Steele v. Deutsche Bank National Trust Company, Trustee

Filing 6

ORDER striking document 5 : Objection to Notice of Removal. Clerk to enter default against Deutsche Bank. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Walter Steele
v.

Civil No. 14-cv-350-JD
Opinion No. 2014 DNH 200

Deutsche Bank National
Trust Company, Trustee
O R D E R
Walter Steele brought an action in state court against
Deutsche Bank National Trust Company to enjoin the foreclosure
sale on his home and seeking damages on claims of breach of
contract, negligent misrepresentation, and breach of the covenant
of good faith.

On August 1, 2014, the state court granted

Steele’s ex parte petition to temporarily enjoin the foreclosure
sale, and a hearing was scheduled for August 11, 2014.

Deutsche

Bank removed the case to this court on August 8, 2014, and on the
same date filed a notice in this court of the pending hearing in
state court.1
On August 28, 2014, Deutsche Bank filed a document titled
“Opposition to Plaintiff’s Verified Ex Parte Petition to Enjoin
Foreclosure Sale and Complaint for Damages and Request for the
Opportunity to be Heard.”2

In the opposition, Deutsche Bank

asked the court to deny Steele’s petition to enjoin the

1

In response to removal of the case, the state court hearing
was canceled.
2

The “Opposition” is docketed as “Objection to 1 Notice of
Removal-New Case.” Because Deutsche Bank filed the Notice of
Removal, that entry appears to be an error.

foreclosure sale and to “dissolve any remaining temporary
restraining order that may currently exist in this matter.”3
Deutsche Bank also asked the court to schedule a hearing on the
petition for a temporary restraining order.
respond to the “Opposition.”

Steele did not

Deutsche Bank has not filed an

answer or a motion to dismiss.

I.

Opposition
The Federal Rules of Civil Procedure govern a case removed

from state court.

Fed. R. Civ. P. 81(a).

Defenses to the

complaint are to be asserted in a responsive pleading or, if
applicable, in a motion to dismiss under Federal Rule of Civil
Procedure 12(b).

In addition, a request for relief or any action

by the court must be filed as a motion.4

See LR 7.1(a).

Therefore, because Deutsche Bank’s “Opposition” is not in
compliance with the Federal Rules of Civil Procedure and the
Local Rules in this district, it cannot be considered.5

3

In addition to addressing the temporary injunction issue,
Deutsche Bank’s “Opposition” challenges Steele’s request for
preliminary injunctive relief.
4

Deutsche Bank is represented by counsel and, therefore, is
not entitled to any leniency that might be afforded a pro se
party.
5

In addition, to the extent the “Opposition” seeks to
terminate the temporary restraining order, it appears that the
temporary restraining order granted by the state court on August
1, 2014, has expired. See Super. Ct. R. 48(a); Fed. R. Civ. P.
65(b)(2); Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers Local No. 70, 415 U.S. 423, 440 n.15 (1974);
Wargelin v. Bank of Am., N.A., 2013 WL 5587817, at *4 (E.D. Mich.
Oct. 10, 2013).
2

II.

Default
“A defendant who did not answer before removal must answer

or present other defenses or objections under these rules within
the longest” of three periods provided in Rule 81(c)(2).

The

three periods are twenty-one days after receiving a copy of the
complaint or petition, twenty-one days after being served with
the summons, and seven days after the notice of removal was
filed.

Fed. R. Civ. P. 81(c)(2).

When a defendant does not

plead or defend within the time allowed, default shall be
entered.

Fed. R. Civ. P. 55(a).

According to the state record, Deutsche Bank was served with
the summons in this case on August 4, 2014, which would make the
deadline for Deutsche Bank’s answer August 25, 2014.

The notice

of removal was filed on August 8, 2014, which would make the
deadline August 15, 2014.

Therefore, the longer period is

calculated from the date the summons was served, making the
deadline August 25, 2014.
Deutsche Bank did not file an answer or a motion under
Federal Rule of Civil Procedure 12(b) before August 25, 2014.
Therefore, Deutsche Bank is in default.

Conclusion
For the foregoing reasons, the defendant’s “Opposition to
Plaintiff’s Verified Ex Parte Petition to Enjoin Foreclosure Sale
and Complaint for Damages and Request for the Opportunity to be

3

Heard,” docketed as “Objection to 1 Notice of Removal,” (document
no. 5) is struck.
The clerk of court shall enter the defendant’s default.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
September 23, 2014
cc:

Jessica Suzanne Babine, Esq.
Peter G. McGrath, Esq.

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