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Steele v. Deutsche Bank National Trust Co.

United States District Court, D. New Hampshire

September 23, 2014

Walter Steele,
v.
Deutsche Bank National Trust Company, Trustee.

ORDER OPININON NO. 2014 DNH 200.

JOSEPH A. DiCLERICO, Jr., District Judge.

Walter Steele brought an action in state court against Deutsche Bank National Trust Company to enjoin the foreclosure sale on his home and seeking damages on claims of breach of contract, negligent misrepresentation, and breach of the covenant of good faith. On August 1, 2014, the state court granted Steele's ex parte petition to temporarily enjoin the foreclosure sale, and a hearing was scheduled for August 11, 2014. Deutsche Bank removed the case to this court on August 8, 2014, and on the same date filed a notice in this court of the pending hearing in state court.[1]

On August 28, 2014, Deutsche Bank filed a document titled "Opposition to Plaintiff's Verified Ex Parte Petition to Enjoin Foreclosure Sale and Complaint for Damages and Request for the Opportunity to be Heard."[2] In the opposition, Deutsche Bank asked the court to deny Steele's petition to enjoin the foreclosure sale and to "dissolve any remaining temporary restraining order that may currently exist in this matter."[3] Deutsche Bank also asked the court to schedule a hearing on the petition for a temporary restraining order. Steele did not respond to the "Opposition." Deutsche Bank has not filed an answer or a motion to dismiss.

I. Opposition

The Federal Rules of Civil Procedure govern a case removed from state court. Fed.R.Civ.P. 81(a). Defenses to the complaint are to be asserted in a responsive pleading or, if applicable, in a motion to dismiss under Federal Rule of Civil Procedure 12(b). In addition, a request for relief or any action by the court must be filed as a motion.[4] See LR 7.1(a). Therefore, because Deutsche Bank's "Opposition" is not in compliance with the Federal Rules of Civil Procedure and the Local Rules in this district, it cannot be considered.[5]

II. Default

"A defendant who did not answer before removal must answer or present other defenses or objections under these rules within the longest" of three periods provided in Rule 81(c)(2). The three periods are twenty-one days after receiving a copy of the complaint or petition, twenty-one days after being served with the summons, and seven days after the notice of removal was filed. Fed.R.Civ.P. 81(c)(2). When a defendant does not plead or defend within the time allowed, default shall be entered. Fed.R.Civ.P. 55(a).

According to the state record, Deutsche Bank was served with the summons in this case on August 4, 2014, which would make the deadline for Deutsche Bank's answer August 25, 2014. The notice of removal was filed on August 8, 2014, which would make the deadline August 15, 2014. Therefore, the longer period is calculated from the date the summons was served, making the deadline August 25, 2014.

Deutsche Bank did not file an answer or a motion under Federal Rule of Civil Procedure 12(b) before August 25, 2014. Therefore, Deutsche Bank is in default.

Conclusion

For the foregoing reasons, the defendant's "Opposition to Plaintiff's Verified Ex Parte Petition to Enjoin Foreclosure Sale and Complaint for Damages and Request for the Opportunity to be Heard, " docketed as "Objection to 1 Notice of Removal, " (document no. 5) is struck.

The clerk of court shall enter the ...


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