Kelly v. LVNV Funding , LLC et al

Filing 18

ORDER granting 15 Plaintiff's Unopposed Motion to Stay Or, In the Alternative, Motion for Extension of Time to File Response to Defendant's Motion to Dismiss; granting 16 Plaintiff's Motion for Leave to File Reply to Defendant s' Response in Opposition to Motion for Remand; granting 17 Plaintiff's Motion for Leave to File Reply to Defendants' Response in Opposition to Rule 11 Motion. This matter is STAYED for the earlier of sixty (60) days, December 28, 2 015, or until the Court rules on the 9 Motion to Remand. Plaintiff shall have up to and including November 2, 2015, to file a reply of no more than five pages to Defendants' Response in Opposition to 12 Plaintiff's Motion to Remand and Incorporated Memorandum of Law and a separate reply of no more than five pages to 13 Defendants' Response in Opposition to Plaintiff's Rule 11 Motion for Sanctions. Signed by Magistrate Judge Carol Mirando on 10/26/2015.(LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MERRY KELLY,
Plaintiff,
v.

Case No: 2:15-cv-498-FtM-29CM

LVNV FUNDING , LLC and
RESURGENT CAPITAL
SERVICES L.P.,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Unopposed
Motion to Stay Or, In the Alternative, Motion for Extension of Time to File Response
to Defendant’s Motion to Dismiss (Doc. 15) filed on October 13, 2015, Plaintiff’s
Motion for Leave to File Reply to Defendants’ Response in Opposition to Motion for
Remand (Doc. 16) filed on October 13, 2015, and Plaintiff’s Motion for Leave to File
Reply to Defendants’ Response in Opposition to Rule 11 Motion (Doc. 17) filed on
October 13, 2015. Upon review of these motions and the court file, the court finds
that the motions are due to be granted.
This matter originally was filed in the County Court of the Twentieth Judicial
Circuit, Hendry County, Florida. On August 17, 2015, Defendants filed a notice of
removal to this Court. Doc. 1. On September 16, 2015, Plaintiff filed her Motion to
Remand and Incorporated Memorandum of Law and Rule 11 Motion for Sanctions.
Docs. 9, 10. On September 30, 2015, Defendants filed a Motion to Dismiss. Doc. 11.

Pursuant to Local Rule 3.01(b), Plaintiff’s response to Defendants’ Motion to Dismiss
was due on October 14, 2015.

Plaintiff requests a stay of these proceedings or,

alternatively, an extension of time to file a response to Defendant’s Motion to Dismiss
(Doc. 11) pending a ruling on Plaintiff’s Motion to Remand (Doc. 9).
“The power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
254 (1936).

This is best accomplished by the “exercise of judgment, which

must weigh competing interests and maintain an even balance.”

Id. at 255.

Plaintiff states that a stay is appropriate because “it would conserve the resources of
all parties, including the Court.” Doc. 15 at 2. For instance, should this Court grant
Plaintiff’s Motion to Remand, Defendant’s Motion to Dismiss will be rendered moot,
and therefore no response will be required. Defendant does not oppose the Motion
to Stay. Doc. 15 at 2.
The Court also agrees and finds good cause to stay these proceedings until the
earlier of sixty (60) days from the date of this Order or until the Court rules on
Plaintiff’s Motion to Remand (Doc. 9). If the Court has not ruled on the Motion to
Remand (Doc. 9) within sixty (60) days, Plaintiff shall have fourteen (14) days from
said date to file a response to Defendants’ Motion to Dismiss (Doc. 11) or,
alternatively, Plaintiff may request a further stay of this case. If the Court denies
the Motion to Remand, Plaintiff shall have fourteen (14) days from such date of such
order to file a response to Defendants’ Motion to Dismiss (Doc. 11).

-2-

Plaintiff also seeks leave to file replies to Defendants’ Response in Opposition
to Plaintiff’s Motion to Remand and Incorporated Memorandum of Law (Doc. 12) and
Defendants’ Response in Opposition to Plaintiff’s Rule 11 Motion for Sanctions (Doc.
13). Docs. 16, 17. According to Plaintiff’s 3.01(g) certification, Defendants oppose
both motions. Doc. 16 at 2, Doc 17 at 2. No response in opposition has been filed,
and the time has expired to do so. Failure to file a response creates a presumption
that the motion is unopposed. Great American Assur. Co. v. Sanchuk, LLC, 2012
WL 195526 *3 (M.D. Fla. 2012) (citation omitted). For the reasons set forth below,
Plaintiff’s motions are granted.
Pursuant to Middle District of Florida Local Rule 3.01(c), “[n]o party shall file
any reply or further memorandum directed to the motion or response . . . unless the
Court grants leave.” Plaintiff seeks leave to file a reply to Defendants’ responses to
address a number of cases in which Defendants rely. “The purpose of a reply brief
is to rebut any new law or facts contained in the opposition’s response to a request
for relief before the Court.” Tardif v. People for Ethical Treatment of Animals, No.
2:09-cv-537-FtM-29SPC, 2011 WL 2729145, at *2 (M.D. Fla. July 13, 2011). “While
parties may ask for leave to file a reply, they must show good cause.” McDonald v.

United States, No. 3:13-cv-168-J-37MCR, 2013 WL 3901871, at *1 n.3 (M.D. Fla. July
29, 2013).
Upon due consideration, the Court finds that brief replies would benefit the
Court’s review of the pending Motion to Remand and Rule 11 Motion for Sanctions;
and Plaintiff has shown good cause for their filing. On or before November 2, 2015,

-3-

Plaintiff may file a reply of no more than five pages to Defendants’ Response in
Opposition to Plaintiff’s Motion to Remand and Incorporated Memorandum of Law
(Doc. 12), and a separate reply of no more than five pages to Defendants’ Response in
Opposition to Plaintiff’s Rule 11 Motion for Sanctions (Doc. 13).
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Unopposed Motion to Stay Or, In the Alternative, Motion for

Extension of Time to File Response to Defendant’s Motion to Dismiss (Doc. 15) is
GRANTED.
2.

This matter is STAYED for the earlier of sixty (60) days, December 28,

2015, or until the Court rules on the Motion to Remand (Doc. 9).
A.

If the Court has not ruled on the Motion to Remand (Doc. 9) by

December 28, 2015, Plaintiff shall have up to and including January 12, 2016 to file
a response to Defendants’ Motion to Dismiss (Doc. 11) or, alternatively, Plaintiff may
request a further stay of this case.
B.

If the Court denies the Motion to Remand (Doc. 9), Plaintiff shall

have fourteen (14) days from the date of such order to file a response to Defendants’
Motion to Dismiss (Doc. 11).
3.

Plaintiff’s Motion for Leave to File Reply to Defendants’ Response in

Opposition to Motion for Remand (Doc. 16) is GRANTED. On or before November 2,
2015, Plaintiff may file a reply of no more than five pages.

-4-

4.

Plaintiff’s Motion for Leave to File Reply to Defendants’ Response in

Opposition to Rule 11 Motion (Doc. 17) is GRANTED.

On or before November 2,

2015, Plaintiff may file a reply of no more than five pages.
DONE and ORDERED in Fort Myers, Florida on this 26th day of October,
2015.

Copies:
Counsel of record

-5-