Ruiz v. Bank of America, N.A.

Filing 41

ORDER denying without prejudice 27 --motion to extend time; denying without prejudice 29 --motion for extension of time to complete discovery; denying as moot 35 --motion for extension of time to respond; denying 38 --motion to defer the motion for summary judgment and to amend the complaint. No later than August 2, 2018, Ruiz must respond to Bank of America's motion for summary judgment. Signed by Judge Steven D. Merryday on 7/27/2018. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOHN RUIZ,
Plaintiff,
v.

CASE NO. 8:17-cv-2586-T-23TGW

BANK OF AMERICA, N.A.,
Defendant.
____________________________________/
ORDER
John Ruiz sues (Doc. 1) Bank of America for common law fraud and alleges
that Bank of America misrepresented the eligibility requirement for a mortgage
modification.1 Relying on the misrepresentation, Ruiz allegedly stopped paying his
mortgage and “fell into default status” (Doc. 1 at ¶ 39), which resulted in the bank’s
winning a foreclosure judgment in state court. A month after the close of discovery
in this action, Bank of America moved (Doc. 30) for summary judgment and argued,
among other things, that the default resulted not from the bank’s alleged
misrepresentation but from Ruiz’s loss of employment, that Rooker-Feldman bars the
fraud claim, and that the fraud claim constitutes a compulsory counterclaim that
Ruiz must have asserted but failed to assert in the state-court foreclosure action.
After receiving two extensions of the time within which to respond to Bank of
America’s motion for summary judgment, Ruiz moves (Doc. 38) under Rule 56(d),

1

A February 1, 2018 order (Doc. 13) dismisses fraud claims based on three other
misrepresentations.

Federal Rules of Civil Procedure, to defer resolution of Bank of America’s motion
for summary judgment. Attempting to justify the requested deferral, Ruiz cites a
motion to compel in a different action and states that he “joined” the motion to
compel. (Doc. 38 at 3) But no Federal Rule of Civil Procedure or Local Rule
permits “joining” the motion of another party in a different action (or even in the
same action). In any event, the clerk terminated the motion to compel in the other
action after an order dismissed that action for lack of subject-matter jurisdiction and
for failure to state a claim.2 Also, Ruiz argues (Doc. 38 at 3) that Bank of America
attached to the summary judgment motion several documents not produced in
discovery. Bank of America responds (Doc. 40) persuasively that each document is a
public record (for example, the mortgage recorded in Hillsborough County and the
foreclosure judgment) or a document produced by Ruiz. Because Ruiz provides no
cogent reason for deferring the resolution of Bank of America’s motion for summary
judgment, the request (Doc. 38 at 1–3) to defer the summary judgment motion is
DENIED.
Also, more than five months after a February 6, 2018 order (Doc. 16)
cautioned Ruiz that a motion for leave to amend the complaint “is distinctly
disfavored after the issuance of this order,” Ruiz moves (Doc. 38 at 3) for leave to
amend the complaint. Ruiz states that the amendment will “add facts recently
discovered from [Bank of America’s] production of documents,” but Ruiz offers no

2

Doc. 55 in Acosta v. Bank of America, N.A., 8:17-cv-2592 (M.D. Fla. July 24, 2018).

-2-

explanation what facts he intends to add, and the exhibit cited by Ruiz similarly fails
to explain the contemplated amendment. The request (Doc. 38 at 3) for leave to
amend the complaint is DENIED. See Long v. Satz, 181 F.3d 1275, 1279–80
(11th Cir. 1999) (affirming the denial of leave to amend the complaint because the
plaintiff failed to explain the purpose of an amendment). No later than
AUGUST 2, 2018, Ruiz must respond to Bank of America’s June 18, 2018 motion
for summary judgment. No further extension is available absent an extraordinary
circumstance. Ruiz’s motion (Doc. 35) to extend until July 20, 2018 the time within
which to respond to the motion for summary judgment is DENIED AS MOOT.
The motions (Docs. 27 and 29) to extend discovery and to extend the time to move
for summary judgment are DENIED WITHOUT PREJUDICE to renewal after the
disposition of Bank of America’s pending motion for summary judgment (if an order
denies summary judgment).
ORDERED in Tampa, Florida, on July 27, 2018.

-3-