Makell v. Fedchoice Federal Credit Union

• Court: District Court, District of Columbia
• Decided: December 23, 2019
• Docket: Civil Action No. 2019-2364
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

STACEY A. MAKELL,

Plaintiff,

v. Civil Action No. 19-2364 (TJK) FEDCHOICE FEDERAL CREDIT UNION et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Stacey Makell, proceeding pro se and in forma pauperis, brought this action in

August 2019 alleging a variety of claims related to her mortgage or the underlying property.

ECF No. 1. Defendants subsequently moved to dismiss the complaint in several waves.

Defendant FedChoice Federal Credit Union first moved alone. ECF No. 6. The following day, it

jointly filed with Defendant CU Members Mortgage Colonial Savings, F.A., an additional

motion to dismiss. ECF No. 9. At that point, the Court issued an order advising Plaintiff of her

obligations under the Federal Rules of Civil Procedure and the local rules of this Court to

respond to the motion. ECF No. 11 (“Fox Order I”). The Court specifically warned Plaintiff that

if she did not respond to the motions by November 25, 2019, the Court could treat the motions as

conceded. Id. However, despite the Court’s warning, Plaintiff has yet to file an opposition to

Defendant’s motion, nor has she requested additional time to do so. Later, the third defendant,

Transportation Federal Credit Union, also moved to dismiss. ECF No. 14. The Court issued

another order advising Plaintiff of her obligations to respond to the motion. ECF No. 11 (“Fox

Order II”). The Court again warned her that if she did not respond to the motion—this time by

December 19, 2019—the Court could treat the motion as conceded. Id. Again, despite the Court’s warning, Plaintiff has failed to file an opposition to Defendant’s motion, nor has she

requested additional time to do so.

As the Court advised Plaintiff in the two Fox Orders, under Local Civil Rule 7(b), “the

Court may treat . . . as conceded” a motion that the opposing party fails to respond to within 14

days. LCvR 7(b). Fox Orders I & II. In Cohen v. Board of Trustees of the University of the

District of Columbia, the D.C. Circuit observed “tension between Local Rule 7(b) and Federal

Rule 12(b)(6);” however, it nevertheless “reluctantly affirm[ed] the court’s decision to grant the

motion to dismiss” albeit holding that doing so with prejudice was “an abuse of discretion.” 819

F.3d 476, 480, 481 (D.C. Cir. 2016). The Cohen court also noted that it “[had] yet to deem a

‘straightforward application of Local Rule 7(b)’ an abuse of discretion.” Id. at 480 (quoting Fox

v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)); see also Washington All. of Tech.

Workers v. United States Dep’t of Homeland Sec., 892 F.3d 332, 344 (D.C. Cir. 2018) (“We have

endorsed dismissing a complaint pursuant to Local Rule 7(b) if the plaintiff failed to timely file a

response in opposition to the defendant’s FRCP 12(b)(6) motion to dismiss.”). Additionally, in

Jordan v. Ormond, the D.C. Circuit held that “[t]he district court did not abuse its discretion in

dismissing appellant’s complaint pursuant to [LCvR] 7(b)” where a pro se plaintiff had missed

the court’s deadline by 25 days. No. 15-7151, 2016 WL 4098823, at *1 (D.C. Cir. July 22,

2016) (per curiam); Jordan v. Ormond, No. 15-1536 (RMC), 2015 WL 13055329 (D.D.C. Oct.

6, 2015) (Memorandum and Order). Moreover, other courts in this District have granted as

conceded motions to dismiss in “straightforward” cases where a plaintiff simply fails to respond

despite having been warned of the consequences. See, e.g., Voacolo v. Fed. Nat’l Mortg. Ass’n,

224 F. Supp. 3d 39, 42 (D.D.C. 2016).

2 The Court finds the instant case to be similarly straightforward. 74 days have passed

since the first two motions to dismiss were filed, and 47 days have passed since the third was

filed. Despite being warned of the consequences, Plaintiff has not responded to Defendants’

motions. Therefore, in a separate order, the Court will grant Defendants’ motions to dismiss as

conceded and dismiss the complaint without prejudice.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: December 23, 2019