Lamm v. Branch Banking and Trust Company, et al

Filing 57

ORDER granting 53 Motion to Strike 52 Notice of Suggestion of Subsequent Authority - Signed by District Judge Louise Wood Flanagan on 3/30/2016. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:14-CV-219-FL
JOHN RICHARD LAMM,
Plaintiff,
v.
BRANCH BANKING AND TRUST
COMPANY and SCOTT P. EVANS,
Defendants.

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ORDER

This matter is before the court on plaintiff’s motion to strike defendants’ notice of
subsequently decided controlling authority, made pursuant to Local Rule 7.1(g). (DE 53, 52).
Defendants have responded, and the issues raised are ripe for ruling. For the following reasons, the
court grants plaintiff’s motion.
COURT’S DISCUSSION
On February 9th, 2016, defendants filed a “Suggestion of Subsequently Decided Authority,”
with the intent of directing the court’s attention to two “authorities”. (DE-52). The first is an
unpublished North Carolina Court of Appeals opinion. Solomon v. Scope Servs., Inc., No. COA15851, 2016 WL 409808 (N.C. Ct. App. Feb. 2, 2016). The second is a complaint filed by the Federal
Deposit

Insurance

Corporation

(“FDIC”).

In

re

Lamm,

FDIC-12-052e/FDIC-12-053k/FDIC-15-274b (published Jan. 29, 2016).
Motion practice in this court is governed by Local Civil Rule 7.1. Rule 7.1, inter alia, sets
forth requirements for filing suggestions of subsequently decided authority. In particular, that rule

permits filing of such a suggestion in the event of subsequently decided “controlling” authority.
Local Civil Rule 7.1(g). In addition, Rule 7.1(g) requires that the suggestion be “without argument”
and “contain only the citation to the case relied upon if published or a copy of the opinion if the case
is unpublished. Id. Not only must the authority be “controlling”, and presented “without argument”,
the text of Rule 7.1(g) makes it clear that only “cases” can be considered “controlling authority.”
Id.
Neither of the “authorities” cited by defendants in their suggestion are controlling, and the
second is not even a case. Defendants recognize they are not controlling in their briefing, referring
to the North Carolina Court of Appeals unpublished opinion as “technically not controlling
authority” (DE 53 at 2), and the FDIC filing as “not controlling authority within the meaning of
Local Civil Rule 7.1(g).” (Id. at 3). In addition, defendants’ suggestion discusses the documents
in question.
Therefore, because defendants’ suggestion is not in compliance with the requirements of
Rule 7.1(g)., the court grants plaintiff’s motion to strike.
Defendants’ response to the motion to strike “formally request[s] the court to judicially
notice the FDIC complaint.” (Id.). To the extent that defendants wish the court to take judicial
notice of the FDIC proceedings, they may so formally move, pursuant to Federal Rule of Evidence
201.1 Defendants may file such a motion within 14 days of the date of this order, and plaintiffs shall
have 14 days thereafter to file a response. There shall be no replies.

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“On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of
the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to
be heard.” Fed. R. Evid. 201(e).

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CONCLUSION
Plaintiff’s motion to strike (DE 53) is GRANTED. The clerk is DIRECTED to strike
docket entry 52.
SO ORDERED, this the 30th day of March, 2016.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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