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Martha A.Akers v. Beal Bank et al

January 11, 2011

MARTHA A.AKERS, PLAINTIFF,
v.
BEAL BANK ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 42, 47

MEMORANDUM OPINION

DENYING WITHOUT PREJUDICE THE DEFENDANTS'MOTION TO DISMISS;DENYING THE DEFENDANTS'MOTION TO STRIKE THE PLAINTIFF'S JULY 8,2010DECLARATION

I. INTRODUCTION

This matter is before the court on the defendants' motion to dismiss based on the pro se plaintiff's failure to participate in discovery and adequately prosecute her case. In opposing that motion, the plaintiff has filed a supplemental declaration, which the defendants have moved to strike. For the following reasons, the court denies both of the defendants' motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

In April 2009, the plaintiff commenced this action against Beal Bank and Countrywide Home Loans (collectively, "the defendants"), asserting breach of contract and various torts claims in connection with a property located in the District of Columbia that she formerly owned. See generally Compl. Shortly thereafter, the defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8. The court granted in part and denied in part the defendants' motion, ultimately allowing the plaintiff to proceed with her breach of contract claim but dismissing her tort claims. See generally Mem. Op. (Nov. 13, 2009).

On January 21, 2010, the court held an initial status hearing at which the plaintiff failed to appear. Minute Entry (Jan. 21, 2010). At the hearing, the court entered a scheduling order which included a discovery deadline of April 21, 2010. Id. As the case progressed, however, the plaintiff neglected her discovery obligations. More specifically, the plaintiff did not provide written responses to the defendants' interrogatories and failed to adequately respond to the defendants' interrogatories regarding damages. Defs.' Mot. to Compel, Ex. A., Decl. of William Liles, the Defendants' Former Attorney, ("Liles 1st Decl.") ¶¶ 2-3. Additionally, the plaintiff failed to appear on time at her deposition, which had been previously rescheduled in order to accommodate the plaintiff's schedule. Id. ¶ 2. Due to the plaintiff's tardiness, the deposition was cancelled altogether. Id. ¶¶ 11, 13. Based on these events, the defendants filed a motion asking the court to compel the plaintiff to participate in discovery and to attend her deposition. See generally Defs.' Mot. to Compel.

On May 18, 2010, the court held an interim status hearing to which the plaintiff showed up an hour late. During the hearing, the court granted the defendants' motion to compel. Minute Entry (May 18, 2010). The court further advised the plaintiff that if she continued to neglect her discovery obligations, the case would be dismissed. Additionally, the court granted the defendants a forty-five day extension (until July 2, 2010) to complete their discovery and to depose the plaintiff, and ordered that the plaintiff pay, by July 17, 2010, $255 to cover the costs for costs for the April 21, 2010 deposition which never occurred due to the plaintiff's failure to appear on time. Minute Entry (May 18, 2010).

On June 8, 2010, because the plaintiff had not yet fulfilled these obligations, the defendants filed a second motion to dismiss under Rules 37 and 41. See generally Defs.' 2d Mot. to Dismiss. In response, the plaintiff filed an opposition on June 23, 2010, see Pl.'s Opp'n to Defs.' 2d Mot. to Dismiss ("Pl.'s Opp'n"), and later filed a supplemental declaration on July 8, 2010, after the defendants had already submitted their reply, see Pl.'s July 8, 2010 Decl. In her three-sentence declaration, the plaintiff states that on June 22, 2010, she submitted the required written responses to the defendant and on July 2, 2010, she attended her deposition. Pl.'s July 8, 2010 Decl. at 1. The defendant subsequently moved to strike the plaintiff's filing. See Defs.' Mot. to Strike at 1.

With the defendants' second motion to dismiss and motion to strike now ripe for the court's consideration, the court turns to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. The Court Denies the Defendants' Motion to Strike the Plaintiff's July 8, 2010 Declaration

The defendants argue that the plaintiff's supplemental declaration constitutes a sur-reply and, as such, is unauthorized under the Federal Rules of Civil Procedure. Def.'s Mot. to Strike at 1. The defendants further assert that the plaintiff's supplemental declaration does ...


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