Gnipp v. Bank of America N.A.
Filing
23
OPINION AND ORDER denying 21 Plaintiff's Motion for Summary Judgment and directing Plaintiff to file a response to 19 Defendant's Motion to Dismiss within 21 days. See Opinion and Order for details. Signed by Judge John E. Steele on 12/3/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS A. GNIPP,
Plaintiff,
v.
Case No: 2:15-cv-99-FtM-29CM
BANK OF AMERICA N.A.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant's Motion to
Dismiss (Doc. #19) filed on November 5, 2015.
Objection (Doc. #20) on November 19, 2015.
Plaintiff filed an
Also before the Court
is Plaintiff’s Motion for Summary Judgment (Doc. #21) filed on
November 19, 2015.
Plaintiff Thomas A. Gnipp (Gnipp), who is proceeding pro se,
has filed a Complaint (Doc. #1) against Defendant Bank of America
N.A. (Bank of America) alleging violations of the Real Estate
Settlement Procedures Act (RESPA) and the Fair Debt Collection
Practices Act (FDCPA).
In its Motion to Dismiss, Bank of America
argues that the Complaint must be dismissed because Gnipp has
failed to adequately plead his RESPA and FDCPA causes of action.
(Doc. #19.)
Gnipp responds that the Motion to Dismiss must be
denied because Bank of America defaulted by failing to file an
answer
to
the
Complaint
within
21
days
as
required
by
Rule
12(a)(1)(A)(i) of the Federal Rules of Civil Procedure.
#20.)
(Doc.
Gnipp’s Motion for Summary Judgment is also premised on
Bank of America’s alleged default.
(Doc. #21.)
“Generally, a party must serve an answer to a complaint within
21 days of being served with the summons and complaint.”
Dyer v.
Wal-Mart Stores, Inc., 535 F. App'x 839, 843 (11th Cir. 2013).
However, “[a]fter . . . a motion to dismiss for failure to state
a claim is made, there is no reason to file any other pleadings
until the motion is acted upon.”
Id. (quoting Lawhorn v. Atl.
Ref. Co., 299 F.2d 353, 357 (5th Cir. 1962)).
As a result, a
defendant who files a motion to dismiss within 21 days of service
need not file an answer until after a ruling on the motion.
Id.
Here, Bank of America timely filed its Motion to Dismiss, which
remains pending.
Therefore, Bank of America is not yet required
to file and answer and, consequently, it is not in default.
Accordingly, Gnipp’s Motion for Summary Judgment is denied.
Gnipp
is granted an additional 21 days to file a substantive response to
Bank of America’s Motion to Dismiss.
If no response is filed, the
Court will rule on the motion without further notice and without
the benefit of a response.
Accordingly, it is hereby
ORDERED:
1.
Plaintiff’s Motion for Summary Judgment (Doc. #21) is
DENIED.
- 2 -
2.
Plaintiff shall file a response to Defendant’s Motion to
Dismiss (Doc. #19) within twenty-one (21) days of this Opinion and
Order.
If no response is filed, the Court will rule on the motion
without further notice and without the benefit of a response.
DONE and ORDERED at Fort Myers, Florida, this
December, 2015.
Copies:
Counsel of Record
- 3 -
3rd
day of
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