Jacobs v. Wells Fargo Bank, NA ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION MARQUII JACOBS, Plaintiff, CIVIL ACTION NO.: 4:19-cv-186 v. WELLS FARGO BANK, NA; and SHAPIRO PENDERGAST & HASTY LLP, Defendants. O RDE R This matter is before the Court on Defendant Wells Fargo Bank, NA’s Motion to Dismiss. (Doc. 6.) A motion to dismiss is dispositive in nature, meaning that granting a motion to dismiss could result in the dismissal of individual claims or an entire action. Consequently, the Court is reluctant to rule on the Motion to Dismiss without providing Plaintiff an opportunity to respond or advising Plaintiff of the consequences for failing to respond.1 Accordingly, the Court ORDERS Plaintiff to file a response either opposing or indicating her lack of opposition to Defendant’s Motion to Dismiss within twenty-eight (28) days of the date of this Order. If Plaintiff fails to file a timely response, the Court will presume that Plaintiff does not oppose the Motion and may dismiss individual claims or the entire action. See Local R. 7.5 (“Failure to respond . . . shall indicate that there is no opposition to a motion.”). 1 Granting a motion to dismiss without affording a plaintiff either notice or an opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336–37 (11th Cir. 2011); see also Neitzke v. Williams, 490 U.S. 319, 329–30 (1989) (A notice of a motion to dismiss “alert[s plaintiff] to the legal theory underlying the defendant’s challenge” and enables him to meaningfully respond “by opposing the motion to dismiss on legal grounds or by clarifying his factual allegations [in an amended complaint] so as to conform with the requirements of a valid legal cause of action.”). Plaintiff may also choose to amend her Complaint to cure any deficiencies noted in the Motion to Dismiss. See Fed. R. Civ. P. 15(a)(1)(B). If Plaintiff decides to file an amended complaint, she must do so within twenty-eight (28) days of the date of this Order. To ensure that Plaintiff's response is made with fair notice of the requirements of the Federal Rules of Civil Procedure regarding motions to amend, motions to dismiss, generally, and motions to dismiss for failure to state a claim upon which relief may be granted, specifically, the Court DIRECTS the Clerk of Court to mail to Plaintiff at her address of record a copy of the Motion to Dismiss, (doc. 6), a copy of this Order, and a copy of Federal Rules of Civil Procedure 12, 15, and 41. This case is ADMINISTRATIVELY STAYED pending Plaintiff's filing of a response or an amended complaint. This shall not affect the substantive rights of the parties. SO ORDERED, this 24th day of March, 2020. f S Lye R. STAN BAKER UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA