Washington et al v. People's Choice Home Loan Incorporated et al
Filing
31
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 5/6/2011. (ns, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
*
*
Plaintiffs,
*
*
v.
* Case No.: RWT 09cv1475
*
PEOPLE’S CHOICE HOME LOAN, INC., *
ET AL.,
*
*
Defendants.
*
*
MEMORANDUM OPINION
GEORGE WASHINGTON JR., ET AL.,
Presently pending and ready for resolution in this consumer credit case is Defendant JP
Morgan Chase Bank’s (“JPMC”) Motion to Strike Amended Complaint or, in the alternative,
Motion to Dismiss [ECF No. 24], Plaintiffs George and Doris Washington’s Motion for
Extension of Time to File the Amended Complaint [ECF No. 26], and the Plaintiffs’ Motion to
Amend/Correct Response in Opposition to JPMC’s Motion to Strike [ECF No. 27]. The issues
are fully briefed and the Court finds that no hearing is necessary. For the reasons that follow,
JPMC’s motion, construed as a motion to strike, will be granted, the Plaintiffs’ motion for
extension will be denied, and the Plaintiffs’ motion to amend/correct will be denied as moot.
I.
The Washingtons commenced this action on June 5, 2009, by filing a complaint against
Defendants People’s Choice Home Loan, Inc. (“People’s Choice”), Washington Mutual Home
Loans, Inc. (“WAMU”), and JPMC for alleged violations of the Maryland Consumer Protection
Act, Md. Commercial Law Code § 13-301 (“MCPA”) and a claim for fraud. See ECF. No. 1.
On February 8, 2011, the Court dismissed this case without prejudice as to People’s Choice and
WAMU pursuant to Federal Rule of Civil Procedure 4(m) and Local Rule 103.8.a for failure to
effect service within 120 days of filing the complaint. See ECF No. 22.
In the same memorandum opinion and order, the Court granted JPMC’s Motion to
Dismiss [ECF No. 9] after the Plaintiffs failed to file a motion for leave to file their over twomonth late opposition to JPMC’s motion to dismiss within the deadline ordered by the Court.
See ECF No. 22. The Court also concluded that the complaint did not state a claim against
JPMC under the MCPA, nor did it state an actionable claim for fraud. See id. The dismissal of
JPMC was made without prejudice and with leave to file an amended complaint against JPMC
within fifteen (15) days of the date of the memorandum opinion and order. See id. Plaintiffs
were warned that if they “fail to file an amended complaint within this time period, the claims
against JPMC shall be dismissed with prejudice.” Id. On February 24, 2011, sixteen (16) days
after the date of the memorandum opinion and order, the Plaintiffs filed an Amended Complaint
wherein they dropped their MCPA claim, added a claim under the Fair Debt Collection Practices
Act, and retained a slightly modified version of their fraud claim. See ECF No. 23.
On March 16, 2011, JPMC filed a motion to strike the amended complaint or, in the
alternative, motion to dismiss. See ECF No. 24. JPMC argues that the Amended Complaint
should be stricken because it was filed out of time without a showing of good cause or excusable
neglect and without Plaintiff moving for or receiving leave of Court, in contravention of Federal
Rule of Civil Procedure 6(b) and the Court’s Local Rules. Id. In the alternative, JPMC moves
to dismiss Plaintiff’s Amended Complaint for failure to satisfy the notice requirements of
Federal Rule of Civil Procedure 8(a), for improper venue pursuant to Federal Rule of Civil
Procedure 12(b)(3), for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), and for failure to plead fraud with sufficient particularity pursuant to Federal Rule of
2
Civil Procedure 9(b). Id. JPMC also seeks sanctions and an award of its fees and costs in
preparing its response to the Amended Complaint pursuant to Federal Rule of Civil Procedure
11, 28 U.S.C. § 1927, and 15 U.S.C. § 1692k(a)(3). Id.
The Washingtons filed a response in opposition to JPMC’s motion on April 4, 2011, see
ECF No. 25, and moved to amend/correct the opposition to include exhibits on April 6, 2011, see
ECF No. 27. On April 5, 2011, the Washingtons filed a Motion for Extension of Time to File the
Amended Complaint, see ECF No. 26, which JPMC opposed, see ECF No. 29.
II.
Requests for an extension after a deadline has passed are governed by Fed R. Civ. P.
6(b)(1)(B), which provides that a court may, for good cause, “extend the time on motion made
after the time has expired if the party failed to act because of excusable neglect.” The Fourth
Circuit has noted that “ ‘[e]xusable neglect’ is not easily demonstrated, nor was it intended to
be.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 534 (4th Cir. 1996).
In determining whether neglect is excusable, “the determination is at bottom an equitable
one, taking account of all relevant circumstances surrounding the party’s omission,” including
“the danger of prejudice to the [nonmoving party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good faith.” Pioneer
Investment Services Co. v. Brunswick Associates, 507 U.S. 380, 395 (1993). The most important
of the factors identified in Pioneer for determining whether neglect is excusable is the untimely
party’s reason for delay. Thompson, 76 F.3d at 534; see also United States v. Munoz, 605 F.3d
359, 372 (6th Cir. 2010) (“[T]he Pioneer factors do not carry equal weight; the excuse given for
the late filing must have the greatest import.”)
3
Here, the only excuse given for the delay is that counsel for Plaintiffs “is a solo
practitioner with limited resources and a full schedule.” See ECF No. 26, p. 2. Even if the other
Pioneer factors counsel in favor of Plaintiffs, “to the extent that [the] untimely filing is the result
of a heavy caseload . . ., Plaintiffs’ neglect is not excusable.” Jones v. Giant of Maryland, LLC,
08cv0304, 2010 WL 3677017, *at 7 (D.Md. Sept 17, 2010) (internal citations omitted).
Moreover, although the delay in filing the Amended Complaint and the resulting danger of
prejudice to JPMC appears minimal in isolation, the untimely filing of the Amended Complaint
is only the latest example of “inexcusable run-of-the-mill inattentiveness by counsel.” See
Thompson, 76 F.3d at 534. Despite repeated admonishment from the Court, Plaintiffs have
continued to miss deadlines in this matter such that this case has now been pending for almost
two years without the issuance of a scheduling order. See ECF Nos. 6, 13, and 22. The Court
will accordingly deny Plaintiffs’ motion for an extension of time to file an amended complaint
and grant JPMC’s Motion to Strike Amended Complaint or, in the alternative, Motion to
Dismiss, construed as a motion to strike.
Within the motion to strike, JPMC also requests sanctions and an award of its costs and
fees in preparing its response to the Amended Complaint pursuant to Fed. R. Civ. P. 11, 28
U.S.C. § 1927, and 15 U.S.C. § 1692k(a)(3). See ECF No. 24, at 9-10. JPMC argues that
sanctions are appropriate in this case based on Plaintiffs’ multiple missed deadlines, meritless
claims, and unsigned and error laden Amended Complaint. Id. The behavior complained of
appears to be more reflective of sloppy record-keeping practices and negligence on the part of
counsel for the Plaintiffs than a significant failure to comport with procedural norms sufficient to
warrant the imposition of sanctions. Although sympathetic to JPMC’s justified exasperation, a
4
motion for sanctions is not properly embedded in a separate motion, see Fed. R. Civ. P. 11(c)(2),
and the Court declines to grant an award of sanctions in this case.
III.
The Court shall therefore deny the Washington’s Motion for Extension of Time to File
the Amended Complaint [ECF No. 26], grant JPMC’s Motion to Strike Amended Complaint or,
in the alternative, Motion to Dismiss, construed as a motion to strike [ECF No. 24], and deny as
moot Washington’s’ Motion to Amend/Correct Response in Opposition to JPMC’s Motion to
Strike [ECF No. 27]. A separate order follows.
Date: May 6, 2011
/s/
Roger W. Titus
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?