GRAVES v. WELLS FARGO BANK N.A.

Filing 14

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 08/01/2014, that Plaintiff's Letter Motion (Docket Entry 12 ) and Plaintiff's Motion to Extend Time (Docket Entry 13 ) are DENIED. FURTHER that the Clerk shall update the Docket to reflect that Plaintiff proceeds pro se with a service address of 2012 Sunnybrook Drive, Burlington, North Carolina 27215. FURTHER that the Clerk shall mail Plaintiff a copy of this Memorandum Opinion and Order, as well as a Notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), affording him until August 25, 2014, to file a pro se response to Defendant's Motion to Dismiss (Docket Entry 9 ).(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MICHAEL J. GRAVES,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
WELLS FARGO BANK, N.A.,
Defendant.

1:14CV398

MEMORANDUM OPINION AND ORDER
This case comes before the Court on Plaintiff’s Letter Motion
(Docket Entry 12) and Motion to Extend Time to Respond (Docket
Entry 13), which belatedly seek extensions of time for Plaintiff to
respond to Defendant’s Motion to Dismiss (Docket Entry 9).
Docket Entries dated July 25 & 28, 2014.)

(See

For the reasons that

follow, the Court will deny Plaintiff’s instant Motions; however,
because Plaintiff technically proceeded without counsel in this
Court at the time of the filing of Defendant’s Motion to Dismiss,
the Court will direct the Clerk to send Plaintiff a Notice advising
him that he has until August 25, 2014, to file a pro se response to
Defendant’s Motion to Dismiss.
BACKGROUND
Defendant removed this case to this Court on May 15, 2014.
(Docket Entry 1.)

In doing so, Defendant served the removal

documents by mail directed to Bryan Ray (the attorney who filed the

Complaint on Plaintiff’s behalf in state court (see Docket Entry 2
at 8)).

(See Docket Entry 1 at 5.)

On May 20, 2014, Defendant

moved for an extension of time to answer or otherwise respond to
Plaintiff’s Complaint.

(Docket Entry 6.)

In that filing, counsel

for Defendant represented that “[c]ounsel for Plaintiff ha[d]
indicated that he consent[ed] to th[at] extension of time.”
at 1.)

(Id.

By letter dated May 27, 2014, the Court informed Attorney

Ray that he “must register as an e-filer within 30 days.”
Entry 8 at 1.)

(Docket

Said letter identified resources of the Court

(electronic and human) that Attorney Ray could consult if he had
any questions.

(See id.)

On June 12, 2014, Defendant moved to dismiss Plaintiff’s
Complaint.

(Docket Entry 9.)

Attorney Ray by mail.
2014, to respond.

Defendant served that motion on

(See id. at 4.)

Plaintiff had until July 7,

See M.D.N.C. LR7.3(f) (allowing 21 days to

respond to motions other than for summary judgment); Fed. R. Civ.
P. 6(d) (adding three days to response period when service of
motion occurs via mail).

On July 16, 2014, after Plaintiff did not

timely file any response (see Docket Entries dated June 12, 2014,
to July 16, 2014), the Clerk mailed a letter to Attorney Ray noting
the consequence of that failure, i.e., that, pursuant to Local Rule
7.3(k), the Court would consider Defendant’s Motion to Dismiss
unopposed.

(Docket Entry 11 at 1.)

Said letter further informed

Attorney Ray that, if Plaintiff in fact opposed dismissal “and
2

excusable neglect can be shown for having failed to respond, [the
Clerk] will submit the explanation and proposed response to the
Court.”

(Id. (emphasis added).)

On July 25, 2014, the Court received the instant Letter Motion
(bearing the signature of Attorney Ray and the date of July 24,
2014), which “formally request[ed] an extension of time on behalf
of [Plaintiff] . . . .”

(Docket Entry 12 at 1.)

As grounds for a

requested extension of 60 days (impliedly, though not explicitly,
to respond to Defendant’s Motion to Dismiss), the instant Letter
Motion states:

“[Plaintiff] hired me to handle a foreclosure

matter in state court; however once it was removed to federal court
I became no longer able to represent him because I do not have a
Federal License to practice law.

[Plaintiff] is still searching

for a Federal Lawyer to assist him in this case . . . .”
Plaintiff

filed no

brief

with

the

instant Letter

(Id.)

Motion

and

Defendant immediately notified the Clerk of its opposition to the
requested relief.

(See Docket Entries dated July 25, 2014.)

On July 28, 2014, the Court received the instant Motion to
Extend Time (Docket Entry 13), which bore the date of July 24,
2014, followed by a signature line over the words “Attorney for
Plaintiff” with the type-written signature “(s) Bryan Ray” (id. at
2). According to the instant Motion to Extend Time, “[p]ursuant to
Federal Rule of [C]ivil [P]rocedure 6(b), Plaintiff [] by and
through counsel moves this [C]ourt for an extension of time of 30
3

days within which it [sic] may respond to [] Defendant[’s] . . .
[M]otion to [D]ismiss.”

(Id. at 1 (emphasis added).)

As support

for that request, the instant Motion to Extend Time asserts:
1) [] Plaintiff [] hired counsel to represent [Plaintiff]
and file an action on behalf of [Plaintiff] in state
court, however [] Defendant [] moved the action to [this]
[C]ourt on May 15th 2014.
2) [] Plaintiff’s Counsel attorney Bryan Ray has not been
admitted to practice law in the Middle District of North
Carolina.
3) [] Plaintiff [] is currently looking for substitute
representation that will be able to assist in this
matter, and anticipates they [sic] he will be able to
acquire said representation within thirty days.
4) There is currently a Rule 60 motion in reference to
File number 09-Sp-840 pending in state court that is
scheduled for hearing on August 7th 2014 at 3:15 PM.
5) No party will be prejudiced by the brief extension
requested.
(Id. at 1-2.)
The instant Motion to Extend Time further represents that
“Plaintiffs

[sic]

counsel

has

had

consolation

[sic]

with

[]

Defendant’s counsel and notes that [] Defendant has been made aware
of this [M]otion and is opposed.”

(Id. at 2.)

Finally, under the

heading “MEMORANDUM OF LAW IN SUPPORT,” the instant Motion to
Extend Time states:

“A good cause has been shown for the extension

of time requested herein, the time for [] Plaintiff to file its
response to [] Defendants [sic] motion shall be extended to August

4

19th 2014.” (Id.) Plaintiff filed no brief with the instant Motion
to Extend Time.

(See Docket Entries dated July 28, 2014.)
DISCUSSION

As shown in the Background section, Plaintiff did not seek an
extension of time to respond to Defendant’s Motion to Dismiss until
after the deadline for such response.

Further, Plaintiff did not

file a brief with either of his instant Motions belatedly seeking
an extension of time.

Under this Court’s Local Rules, “[a]ll

motions, unless made during a hearing or at trial, shall be in
writing and shall be accompanied by a brief except as provided in
section (j) of this rule.”

M.D.N.C. LR7.3(a) (emphasis added).

The cross-referenced section (j) does not exempt untimely motions
for extension of time from the briefing requirement, but instead
only relaxes the briefing requirement for motions “for extension of
time . . . .[when the] request therefor is made before the
expiration of the period originally prescribed or as extended by
previous orders[.]” M.D.N.C. LR7.3(j). “A motion unaccompanied by
a required brief may, in the discretion of the Court, be summarily
denied.”

M.D.N.C. LR7.3(k).

The Court sees no reason to refrain

from enforcing the summary denial rule in this case.
However, assuming that such reason exists, Plaintiff’s instant
Motions fail on the merits.

“When an act may or must be done

within a specified time, the court may, for good cause, extend the
time . . . on motion made after the time has expired if the party
5

failed to act because of excusable neglect.”
(emphasis added).
equitable

one,

Fed. R. Civ. P. 6(b)

The excusable neglect inquiry “is at bottom an

taking

account

of

surrounding the party’s omission.”

all

relevant

circumstances

Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993).

“These

include . . . [1] the danger of prejudice to the [opposing party],
[2] the length of the delay and its potential impact on judicial
proceedings, [3] the reason for the delay, including whether it was
within the reasonable control of the movant, and [4] whether the
movant acted in good faith.”

Id.1

“‘Excusable neglect’ is not

easily demonstrated, nor was it intended to be.”

Thompson v. E.I.

DePont Nemours & Co., Inc., 76 F.3d 530, 534 (4th Cir. 1996).
For

purposes

of

this

discussion,

the

Court

will

accept

Plaintiff’s bald assertion that “[n]o party will be prejudiced by
the brief extension requested” (Docket Entry 13 at 2).

Similarly,

the Court will deem the length of delay by Plaintiff brief and the
possible impact of that delay on judicial proceedings minimal
(again for purposes of this discussion only).
1

In reviewing these factors, courts must not focus only on
the actions (or inaction) of the party, but also “on whether [that
party’s] attorney, as [the party’s] agent, did all he [or she]
reasonably could to comply with the [deadline].” Pioneer, 507 U.S.
at 396; see also id. at 396-97 (taking note of prior decisions,
“[i]n other contexts, . . . [holding] that clients must be held
accountable for the acts and omissions of their attorneys” in
declaring that, “in determining whether [a party’s] failure to
[meet a deadline] was excusable, the proper focus is upon whether
the neglect of [the party] and [its] counsel was excusable”).
6

As to the third factor, i.e., the reason for the delay, see
Pioneer, 507 U.S. at 395, Plaintiff has asserted only that Attorney
Ray lacked admission to this Court’s bar at the time of removal.
(See Docket Entry 12 at 1; Docket Entry 13 at 1-2.)

Plaintiff,

however, has not explained why Attorney Ray could not have secured
admission to this Court during the period between the removal date
and the deadline for a response to Defendant’s Motion to Dismiss (a
period

of

nearly

outlined what

two

efforts

months).2
he made

Moreover,
before

the

Plaintiff
deadline

has

to

not

obtain

substitute counsel admitted to this Court. Nor has Plaintiff shown
that he lacked the ability to file a timely pro se response.
Finally, Plaintiff has not given any reason for the belated nature
of his request(s) for an extension of time. The record (summarized
in the Background section) makes clear that Attorney Ray remained
engaged with Plaintiff’s case following removal; yet, even after
notice from the Court regarding the absence of a timely response to
Defendant’s Motion to Dismiss, Attorney Ray waited a week to take
any action.

Given these considerations, the Court concludes that

Plaintiff lacked any viable excuse for the delay and that this
factor thus weighs heavily against him.

2

The Court does not impose particularly burdensome admission
requirements.
See M.D.N.C. LR83.1(b).
Moreover, shortly after
removal, the Court expressly offered assistance in navigating its
procedures to Plaintiff’s counsel. (See Docket Entry 8 at 1.)
7

The fourth factor considers whether Plaintiff acted in good
faith.

See Pioneer, 507 U.S. at 395.

For many of the same reasons

cited in connection with the third factor, the Court cannot find
that Plaintiff acted in good faith.

To the contrary, the Court

concludes that the record lacks any indication that Plaintiff took
any reasonable steps to attempt to comply with the applicable
deadline or to obtain relief from it.

In this regard, the Court

notes that Defendant served Attorney Ray with its Motion to Dismiss
and that he has not contended that either he or Plaintiff lacked
knowledge

of

the

response

deadline.

Consciously

ignoring

a

deadline does not constitute good faith conduct. See United States
v. Assorted Firearms, Motorcycles, & Other Personal Prop., No.
CV09-1887DOC(MlGx), 2013 WL 812076, at *3 (C.D. Cal. Feb. 21, 2013)
(unpublished) (“”[T]he respondents here did not act in good faith.
They chose to . . . simply ignore the notices provided to them.”).
Although the foregoing discussion results in a two-to-two
split among the four Pioneer factors, the United States Court of
Appeals for the Fourth Circuit has declared that the third Pioneer
factor weighs most heavily in the balance.
at 534.

See Thompson, 76 F.3d

Moreover, other courts have recognized that “the equities

will rarely if ever favor a party who fails to follow the clear
dictates of a court rule and

. . . where [as here] the rule is

entirely clear . . . a party claiming excusable neglect will, in
the ordinary course, lose under the Pioneer test.”
8

Silivanch v.

Celebrity Cruises, Inc., 333 F.3d 355, 366-67 (2d Cir. 2003)
(internal brackets and quotation marks omitted).

Finally, the

Supreme

construe

Court

has

indicated

that

courts

should

the

excusable neglect standard in a fashion that deters “parties from
freely ignoring court-ordered deadlines in the hopes of winning a
permissive reprieve . . . .”

Pioneer, 507 U.S. at 395.

In light

of the foregoing authority, the Court concludes that Plaintiff has
failed to show excusable neglect.
Nonetheless, when Defendant filed its Motion to Dismiss and
when the response time expired, Plaintiff did not have counsel
authorized to represent him in this Court and thus effectively
proceeded pro se.

See M.D.N.C. LR83.1(c)(1) (“Litigants in civil

and criminal actions and parties in bankruptcy proceedings before
this Court, except parties appearing pro se, must be represented by
at least one attorney who is a member of the bar of this Court.”).
“[I]n Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), [the
Fourth Circuit] held that pro se litigants must be advised of their
right to file counteraffidavits or other material in response to
motions for dismissal or summary judgment.”

Saifullah v. Johnson,

No. 91-7113, 948 F.2d 1282 (table), 1991 WL 240479, at *1 (4th Cir.
Nov. 20, 1991) (unpublished).

Given that requirement, the Court

will direct the Clerk to send a Roseboro letter directly to
Plaintiff and to defer any referral of Defendant’s Motion to
Dismiss for disposition until Plaintiff has an opportunity to file
9

a pro se response.

See United States v. Clark, No. 93-6986, 27

F.3d 564 (table), 1994 WL 247163, at *2 (4th Cir. June 8, 1994)
(unpublished) (“Because the district court failed to give Roseboro
notice before granting judgment on the pleadings in favor of the
United States, we vacate the order of the district court denying
[the pro se defendant’s] motion for reconsideration and remand for
further proceedings.”); see also Dzaringa v. Sears, Roebuck & Co.,
Civil Action No. DKC 12-1609, 2013 WL 5634346, at *2 n.2 (D. Md.
Oct. 15, 2013) (unpublished) (“[The] [p]laintiff acknowledges the
untimeliness of his opposition, but contends that he did not
receive the letter the Clerk’s office sent in accordance with
Roseboro, informing him that a dispositive motion had been filed
and that he had had seventeen (17) days to respond or risk entry of
judgment against him. [The] [p]laintiff’s untimeliness will be
excused.” (internal citation omitted)).
CONCLUSION
Plaintiff’s

instant

Motions

lack

merit,

but,

given

that

Plaintiff technically lacked counsel in this Court from the time of
the filing of Defendant’s Motion to Dismiss through the response
deadline, it seems prudent to send Plaintiff a Roseboro letter and
to permit him an opportunity to file a pro se response.
IT IS ORDERED that Plaintiff’s Letter Motion (Docket Entry 12)
and Plaintiff’s Motion to Extend Time (Docket Entry 13) are DENIED.

10

IT IS FURTHER ORDERED that the Clerk shall update the Docket
to reflect that Plaintiff proceeds pro se with a service address of
2012 Sunnybrook Drive, Burlington, North Carolina 27215.3
IT IS FURTHER ORDERED that the Clerk shall mail Plaintiff a
copy of this Memorandum Opinion and Order, as well as a Notice
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
affording him until August 25, 2014, to file a pro se response to
Defendant’s Motion to Dismiss (Docket Entry 9).
This the 1st day of August, 2014.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

3

The Complaint lists that address as
Plaintiff “resides.” (Docket Entry 2 at 1.)
11

the

place

where