DILLON v. BMO HARRIS BANK, N.A. et al

Filing 96

MEMORANDUM TO COUNSEL REGARDING MARCH 6, 2014 HEARING ON PENDING MOTIONS signed by JUDGE CATHERINE C. EAGLES on 02/28/2014 as set out herein. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES DILLON, on Behalf of Himself
and All Others Similarly Situated,
Plaintiffs,
v.
BMO HARRIS BANK, N.A., FOUR
OAKS BANK & TRUST, a North
Carolina-Chartered Bank, GENERATIONS
FEDERAL CREDIT UNION, and BAY
CITIES BANK, a Florida State-Chartered
Bank,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

1:13-CV-897

MEMORANDUM TO COUNSEL
REGARDING MARCH 6, 2014 HEARING ON PENDING MOTIONS
The Court has conducted a preliminary review of all the pending motions and the briefs.
It appears to the Court that the following issues are presented by the pending motions:
ISSUE ONE:

Are the Arbitration Clauses binding in the circumstances of this
case? If so, is dismissal required or should arbitration be
compelled and the case stayed?
Movants:

ISSUE TWO:

Does the Loan Agreement require dismissal because of the Forum
Selection Clause and/or the Choice of Law Clause?
Movant:

ISSUE THREE:

Generations
BMO Harris
Bay Cities

Generations

Does the Loan Agreement require dismissal because of the
Waiver-of-Class-Action-Rights Clause?
Movants:

Generations
Bay Cities

ISSUE FOUR:

Should the claims against BMO Harris be severed?
Movant:

ISSUE FIVE:

BMO Harris

Should the case against BMO be transferred to the Eastern District
of New York?
Movant:

ISSUE SIX:

BMO Harris

Should the case be dismissed because plaintiff failed to join an
indispensable party as required by Rule 19?
Movants:

All Defendants
(Generations’ Request pending per Doc. 89)

ISSUE SEVEN:

Does the complaint state a claim under RICO?
Movants:

All Defendants
(Generations’ Request pending per Doc. 89)

ISSUE EIGHT:

Does the complaint state claims under state law?
Movants:

All Defendants
(Generations’ Request pending per Doc. 89)

ISSUE NINE:

Should Generations be allowed to join the Motions to Dismiss re:
Rule 19, RICO, and state law claims?
Movant:

Generations (Briefing not complete)

The Court asks that the parties review this list and consult with each other. If the Court
has missed any issues or movants or if this list is otherwise inaccurate or incomplete, it would be
helpful to the Court if the parties would so advise the Case Manager by 4:00 p.m. March 4, 2014,
preferably in a short joint email explaining the omission or error.
The Court expects to hear argument on all the issues, except possibly Issue Nine; if the
plaintiff objects to that motion, (Doc. 89), the Court will not hear this issue unless plaintiffs are
agreeable to hearing it without the additional briefing authorized by local rule. Subject to

2

revision after further consideration of the briefs, the Court presently intends to follow this
schedule:
10:00 –11:00 a.m.

Arbitration Issue (Issue 1 above)

11:00 – 11:10

Issues Related to Forum Selection Clause, the Choice of Law
Clause, and the Waiver-of-Class-Action-Rights Clause (Issues 2
and 3)

11:10 – 11:20

Issues Related to Severance and Requested Transfer to E.D.N.Y.
(Issues 4 and 5)

11:20 – 11:30

Early recess, or extension of argument should the court have
additional questions, or possibly Issue Nine (Doc. 89)

11:30 – 11:45

Recess

11:45 – 12:15

Joinder Issue (Issue 6)

12:15 –12:35

RICO Claim (Issue 7)

12:35 – 1:00

State Law Claims (Issue 8)

1:00

Adjourn

As to each issue identified above, the Court will hear from one lawyer per defendant and
one lawyer for the plaintiff. In other words, while different lawyers may speak for a party on
different issues, the Court will not allow more than one lawyer per party on any one issue.
The defendants will together receive about half the argument time on each issue, and the
plaintiffs will receive the other half.
As to those issues where more than one defendant has filed a motion, the Court would
prefer that the defendants confer and, for each issue, designate one attorney to serve as lead
advocate on that issue during oral argument at the March 6 hearing, or, in the alternative,
otherwise agree on how the defense half of the argument time will be shared. If the defendants

3

are unable to so agree, the Court will call on defense counsel in the order of its own choosing and
will evenly divide the defense half of the argument time between the moving defendants.
Before the hearing begins, it would be helpful to the Court if the plaintiffs and each
defendant would let the Case Manager know the name of the attorney who will argue each issue
and the details of any agreement the defendants have reached concerning a lead advocate or the
sharing of their argument time.
This the 28th day of February, 2014.

__________________________________
UNITED STATES DISTRICT JUDGE

4