BENTON et al v. BANK OF AMERICA CORPORATION et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 2/14/2017. (c/m 02/14/2017 jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARAY J. BENTON et al.,
Civil Action No. PX 16-613
BANK OF AMERICA CORPORATION et al.,
This case arises out of the alleged foreclosure of two properties owned by LaRay and
Georgia Benton (“Plaintiffs”) in Newport News, Virginia and Prince George’s County,
Maryland. See Complaint, ECF No. 1 at 6. On June 8, 2015, Plaintiffs, appearing pro se, filed a
complaint in the United States District Court for the District of Columbia against eleven
defendants: Bank of America Corporation; Bank of America, N.A.; PRLAP, Inc.; ARLP Trust 4;
Keith Yacko; Brock & Scott, PLLC; Christiana Trust; Wilmington Savings Fund Society, F.S.B.;
Ocwen Financial Corporation; Ocwen Loan Servicing LLC; and Seterus Inc. (the “Defendants”).
The complaint is eighty-one pages long, asserts thirty-five separate counts, and has 384 pages of
exhibits. Complaint, ECF No. 1. At base, Plaintiffs allege that the Defendants improperly
foreclosed upon their properties using deceit, misrepresentation, fraud, and other forms of
misconduct in violation state and federal laws. See, e.g., id. at 7–8, 17–18.
Several Defendants filed motions to dismiss while the case was pending in the District of
Columbia. See ECF Nos. 2, 4, 17, and 21. On February 9, 2016, the D.C. district court granted
these motions in part, holding that the case was filed in the wrong venue in violation of Fed. R.
Civ. P. 12(b)(3), and ordered the case to be transferred to this Court. See Memorandum Opinion
and Order, ECF Nos. 45 and 46. An exhaustive recount of the facts is unnecessary, but the
history of the case since it was transferred to this Court bears review.
On April 4, 2016, this Court granted Plaintiffs’ motion for leave to amend their original
complaint on or before May 4, 2016. See ECF No. 59. The Court reminded Plaintiffs that the
amended complaint must comply with D. Md. Local Rule 103.6, and noted that in light of the
Court granting leave to amend, any amended claims that fail to state a plausible claim for relief
will be dismissed with prejudice. Id. On April 28, 2016, Plaintiffs filed a Motion to File
Electronically and Motion for Extension of Time. ECF No. 60. The Court granted the motion in
part, extending Plaintiffs’ time to file to June 13, 2016. ECF No. 61.
Despite the Court’s instructions, Laray Benton waited until June 16, 2016 to file his
amended complaint. The amended complaint is 102 pages long and lacks numbered paragraphs.
See Amended Complaint, ECF No. 64. Moreover, Mr. Benton failed to attach a redlined copy of
the amended complaint in violation of Local Rule 103.6.1 Although categorized as an amended
complaint, Mr. Benton also states that it serves as a motion for summary judgment and a
response to the Defendants’ previous motions to dismiss the original complaint that had been
filed in D.C. District Court. See ECF No. 64 at 2–4.
The Court held a conference call with the parties on July 13, 2016 to address Bank of
America’s intention to file a motion to strike the amended complaint. For the reasons discussed
during that conference call, the Court ordered the Defendants by August 8, 2016 to file any
motions regarding Mr. Benton’s alleged failure to comply with the Federal Rules of Civil
Local Rule 103.6(c) states:
Unless otherwise ordered by the Court, the party filing an amended pleading shall file and serve
(1) a clean copy of the amended pleading and (2) a copy of the amended pleading in which the
stricken material has been lined through or enclosed in brackets and new material has been
underlined or set forth in bold-faced type.
D. Md. Local Rule 103.6(c).
Procedure and/or this Court’s Local Rules. See ECF No. 69. Mr. Benton was ordered to respond
to any motion filed by August 29, 2016, and Defendants’ replies were due by September 15,
On August 8, 2016, Defendants Bank of America, N.A., Bank of America Corporation,
and PRLAP, Inc. filed a motion to strike and/or motion to dismiss Plaintiffs’ Amended
Complaint in accord with the Court’s scheduling order at ECF No. 69. See ECF No. 72. On the
same day, Defendants Ocwen Loan Servicing, LLC, Ocwen Financial Corporation, Wilmington
Trust (as Trustee of ARLP Securitization Trust, Series 2014-2), Wilmington Savings Fund
Society, Christiana Trust, and ARLP Trust 4 filed a similar motion. ECF No. 73.
In their motions, the Defendants argue that the amended complaint should be stricken
because Mr. Benton failed to comply with Local Rule 103.6 after the Court explicitly instructed
him to do so. ECF No. 72-1 at 6–7; ECF No. 73-1 at 3–5. In the alternative, the Defendant’s
argue that the amended complaint is deficient under Rules 8(a), 12(b)(6), and 10 of the Federal
Rules of Civil Procedure. ECF No. 72-1 at 7–9; ECF No. 73-1 at 4–5. Rule 8(a) requires a “short
and plain statement of the claim showing that the pleading is entitled to relief,” while Rule 10
outlines the form the pleadings must take. Mr. Benton’s amended complaint is 102 pages long,
does not contain numbered paragraphs, does not clearly label the causes of action, and references
the eleven defendants as a collective group. Clearly, the amended complaint does not comply
with the rules.
Further, even if the amended complaint conformed to the rules, the Defendants argue the
case should be dismissed pursuant to the Younger doctrine2 because a related state court action is
still pending. Defendants alternatively argue that the amended complaint, as pleaded, is so
So named after Younger v. Harris, 401 U.S. 37 (1971), which explained that federal courts should refrain from
interfering with state judicial proceedings in most circumstances.
unclear that they can neither frame an adequate answer nor be confident that their response
would sufficiently address each allegation.
On September 14, 2016, approximately two weeks after the deadline for Mr. Benton’s
response, he sought an extension of time, claiming travel delays prevented timely filing. See ECF
No. 74. He also informed the Court that he had secured legal counsel to represent him going
forward. Id. The Court granted Mr. Benton’s motion, and he was ordered to file his response on
or before October 24, 2016. See ECF No. 75. The letter order also informed Mr. Benton that
“[n]o further continuances absent extraordinary circumstances will be granted.” Id.
It is now February 14, 2017 and Mr. Benton has failed respond to Defendants’ motions to
dismiss. See Md. Local Rule 105.2(a); Fed. R. Civ. P. 6. As a result, when a plaintiff fails to
oppose a motion to dismiss, a district court is “entitled, as authorized, to rule on the . . . motion
and dismiss [the] suit on the uncontroverted bases asserted” in the motion. Pueschel v. United
States, 369 F.3d 345, 354 (4th Cir. 2004); see also Ferdinand–Davenport v. Children’s Guild,
742 F. Supp. 2d 772, 777 (D. Md. 2010) (“By her failure to respond to [defendant’s] argument”
in a motion to dismiss, “the plaintiff abandons [her] claim.”); Mentch v. Eastern Sav. Bank, FSB,
949 F. Supp. 1236, 1247 (D. Md. 1997) (holding that failure to address defendant’s arguments
for summary judgment in opposition brief constituted abandonment of claim); White v. Wal Mart
Stores, Inc., No. ELH–13–00031, 2014 WL 1369609, at *2 (D. Md. Apr. 4, 2014) (dismissing
pro se plaintiff’s case after he failed to oppose defendant’s motion to dismiss). Moreover, a
district court has “the inherent authority . . . to dismiss a lawsuit sua sponte for failure to
prosecute.” United States v. Moussaoui, 483 F.3d 220, 236 (4th Cir. 2007); see Link v. Wabash
R.R. Co., 370 U.S. 626, 629 (1962).
To be sure, a plaintiff’s failure to oppose a motion to dismiss is no guarantee of victory
for the Defendants where the motion itself is meritless. United States v. Sasscer, No. Y–97–
3026, 2000 WL 1479154, at *2 n.6 (D. Md. Aug. 25, 2000). This is not the case here. Defendants
persuasively argue that the mortgage in question is in default and foreclosure proceedings are
ongoing in the Circuit Court for Prince George’s County. See 72-1 at 3–4. In light of Mr.
Benton’s failure to oppose the motions, the Court will assume that Mr. Benton concedes that his
amended complaint is deficient for the reasons stated by the Defendants.
Additionally, the Court notes that Mr. Benton has failed to comply with numerous
orders, local rules, and federal rules of civil procedure, despite the Court’s generous guidance.
See Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 10-3517, 2011 WL 3476994, at *24
(D. Md. Aug. 8, 2011) (explaining that even pro se litigants must comply with a court’s orders
and the local rules). Therefore, Mr. Benton’s amended complaint is dismissed. This dismissal
will be with prejudice based on the parties’ previous agreement, discussed supra.
The amended complaint is also dismissed to the extent that Mr. Benton intended it to
serve as a response to the Defendants’ previous motions to dismiss presented to the U.S. District
Court for the District of Columbia, at ECF Nos. 2, 4, 17, and 21. That court already granted
Defendants’ motions in part by transferring this case here, and Mr. Benton’s filing of an
amended complaint renders the previously pending motions moot.
Also, the pleading is dismissed to the extent Mr. Benton intended it to serve as a motion
for summary judgment. The Court’s case management order, at ECF No. 49, requires the party
who intends on filing a motion to first file a Notice of Intent to File Motion. Mr. Benton did not
Finally, two defendants, Keith M. Yacko and Brock & Scott, PLLC have not filed
motions to dismiss. A review of the docket reveals that these parties were never served. Rule
4(m) of the Federal Rules of Civil Procedure requires a plaintiff to serve a defendant “within 90
days after the complaint is filed.” If the defendants have not been served within this time frame,
“the court . . . must dismiss the action without prejudice against that defendant.” Fed. R. Civ. P.
4(m) (emphasis added). However, “if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.” Id. The Court will therefore order
Mr. Benton to show good cause with fourteen (14) days from the date of this Memorandum
Opinion and Order why the amended complaint should not be dismissed as to Keith M. Yacko
and Brock & Scott, PLLC, without prejudice, and pursuant Fed. R. Civ. P. 4(m) and Local Rule
103.8.a. A separate order will follow.
United States District Judge
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