Moreland v. The Bank of New York Mellon et al

Filing 25

ORDER directing the Plaintiff to file any objections to Defendant The Bank of New York Mellon's 23 MOTION to Dismiss, or to otherwise inform the court of his decision not to object within twenty-one (21) days of the date of this Order. The Clerk is instructed to attach a copy of Rule 41 Fed.R.Civ.P., as well as Rule 12, Fed.R.Civ.P., to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge James E. Graham on 10/15/2014. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
DAVID L. MORELAND,
CIVIL ACTION NO.: CV214-112
Plaintiff,
vffi

THE BANK OF NEW YORK MELLON,
f/k/a The Bank of New York successor

to JP Morgan Chase Bank, NA successor
to Chase Manhattan Bank, successor
to Chemical Bank, as Trustee for 1MG
Home Loan Equity Trustee 1998-1
by Select Portfolio Servicing, Inc., its
Attorney-in-fact, Richard B. Maner, P.C.,
Attorney at Law,
Defendants.
ORDER
Plaintiff, proceeding prose, filed this complaint on July 29, 2014. Defendant The Bank
of New York Mellon, f/k/a The Bank of NY, successor to JP Morgan Chase Bank, N.A.
successor to Chase Manhattan Bank, successor to Chemical Bank, as Trustee for IMC
Home Loan Equity Trustee 1998-1 and Select Portfolio Servicing, Inc. has filed a Renewed
Motion to Dismiss Plaintiffs Original Complaint and Motion to Dismiss Plaintiffs Amended
Complaint.
The Court is reluctant to rule on said motion without receiving a response from the
Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by his failure
to respond. Once such a motion is filed, the opponent should be afforded a reasonable
opportunity to respond to or oppose such a motion. This Court must consider that the
Plaintiff in this case is a pro se litigant. Haines v. Kerner, 404 U. S. 519, 520 (1972). When
a defendant or defendants file a motion to dismiss, the court must construe the complaint

liberally in favor of plaintiff, taking all facts alleged by the plaintiff as true, even if doubtful in
fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).
AO 72A

(Rev. 8/82)

The granting of a motion to dismiss without affording the plaintiff either notice or any
opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336-37
(11th Cii. 2011), A local rule, such as Local Rule 7.5 of this court,' should not in anyway
serve as a basis for dismissing a pro se complaint where, as here, there is nothing to
indicate plaintiff ever was made aware of it prior to dismissal. Pierce v. City of Miami, 176
F. App'x 12, 14(11th Cii. 2006).
Accordingly, Plaintiff is hereby ORDERED to file any objections to said Defendant's
motions for a dismissal, or to otherwise inform the court of his decision not to object to
Defendant's motions within twenty-one (21) days of the date of this Order. Tazoe, 631 F.3d
at 1336 (advising that a court can not dismiss an action without employing a fair procedure).
Should Plaintiff not timely respond to said Defendant's motions, the Court will determine that
there is no opposition to the motion. See Local Rule 7.5. In order to assure that Plaintiffs
response is made with fair notice of the requirements of the Federal Rules of Civil Procedure
regarding motions to dismiss, generally, and motions to dismiss for failure to state a claim
upon which relief may be granted, the Clerk of Court is hereby instructed to attach a copy
of Rule 41, FED. R. Civ. P., as well as Rule 12, FED. R. Civ. P., to the copy of this Order that
is served on the Plaintiff.
SO ORDERED, this

_e

day of October, 2014.

.- - -

[
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\MES E. GRAI1AM
NITED STATES MAGISTRATE JUDGE

Local Rule 7.5 states:
Unless.. . the assigned judge prescribes otherwise, each party opposing
a motion shall serve and file a response within fourteen (14) days of
service of the motion, except that in cases of motions for summary
judgment the time shall be twenty-one (21) days after service of the
motion. Failure to respond shall indicate that there is no opposition to a
motion. (emphasis added).
AO 72A
(Rev. 8/82)