Farley et al v. Bank of America, N.A. et al, No. 3:2014cv00568 - Document 33 (E.D. Va. 2014)

Court Description: MEMORANDUM OPINION signed by District Judge James R. Spencer on 10/28/2014. Copies to all parties and counsel of record.(jsmi, )

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Farley et al v. Bank of America, N.A. et al Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION ALECIA Y. FARLEY, et al., Plaintiffs, v. Action No. 3:14-CV-568 BANK OF AMERICA, N.A., et al., Defendants. MEMORAN D U M OPIN ION THIS MATTER is before the Court on Defendants Bank of Am erica, N.A. s and Bank of Am erica Hom e Loan Servicing L.P. s ( BANA s ) Motion To Strike Plaintiffs' Response To Motion To Dism iss (ECF No. 15) ( Motion to Strike Plaintiffs Response ), Plaintiffs Alecia Y. Farley s and Marvin A. Farley s ( Plaintiffs ) Motion To Seek Leave To Am end Counter-Claim For Motion to Dism iss (ECF No. 22) ( Motion for Leave to Am end ), Plaintiffs Motion To Dism iss Defendants Motion To Strike Plaintiffs Response To Motion To Dism iss (ECF No. 24) ( Motion to Dism iss BANA s Motion to Strike Plaintiffs Response ), BANA s Motion To Strike Plaintiffs Surreply (ECF No. 28) ( Motion to Strike ), and Plaintiffs Motion To Seek Leave To Respond And To Dism iss Defendants Motion To Strike Plaintiffs Surreply (ECF No. 31) (Motion for Leave to File Surreply and Motion to Dism iss ). The aforem entioned, interrelated m otions stem from BANA s Motion to Dism iss (ECF No. 9), which is currently pending before the Court. I. PROCED U RAL BACKGROU N D On August 12, 20 14, Plaintiffs filed a com plaint in this Court against BANA, who appears to be the holder and servicer of a note and m ortgage to property Plaintiffs own or owned at one tim e. The com prehensive, thirty-one (31) page com plaint alleges the following claim s against BANA: Count I: Violation of the Virginia Consum er Protection Act; Count II: Violation of 15 U.S.C. § 1692(f)(1) (Unfair Practices); Count III: Conversion; Count IV: 1 Dockets.Justia.com Fraudulent Concealm ent; Count V: Violation of crim inal code 18 U.S.C. § 1341 (fraud and swindles); and Count VI: Violation of Uniform Com m ercial Code ( UCC ) § 8-10 2 (Adverse Claim ) and § 3-30 5 (Recoupm ent).1 The allegations stem from Plaintiffs belief that BANA obtained Plaintiffs financial inform ation through illicit m eans and entered Plaintiffs into a loan m odification without their knowledge or consent. On Septem ber 5, 20 14, BANA filed a Motion to Dism iss Plaintiffs com plaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 9. On Septem ber 23, 20 14, Plaintiffs filed a response entitled, Counter-Claim for Motion to Dism iss. ECF No. 12. Subsequently, BANA filed its reply on Septem ber 29, 20 14. ECF No. 13. On Septem ber 29, 20 14, BANA also filed a Motion to Strike Plaintiffs Response under Local Rule 7(F)(3) because Plaintiffs Counter-Claim for Motion to Dism iss exceeded the thirty (30 ) page lim it. ECF No. 15. On October 3, 20 14, Plaintiffs filed a Motion for Leave to Am end their Counter-Claim for Motion to Dism iss. ECF No. 22. In their m oving papers, Plaintiffs explicitly stated that they filed the Motion for Leave to Am end pursuant to Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure. Claim ing the right to am end as a m atter of course, Plaintiffs attached a proposed Am ended Mem orandum of Law In Support of Counter-Claim For Motion To Dism iss. ECF No. 22-1. BANA does not object to Plaintiffs am ended response to the extent Plaintiffs are attem pting to file a response brief that conform s to the page requirem ents in Local Rule 7(F)(3). BANA s Mem orandum of Law in Support of Motion to Dism iss ( Def. s Mem . ) at 1 n.1. On October 6, 20 14, Plaintiffs filed a Motion to Dism iss BANA s Motion to Strike Plaintiffs Response. ECF No. 24. With BANA s reply, the briefing on BANA s Motion to Dism iss was com plete pursuant to Local Rule 7(F)(1). However, on October 9, 20 14, Plaintiffs without leave of Court filed Plaintiffs Response Defendants Reply In Support Motion To Dism iss [sic] ECF No. 27. On October 14, 20 14, BANA filed a Motion to Strike Plaintiffs Surreply. ECF No. 28. In turn, 1 This last Count is incorrectly labeled as Count V in Plaintiffs com plaint. Com plaint ( Com pl. ) at 27. 2 Plaintiffs filed a Motion for Leave to File Surreply and Motion to Dism iss BANA s Motion to Strike. ECF No. 31. II. D ISCU SSION A. BAN A s Motion to Strike Plaintiffs Response, ECF N o. 15, and Plaintiffs Motion to Dism iss BAN A s Motion to Strike Plaintiffs Response, ECF N o. 24 On Septem ber 5, 20 14, BANA filed a Motion to Dism iss Plaintiffs com plaint and an accom panying m em orandum in support pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF Nos. 9, 10 . In response, Plaintiffs filed a Counter-Claim for Motion To Dism iss along with an accom panying m em orandum . ECF No. 12. Plaintiffs response is fortythree (43) pages not including attached exhibits. Thus, BANA m oved to strike Plaintiffs response because it violated Rule 7(F)(3) of the Local Rules. ECF No. 15. Rule 7(F)(3) specifically provides that briefs in response shall not exceed thirty (30 ) . . . pages. E.D. Va. Local Civil Rule 7(F)(3). Where a response brief greatly exceeds the page lim it established in Rule 7(F)(3), the Court has th e authority to strike the response brief. U.S. ex rel. DRC, Inc. v. Custer Battles, LLC, 472 F. Supp. 2d 787, 792 (E.D. Va. 20 0 7) aff d, 562 F.3d 295 (4th Cir. 20 0 9) (striking two response briefs because they totaled forty-five pages). Because Plaintiffs forty-three (43) page response, filed on Septem ber 23, 20 14, exceeds the page lim it m andated by Local Rule 7(F)(3), the Court hereby GRANTS BANA s Motion to Strike Plaintiffs Response, ECF No. 15, and DIRECTS that Plaintiffs Counter-Claim For Motion To Dism iss, be stricken, ECF No. 12. Plaintiffs Motion to Dism iss BANA s Motion to Strike Plaintiffs Response, ECF No. 24, is hereby DENIED AS MOOT because the Court is granting Plaintiff leave to am end its response to BANA s Motion to Dism iss so as to com ply with Local Rule 7(F)(3). Therefore, the Court sees no need for oral argum ent on this m atter, see ECF No. 20 . See E.D. Va. Loc. Civ. R. 7(J ). 3 B. Plaintiffs M otion To Seek Leave To Am end Counter-Claim for Motion to Dism iss, ECF N o. 22 and Plaintiffs Motion for Oral Argum ent, ECF N o. 20 On October 3, Plaintiffs filed a Motion To Seek Leave To Am end Counter-Claim For Motion To Dism iss. ECF No. 22. Because Plaintiff s Am ended Mem orandum Of Law In Support Of Counter-Claim For Motion To Dism iss only seeks to conform to the page lim its m andated by Local Rule 7(F)(3) and because BANA does not oppose such an am endm ent, the Court hereby GRANTS Plaintiffs Motion for Leave to Am end, ECF No. 22 and DIRECTS the Clerk to file Plaintiffs Am ended Mem orandum of Law In Support Of Counter-Claim For Motion To Dism iss, ECF No. 22-1. C. BANA s Motion to Strike, ECF No. 28, and Plaintiffs Motion for Leave to Respond and Motion to Dism iss, ECF N o. 31. BANA filed a Motion to Dism iss on Septem ber 5, 20 14. In turn, Plaintiffs filed a response on Septem ber 23, 20 14. BANA filed its reply on Septem ber 29, 20 14. Upon BANA filing its reply on Septem ber 29, 20 14, the briefing on BANA[ s] Motion to Dism iss was com plete pursuant to Local Rule 7(F)(1). Plaintiff then filed a Surreply on October 9, 20 14, ECF No. 27, which was out of order and not in com pliance with the local rules. See E.D. Va. Loc. Civ. R. 7(F)(1). Therefore, the Court hereby GRANTS BANA s Motion to Strike, ECF No. 28 and DENIES Plaintiffs Motion for Leave to Respond and Motion to Dism iss, ECF No. 31. III. CON CLU SION For the aforem entioned reasons, the Court hereby: 1. GRANTS BANA s Motion to Strike Plaintiffs Response, ECF No. 15, and, accordingly, DENIES Plaintiffs Motion to Dism iss BANA s Motion to Strike Plaintiffs Response, ECF. No. 24; 2. GRANTS Plaintiffs Motion for Leave to Am end, ECF No. 22, DIRECTS the Clerk to file Plaintiffs Am ended Mem orandum of Law In Support Of Counter-Claim For Motion To Dism iss, ECF No. 22-1, and DENIES AS MOOT Plaintiffs Motion for Oral Argum ent, ECF No. 20 ; 3. GRANTS BANA s Motion to Strike, ECF No. 28 , and DENIES Plaintiffs Motion for Leave to Respond and Motion to Dism iss, ECF No. 31. Let the Clerk send a copy of this Mem orandum Opinion to all parties and counsel of record. 4 An appropriate Order shall issue. It is SO ORDERED. ENTERED this 28 th _____________________/s/__________________ James R. Spencer Senior U. S. District Judge day of October 20 14 5

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