Makell v. Fedchoice Federal Credit Union

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).
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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
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