Moore et al v. Mortgage Electronic Registration Systems, Inc. et al

Filing 149

///ORDER dismissing without prejudice 96 Counterclaim. Deutsche Bank's counterclaim is dismissed without prejudice for failure to prosecute but may be reinstated within 14 days upon a showing of good cause. The clerk shall enter an amended judgment in accord with this order. The case will remain closed. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Angela Jo Moore and M. Porter
Moore
v.

Civil No. 10-cv-241-JL

Mortgage Electronic Registration
Systems, Inc., et al.
O R D E R
Plaintiffs Angela Jo Moore and M. Porter Moore filed this
action in Carroll County Superior Court on May 20, 2010, and the
defendants removed it to this court shortly thereafter.

The

Moores subsequently amended their complaint several times, and
filed the ultimate version of the complaint–-the Third Amended
Complaint–-on April 12, 2011.

After the court pared down the

Moores’ claims in response to the defendants’ motions to dismiss,
the defendants filed answers to that complaint in February 2012.
In addition to filing an answer to the Moores’ Third Amended
Complaint, defendant Deutsche Bank National Trust Company filed a
counterclaim against the Moores for breach of contract and unjust
enrichment.

See document no. 96.

The Moores filed a motion to

dismiss the counterclaim, see document no. 101, which the court
denied on March 15, 2012.

After that, the counterclaim made no

further appearance in the case.

The Moores did not file an

answer to the counterclaim, but Deutsche Bank did not request the

entry of default or a default judgment.

The parties’ joint

proposed discovery plan made no mention of the counterclaim, see
document no. 112, nor did any later document filed by any party.
That includes Deutsche Bank’s own motion for summary judgment,
which addressed only the Moores’ claims, see document no. 123,
and its reply memorandum in support thereof, see document no.
135.

No party made mention of the counterclaim at oral argument

on the defendants’ various motions for summary judgment.
Following the parties’ lead, the court itself overlooked the
counterclaim, and, after granting the defendants’ motions for
summary judgment, directed the clerk to “enter judgment
accordingly and close the case,” see Moore v. Mortg. Elec.
Registration Sys., 2013 DNH 065, at 25, which he did.

That was

procedurally improper, as the counterclaim still remained pending
(at least nominally).
objected.

Unsurprisingly, though, no party has

Although any claim of error has arguably been waived,

out of an abundance of caution the court finds it necessary to
put this issue to bed.

Deutsche Bank’s counterclaim is dismissed

without prejudice for failure to prosecute in light of the above
recitation, see Fed. R. Civ. P. 41(b)-(c), but may be reinstated
within 14 days upon a showing of good cause.
The clerk shall enter an amended judgment in accord with
this order.

The case will remain closed.

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SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

June 14, 2013

Stephen T. Martin, Esq.
David E. Fialkow, Esq.
Michael R. Stanley, Esq.
Brian S. Grossman, Esq.
Peter G. Callaghan, Esq.
Scott C. Owens, Esq.

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