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Lynch v. Bank of America, N.A.

United States District Court, S.D. West Virginia, Beckley Division

December 18, 2017

BANK OF AMERICA, N.A., Defendant.


          Omar J. Aboulhosn United States Magistrate Judge

          Pending before the Court is Defendant's Motion to Dismiss and Memorandum in support. (Document Nos. 17 and 18.) By Standing Order entered on March 9, 2017, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 2.) Having examined the Complaint and considered the particular circumstances herein, the undersigned concludes that this case must be dismissed.


         On February 3, 2017, Plaintiff, pro se, [1] filed a 15-page multi-count civil Complaint in the Circuit Court of Raleigh County, West Virginia, alleging that Defendant made misrepresentations to her involving her eligibility for a mortgage modification when she became delinquent in her monthly payments on the promissory note securing real property.[2] (Document No. 1-2.) Plaintiff sues for injunctive relief to prevent impending foreclosure of the real property, reformation of contract to reflect the true value of the real property, breach of implied covenant, promissory estoppel, unfair competition, rescission of contract, negligent misrepresentation, intentional misrepresentation, monetary damages, compensatory, consequential and punitive, reasonable costs and interest, and rescission and reformation of the promissory note. (Id.) Subsequently, Defendant removed this matter to this Court. (Document No. 1.)

         As noted supra, on November 15, 2017, Defendant filed its Motion with accompanying Memorandum of law. (Document Nos. 17 and 18.) That same day, the undersigned issued a Roseboro notice[3] to Plaintiff directing her to file her response to Defendant's Motion by December 1, 2017. (Document No. 19.); Plaintiff has filed no response to Defendant's Motion. Accordingly, this matter is fully briefed and ready for resolution.

         Defendant's Argument in Support of Motion to Dismiss

         Defendant asserts that it filed its first set of discovery requests to Plaintiff on July 19, 2017. (Document No. 18 at 1.) Plaintiff failed to respond to these requests, and Defendant moved to compel on October 5, 2017. (Id.) The Court held a hearing on the motion on October 24, 2017, at which Plaintiff failed to appear; the Court called her and she advised she would not appear due to illness. (Id.) The Court entered an Order compelling Plaintiff to respond to discovery.[4] (Id. at 1-2.) Plaintiff failed to comply with the Court's Order. (Id. at 2.) Defendant argues that the Court explicitly advised Plaintiff in both the telephone call and its Order that she was required to answer Defendant's discovery requests and that dismissal of the case was a possible sanction if she failed to comply with the Court's Order. (Id.)

         Defendant contends it is prejudiced by Plaintiff's failure to respond to its discovery requests because it cannot prepare for trial when it is unaware of what evidence Plaintiff intends to put forth. (Id. at 3.) Because Plaintiff failed to answer Defendant's initial discovery requests, failed to appear at the hearing concerning Defendant's Motion, and now failed to comply with the Court's Order, the only appropriate sanction here is dismissal. (Id.)


         Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure allow a Court to dismiss an action as a sanction for a party's failure to obey a discovery order. In deciding a motion to dismiss under Rule 37(b)(2)(A), the district court should consider whether: (1) the noncomplying party acted in bad faith; (2) the amount of prejudice her noncompliance caused her adversary, which necessarily includes an inquiry into the materiality of the evidence she failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.


         As an initial matter, Plaintiff proceeded pro se, and in order to accommodate Plaintiff's work schedule, the undersigned specifically scheduled the hearing on Defendant's Motion at 3:30 p.m. that Plaintiff had indicated would be helpful during the undersigned's telephone call to her before the hearing.[5] The undersigned noted that her Complaint appeared to have been ghostwritten by a lawyer, and Plaintiff confirmed that the Complaint was drafted by a California law firm, but she could not recall the name of it.[6] Plaintiff also confessed to the undersigned that she did not understand the allegations contained in her Complaint, to which the undersigned emphasized to her the importance of appearing at the hearing in order to determine what she and Defendant could reasonably resolve.

         Because Plaintiff has failed to respond in any way to Defendant's requests or comply with this Court's Order, despite the Court having made reasonable accommodations to assist this pro se Plaintiff, dismissal under Rule 37 is appropriate.

         PROPOSAL AND ...

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