Gerst et al v. HSBC Bank USA, N.A.

Filing 16

ORDER. The November 6, 2014 Judgment is hereby SET ASIDE only as it relates to Charmayne Smith. 14 . The Clerk is directed to (1) reopen the case; (2) in light of the Court's previous orders, terminate Marc H. Hoffman and Mark James Bernet fro m the docket so that they no longer receive CM/ECF email notifications from the Court in this matter; (3) in light of the Court's previous orders, terminate the other non-Smith plaintiffs from the case (see Doc. #13; Doc. #14); (4) change Smith& #039;s name from "Smith Charmayne" to "Charmayne Smith" on the docket; (5) add Smith's mailing address to the docket (See Doc. #12); (6) immediately mail a copy of this Order to Smith; and (7) in light of paragraph one, file an appropriate Amended Judgment on the docket. Plaintiff Charmayne Smith has up to and including December 22, 2014 to properly serve Defendant HSBC Bank USA, N.A. with the operative complaint and file her return of service notification on the docket. Failure to timely comply with this deadline will result in the case being dismissed without prejudice for failure to prosecute. Signed by Judge Sheri Polster Chappell on 11/20/2014. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHARMAYNE SMITH,
Plaintiff,
v.

Case No: 2:14-cv-201-FtM-38CM

HSBC BANK USA, N.A.,
Defendant.
/
ORDER1
This matter comes before the Court on review of the docket. This action was
initiated on April 7, 2014, when eleven individual plaintiffs represented by Marc H.
Hoffman of The Hoffman Law Group filed a complaint against Defendant HSBC Bank
USA, N.A. (Doc. #1). After the complaint was filed, 120 days passed without notification
of service. Consequently, on August 15, 2014, the Court issued an Order to Show Cause
as to why the case should not be dismissed for failure to prosecute. (Doc. #8). In
response, Mark James Bernet, the receiver of The Hoffman Group, filed a status report.
(Doc. #9). The status report explained, among other things, that The Hoffman Law Group
was closed. In light of the status report, the Court stayed the case. The Court also warned
the plaintiffs that the case would be dismissed for failure to prosecute unless the plaintiffs
obtained new counsel or declared their intentions to proceed pro se by October 30, 2014.

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ceases to work or directs the user to some other site does not affect the opinion of the court.

(Doc. #10; Doc. #12). The Court did not receive any communication from any plaintiff by
the October 30th deadline. As a result, the Court dismissed the case without prejudice for
failure to prosecute and the Clerk entered judgment accordingly. (Doc. #13; Doc. #14).
Meanwhile, Plaintiff Charmayne Smith wrote and mailed a letter to the Court on
October 25, 2014. (Doc. #15). The Court received the letter on November 12, 2014. (Doc.
#15). Thereafter, on November 19, 2014, the letter was added to the docket. The letter
indicates that Smith intends to proceed with her case pro se.
Upon consideration, the Court will reopen the case, as to Smith only, to allow her
to proceed with her case pro se. Having found good cause, the Court will set aside the
judgment (Doc. #14) only as it relates to Smith. In addition, the Court will allow Smith thirty
days to properly serve HSBC Bank USA.
Since Smith is proceeding pro se, the Court will now take the opportunity to inform
her of some, but not all, procedural rules with which she must comply with in this legal
proceeding. The Court reminds Smith of these obligations because pro se litigants are
subject to the same law and rules as litigants who are represented by counsel, including
the Federal Rules of Civil Procedure (‟Rule(s)”), and the Local Rules of the United States
District Court for the Middle District of Florida (“Local Rule(s)”).2 Moon v. Newsome, 863
F.2d 835, 837 (11th Cir. 1989).
All pleadings and other papers tendered to the Court must be typewritten, doublespaced, in at least twelve-point type, on unglazed white 8 ½ x 11 paper, and with 1 ¼
inch margins. See M.D. Fla. Local Rule 1.05(a).

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All filings with the Court must be made in accordance with the Rules and Local Rules. The Local Rules are
available for review on the Court’s website at www.flmd.uscourts.gov and a copy may be obtained by visiting
the Clerk’s Office. The Rules are available for review in law libraries of the state and federal courthouses.

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Smith shall not correspond with the Court or any Judge in letter form. 3 In keeping
with their sworn duty to maintain complete impartiality in the exercise of their judicial
duties, Judges will only deliver decisions and opinions in response to documents filed
with the Clerk’s Office in accordance with the governing rules of procedure. Any
correspondence sent to judicial officers will not be responded to, will be stricken from the
case file, and will be returned to the sending party.
All documents filed with the Court must be in the form of a pleading or motion. See
Fed. R. Civ. P. 7(a)-(b). Each pleading, motion, notice, or other paper shall be presented
in a separate document. In addition, all documents filed with the Court must include a
caption (the same as set forth in the operative complaint); a brief title that describes the
nature of the document; the filing party’s name and signature; and a Certificate of Service.
These last two items are explained below.
All pleadings, motions, or other papers filed with the Court by Smith must bear an
original signature of Smith, or they will be rejected by the Court. Among other things, the
signature serves as the party’s certification that the document is not submitted for any
improper purpose; that the claims or defenses presented in it are warranted by existing
law; and that there exists reasonable factual support for the allegations or assertions
made. See Fed. R. Civ. P. 11(b). Smith is advised to review and become familiar with
Rule 11, as the failure to comply with its provisions can result in the imposition of
sanctions, including monetary fines. See generally Fed. R. Civ. P. 11.
All pleadings, motions, or other papers filed with the Court must include a signed
Certificate of Service. The Certificate of Service is confirmation that the filing party has

Smith’s letter (Doc. #15) was construed as a Notice to the Court. The Court, however, will not accept
correspondence in letter format going forward in the case.
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complied with the requirement of Rule 5 by serving on every other party to the action (or
its attorney) a copy of the particular pleading, motion, or other paper filed with the Court.
At a minimum, a Certificate of Service must state the date upon which a copy of the
particular document was served on the other parties to the action (or their attorneys) and
the means by which such service was made (e.g., U.S. Mail or hand delivery). Fed. R.
Civ. P. 5.
All requests for relief from, or action by, the Court must be in the form of a motion.
See Fed. R. Civ. P. 7(b). If Smith seeks any relief from, or action by, the Court, or seeks
the entry of an order of any kind, she must file a proper motion requesting that relief. The
motion must meet the requirements of all applicable rules, including the Rules and the
Local Rules. All motions must be accompanied by a legal memorandum with citation of
authorities in support of the relief requested. See M.D. Fla. Local Rule 3.01(a). Motions
and memoranda cannot exceed 25 pages without permission from the Court. See id.
Further, Smith is advised that prior to filing most motions, Local Rule 3.01(g)
requires that the filing party confer with opposing counsel in a good faith attempt to resolve
the issue. Smith must include a certification in the motion that she has complied with this
requirement and shall also notify the Court whether the parties agree on the relief
requested. Local Rule 3.01 sets forth several other important requirements and rules
governing motions filed with the Court. Failure to comply with these requirements or any
other rule may result in the denial of the motion.
Smith must abide by and comply with all orders of this Court. Failure to do so may
result in sanctions, including the striking of pleadings.

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Local Rule 3.01(b) requires briefs and legal memoranda in opposition to motions
to be filed within 14-days after being served with such motion. Smith must timely respond
to the motions filed by other parties in this case, otherwise, the Court may assume she
does not oppose that motion and the relief requested therein. If Smith has missed a filing
deadline, Smith must file a motion seeking leave of Court to file the document out of time.
Smith is advised that she must comply with many requirements and failure to do
so can have significant consequences. For example, failure to respond to discovery
requests as described in the rules may result in sanctions. See Fed. R. Civ. P. 37.
While the Court has set forth some of the more prominent procedural obligations
and requirements of litigants in this Court, this Order does not purport to set forth all
requirements and should not be relied upon as limiting Smith’s duties and obligations.
Smith is directed to the Court’s website at http://www.flmd.uscourts.gov. There is a
section titled Proceeding without a Lawyer with additional helpful information.
Accordingly, it is now
ORDERED:
1. The November 6, 2014 Judgment is hereby SET ASIDE only as it relates to
Charmayne Smith. (Doc. #14).
2. The Clerk is directed to (1) reopen the case; (2) in light of the Court’s previous
orders, terminate Marc H. Hoffman and Mark James Bernet from the docket so
that they no longer receive CM/ECF email notifications from the Court in this
matter; (3) in light of the Court’s previous orders, terminate the other non-Smith
plaintiffs from the case (see Doc. #13; Doc. #14); (4) change Smith’s name
from “Smith Charmayne” to “Charmayne Smith” on the docket; (5) add Smith’s

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mailing address to the docket (See Doc. #12); (6) immediately mail a copy of
this Order to Smith; and (7) in light of paragraph one, file an appropriate
Amended Judgment on the docket.
3. Plaintiff Charmayne Smith has up to and including December 22, 2014, to
properly serve Defendant HSBC Bank USA, N.A. with the operative complaint
and file her return of service notification on the docket. Failure to timely comply
with this deadline will result in the case being dismissed without prejudice for
failure to prosecute.
DONE and ORDERED in Fort Myers, Florida this 20th day of November, 2014.

Copies: All Parties of Record

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