Christopher v. Ownit Mortgage Solutions, Inc. et al

Filing 30

ORDER granting 25 Defendants' Motion to Strike Count I of Plaintiff's First Amended Complaint and directing Defendants to submit to Plaintiff a Bill of Costs by 1/23/2013. (see order for details). Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH J. CHRISTOPHER,
Plaintiff,
v.

Case No. 12-11872

OWNIT MORTGAGE SOLUTIONS,
INC., et al.,
Defendants.
/
ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE AND DIRECTING
PLAINTIFF TO COMPENSATE DEFENDANTS
Defendants Mortgage Electronic Registration Systems, Inc. and U.S. Bank, N.A.
have filed a motion seeking to strike count I (¶¶ 31-34) and ¶ 11 of Plaintiff’s first
amended complaint pursuant to Federal Rule of Civil Procedure 12(f)(2). On March 13,
2012, Plaintiff filed a complaint to quiet title with Macomb County Circuit Court, and
Defendants timely removed. Plaintiff then filed a purported amended complaint on
August 17, 2012, without seeking leave or consent. On August 23, 2012, the court
struck the amended complaint for Plaintiff’s failure to adhere to Federal Rule of Civil
Procedure 15(a). On August 24, 2012, Plaintiff moved to amend the complaint, and on
October 31, 2012, the court granted the motion in part. The court denied the motion to
amend with respect to “any allegations regarding whether Defendants violated Mich.
Comp. Laws § 600.3205.” (Order at 8, Dkt. # 23.)

In spite of the court’s order allowing limited amendment, Plaintiff filed an
amended complaint with allegations pertaining to the alleged violation of Mich. Comp.
Laws § 600.3205. (Am. Compl. ¶¶ 11, 31-34, Dkt. #24.)
Plaintiff has not responded to Defendants’ motion to strike and, when court staff
inquired about the late response, Plaintiff informed the staff that there would be no
opposition to the motion. Defendants also aver that they contacted Plaintiff in an
attempt to allow Plaintiff to voluntarily withdraw these allegations but that Plaintiff failed
to respond. The court concludes that consent was unreasonably withheld. Plaintiff
must therefore reimburse Defendants’ costs for the expense unnecessarily incurred in
presenting their motion. See E.D. Mich. LR 7.1(a)(3) (“The court may tax costs for
unreasonable withholding of consent.”). Accordingly,
IT IS ORDERED that Defendants’ motion to strike pursuant to Rule 12(f)(2) [Dkt.
# 25] is GRANTED. Count I (¶¶ 31-34) and ¶ 11 of Plaintiff’s first amended complaint
[Dkt. # 24] are STRICKEN.
IT IS FURTHER ORDERED that Defendants by January 23, 2013, shall submit
to Plaintiff’s counsel a Bill of Costs detailing the reasonable fees and expenses incurred
in preparing and presenting the instant motion, and Plaintiff, NOT LATER THAN
February 6, 2013, SHALL PAY such reasonable fees and expenses in full, or by the
same deadline file an objection on the docket with a detailed explanation in opposition
to the reasonableness of such fees and expenses. In such event, Defendants shall

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forthwith reply, and the court shall decide the accounting on the papers presented.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 15, 2013
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 15, 2013, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C1 ORDERS\12-11872.CHRISTOPHER.Grant.Mot.Strike.wpd

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