Battle v. Deutsche Bank National Trust Company et al

Filing 59

ORDER denying as moot 53 Plaintiff's Amended Motion for Leave to Add Additional Counts to Amended Complaint; denying as moot 54 Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint with Prejudice with Memorandum of Law and Motion to Strike with Prejudice; denying as moot 56 Plaintiff's Motion for Extension of Time to Respond to Defendants' Motion to Dismiss Plaintiffs' Amended Complaint; denying without prejudice 57 Plaintiff's Second Amended Motion for Leave to Add Additional Counts to Second Amended Complaint; striking 50 Plaintiff's Second Amended Complaint; striking 58 Plaintiffs' Reply to Defendant's Response in Opposition to Plaintiffs' Amended Motion for Leave to Add Additional Counts to Amended Complaint. See Order for details. Signed by Magistrate Judge Carol Mirando on 4/29/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BERNICE BATTLE and WILLIE
BATTLE,
Plaintiffs,
v.

Case No: 2:15-cv-563-FtM-38CM

AMERICAN HOME MORTGAGE
SERVICING INC.,
Defendant.
ORDER
Before the Court is Plaintiff's Amended Motion for Leave to Add Additional
Counts to Amended Complaint (“Amended Motion,” Doc. 53) and Plaintiff’s Second
Amended Motion for Leave to Add Additional Counts to Second Amended Complaint
(“Second Amended Motion,” Doc. 57).

For the reasons set for below, Plaintiff’s

Amended Motion is denied as moot and Plaintiff’s Second Amended Motion is denied
without prejudice.
When Plaintiffs initially filed this matter, they did so pro se, without the
assistance of counsel. Plaintiffs filed an Amended Complaint against Defendant on
November 18, 2015 alleging negligence and fraud. Doc. 30. Defendant moved to
dismiss the Amended Complaint. Doc. 40. The Honorable Sheri Polster Chappell
dismissed both counts of the amended complaint without prejudice and allowed
Plaintiffs leave to amend the complaint. Doc. 44 at 7.

Plaintiffs subsequently retained counsel who filed a Notice of Appearance in
this action. Doc. 42. Plaintiffs’ counsel filed a Motion for Leave to Add Additional
Counts to the Amended Complaint (“Motion for Leave”). Doc. 51. Plaintiffs sought
to add counts for breach of fiduciary duty, common law aiding and abetting fraud,
unjust enrichment, and violations of the Florida Deceptive and Unfair Trade
Practices Act.

Id. at 2. The undersigned denied the Motion for Leave without

prejudice for failure to comply with local rules 3.01(g) and 4.01 because Plaintiff failed
to confer with opposing counsel and certify whether opposing counsel objects to the
requested relief, and Plaintiffs’ counsel failed to attach a copy of the proposed
amendment. Doc. 52.
Plaintiffs’ counsel filed Second Amended Complaint as a separate docket entry
prior to the Court granting leave to add the additional counts. Doc. 50. Plaintiffs
then filed the present Amended Motion seeking leave to add additional counts. Doc.
53. While this motion complied with local rule 3.01(g), it failed to attach a copy of
the Second Amended Complaint as required by local rule 4.01. Defendant responded
to both the Second Amended Complaint and the Amended Motion by moving to
dismiss the Second Amended Complaint and responding in opposition to the
Amended Motion. See Docs. 54, 55. Because the Second Amended Complaint was
improperly filed without leave of Court, it is hereby stricken. Therefore, Defendants’
Motion to Dismiss (Doc. 54) and Plaintiffs’ Motion for Extension of Time to Respond
to the Motion to Dismiss (Doc. 55) now are moot.

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The Amended Motion also is moot because Plaintiffs’ have filed the Second
Amended Motion. Doc. 57. While this motion complies with local rule 4.01, and
Plaintiffs have attached a copy of the Second Amended Complaint, the motion still is
defective because Plaintiffs have not included the 3.01(g) certification. Local Rule
3.01(g) requires that each motion filed in a civil case, with certain enumerated
exceptions not at issue here, contain a statement “stating whether counsel agree on
the resolution of the motion.” Here, Plaintiffs fail to include a certification in their
motion that they have conferred with opposing counsel and whether opposing counsel
agrees to the requested relief. Accordingly, the Court will deny without prejudice
Plaintiffs’ Second Amended Motion for failure to comply with the local rules.
Additionally, Plaintiffs filed a Reply to Defendant’s Response in Opposition to
Plaintiffs’ Amended Motion for Leave to Add Additional Counts to Amended
Complaint. Doc. 58. This reply is improper for a couple of reasons. First, while
Defendant responded in opposition to the Amended Motion, Defendant has not had
the opportunity to respond to the Second Amended Motion. This Second Amended
Motion now supersedes the Amended Motion and any responses to that motion.
Second, Plaintiffs’ reply fails to comply with the local rules.

Local Rule 3.01(c)

states, “[n]o party shall file any reply or further memorandum directed to the motion
or response allowed in (a) and (b) unless the Court grants leave.” M.D. Fla. 3.01(c).
Moreover, a motion requesting leave to file a reply shall not exceed three pages, shall
specify the length of the proposed filing, and shall not include as an attachment or

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otherwise, the proposed response, reply or other paper.

M.D. Fla. 3.01(d).

Accordingly, Plaintiffs’ reply is stricken for failure to comply with the local rules.
It is apparent to the Court that Plaintiffs’ counsel is not familiar with the local
rules of this Court based on the numerous filings that are not in compliance. Thus,
the Court directs Plaintiffs’ counsel to review the Federal Rules of Civil Procedure
and the local rules of this Court before making any additional filings.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff's Amended Motion for Leave to Add Additional Counts to

Amended Complaint (Doc. 53) is DENIED as moot.
2.

Plaintiff’s Second Amended Motion for Leave to Add Additional Counts

to Second Amended Complaint (Doc. 57) is DENIED without prejudice to be refiled
in accordance with the local rules.
3.

Plaintiff’s Second Amended Complaint (Doc. 50) is STRICKEN.

4.

Defendant’s Motion to Dismiss Plaintiffs’ Second Amended Complaint

with Prejudice with Memorandum of Law and Motion to Strike with Prejudice (Doc.
54) is DENIED as moot.
5.

Plaintiff’s Motion for Extension of Time to Respond to Defendants’

Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 56) is DENIED as moot.
6.

Plaintiffs’ Reply to Defendant’s Response in Opposition to Plaintiffs’

Amended Motion for Leave to Add Additional Counts to Amended Complaint (Doc.
58) is STRICKEN.

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DONE and ORDERED in Fort Myers, Florida on this 29th day of April, 2016.

Copies:
Counsel of record

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