bank of NY, successor to JP Morgan Chase Bank, N.A. successor to Chase Manhattan Bank, successor to Chemical Bank, as Trustee for IMC Home Loan Equity Trustee 1998-1 and Select Portfolio Servicing, Inc. has filed a Renewed Motion to Dismiss Plaintiffs Original Complaint and Motion to Dismiss Plaintiffs Amended Complaint.

The Court is reluctant to rule on said motion without receiving a response from the Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by his failure to respond. Once such a motion is filed, the opponent should be afforded a reasonable opportunity to respond to or oppose such a motion. This Court must consider that the Plaintiff in this case is a pro se litigant. Haines v. Kerner , 404 U.S. 519, 520 (1972). When a defendant or defendants file a motion to dismiss, the court must construe the complaint liberally in favor of plaintiff, taking all facts alleged by the plaintiff as true, even if doubtful in fact. Bell Atlantic Corp. v. Twombly , 550 U.S. 554, 555 (2007).

The granting of a motion to dismiss without affording the plaintiff either notice or any opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S. , 631 F.3d 1321, 1336-37 (11th Cii. 2011), A local rule, such as Local Rule 7.5 of this court, [1] should not in anyway serve as a basis for dismissing a pro se complaint where, as here, there is nothing to indicate plaintiff ever was made aware of it prior to dismissal. Pierce v. City of Miami , 176 F.Appx. 12, 14(11th Cii. 2006).

Accordingly, Plaintiff is hereby ORDERED to file any objections to said Defendant's motions for a dismissal, or to otherwise inform the court of his decision not to object to Defendant's motions within twenty-one (21) days of the date of this Order. Tazoe , 631 F.3d at 1336 (advising that a court can not dismiss an action without employing a fair procedure). Should Plaintiff not timely respond to said Defendant's motions, the Court will determine that there is no opposition to the motion. See Local Rule 7.5. In order to assure that Plaintiffs response is made with fair notice of the requirements of the Federal Rules of Civil Procedure regarding motions to dismiss, generally, and motions to dismiss for failure to state a claim upon which relief may be granted, the Clerk of Court is hereby instructed to attach a copy of Rule 41, FED. R. Civ. P., as well as Rule 12, FED. R. Civ. P., to the copy of this Order that is served on the Plaintiff.

SO ORDERED


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