United States District Court, D. Arizona
ORDER
Dominic W. Lanza United Slates District Judge.
On
January 17, 2019, Defendants The Bank of New York Mellon
f/k/a The Bank of New York as successor in interest to JP
Morgan Chase Bank, N.A. solely in its capacity as Trustee for
Structured Asset Mortgage Investments II Trust 2006-AR8
Mortgage Pass-Through Certificates Series 2006-AR8
(erroneously named as “Bank of New York Mellon f/k/a
Bank of New York as Successor in Interest to JP Morgan Chase
as Trustee for the Structured Asset Mortgage Investments II
Trust 2006-AR8 Mortgage Pass-Through Certificates
2006-AR8”) (hereinafter “BoNYM”) and
Structured Asset Mortgage Investments II, Inc. (erroneously
named as “Structured Asset Management Mortgage
Investments II, LLC”) (hereinafter “SAMI”)
filed a Motion to Dismiss Plaintiff's Amended Complaint
(Doc. 7).
On
February 14, 2019, the parties filed a stipulation indicating
their agreement that Plaintiff could file a second amended
complaint. (Doc. 20.) On the same day, Plaintiff filed a
“Response to Motion to Dismiss, Alternative Motion
Pursuant to Rule 56(d), and Cross Motion for Summary
Judgment” (Doc. 16) and a separate Statement of Facts
(Doc.17), as well as a motion to convert BoNYM and SAMI's
motion to dismiss into a motion for summary judgment (Doc.
18).
The
following day, the stipulation to allow Plaintiff to file a
second amended complaint, which the Court construed as a
stipulated motion, was denied as moot on procedural
grounds.[1] (Doc. 21.) A few days later, Plaintiff
filed a “Notice of Filing Second Amended Complaint with
Written Consent of Defendants.” (Doc. 24.) In response,
the Clerk of Court issued a deficiency notice informing
Plaintiff that, once again, he had failed to comply with
LRCiv 15.1(b) and directing him to file a clean version of
the second amended complaint within one day. (Doc. 25.) On
February 21, 2019, Plaintiff filed his Second Amended
Complaint (Doc. 26) and verification thereof (Doc. 27).
On
February 26, 2019, BoNYM and SAMI filed a motion asking the
Court to clarify “the status of BoNYM and SAMI's
motion to dismiss (ECF No. 7) as well as plaintiff Steven
Nickolas' objection to BoNYM and SAMI's request for
judicial notice filed in connection with their motion to
dismiss (ECF Nos. 7, 19), motion for summary judgment (ECF
Nos. 16, 17), and motion to treat BoNYM and SAMI's motion
to dismiss as a motion for summary judgment (ECF No.
18).” (Doc. 28 at 2.) BoNYM and SAMI express confusion
as to why Plaintiff “filed his various oppositions and
motions, but then filed an amended complaint, ” as they
had consented to the filing of a second amended complaint and
“understood the second amended complaint would moot
their motion to dismiss the first amended complaint.”
(Id. at 3.) On March 6, 2019, BoNYM and SAMI filed a
Motion to Dismiss Plaintiff's Second Amended Complaint.
(Doc. 29.)
The
Court shares BoNYM and SAMI's confusion as to why
Plaintiff would seek and obtain BoNYM and SAMI's consent
to file a Second Amended Complaint and attempt to file it,
while simultaneously filing a response to a motion to dismiss
the First Amended Complaint, as well as a motion to construe
said motion as a motion for summary judgment. Plaintiff
finally succeeded in filing his Second Amended Complaint on
February 21, 2019, which rendered the First Amended Complaint
a nullity and rendered the motion to dismiss it (Doc. 7)
moot. Ramirez v. Cty. of San Bernardino, 806 F.3d
1002, 1008 (9th Cir. 2015).
Thus,
to clarify the status of this case, BoNYM and SAMI's
Motion to Dismiss the First Amended Complaint (Doc. 7) is
deemed moot, and therefore Plaintiff's response to that
motion (Doc. 16) is also moot, as is the motion to treat that
motion as a motion for summary judgment (Doc. 18). To the
extent Plaintiff's response also purports to be a
cross-motion for summary judgment (Doc. 16), it was filed
before the Second Amended Complaint was successfully filed,
so the Court will deem that motion moot as well. This is to
Plaintiff's benefit. No. party shall be permitted to file
more than one motion for summary judgment without leave of
the Court-and this moot one will not count against Plaintiff.
This Order grants the motion for clarification (Doc. 28), so
the only motion that remains pending in this case is BoNYM
and SAMI's Motion to Dismiss the Second Amended Complaint
(Doc. 29).
In a
case like this one, when all Defendants file motions to
dismiss instead of answers, the Court typically waits until
any such motions are resolved before setting a case
management conference and issuing a case management order.
However, because it appears that at least one party in this
lawsuit may choose to file its motion for summary judgment
much earlier than normal, the Court will issue the portion of
its standard order regarding summary judgment motions now,
albeit without setting a dispositive motions deadline, which
would presently be premature.
Accordingly,
IT IS ORDERED that BoNYM and SAMI's
motion for clarification (Doc. 28) is
granted, as discussed above.
IT
IS FURTHER ORDERED that BoNYM and SAMI's motion
to dismiss Plaintiff's First Amended Complaint (Doc. 7)
is denied as moot, Plaintiff's response
to that motion and cross-motion (Doc. 16) is also
denied as moot, and Plaintiff's motion
to treat BoNYM and SAMI's motion to dismiss the First
Amended Complaint as a motion for summary judgment (Doc. 18)
is likewise denied as moot.
IT
IS FURTHER ORDERED as follows:
No
party shall file more than one motion for summary judgment
under Rule 56 of the Federal Rules of Civil Procedure without
leave of the Court.
Local
Rule of Civil Procedure 56.1 is suspended, except for
subsection (d). The Court will decide summary judgment
motions under Federal Rule of Civil Procedure 56 only. In
other words, the parties may not file separate statements of
facts or separate controverting statements of facts, and
instead must include all facts in the motion, response, or
reply itself. All evidence to support a motion or response
that is not already part of the record must be attached to
the motion or response itself. The evidence may include only
relevant excerpts rather than full documents. No. evidence
may be submitted with a reply. Because no separate
controverting statement of facts will be permitted, the
responding party must carefully address all material facts
raised in the motion. Likewise, the reply must carefully
address all material facts raised in the response. Any fact
that is ignored may be deemed uncontested. Procedurally,
immediately following the motion should be a
numerical table of contents for the exhibits. The
table of contents shall include only a title for each
exhibit, not a description. Following the table of contents
should be each exhibit (unless the document is already part
of the record), numbered individually. Immediately
following the response to the motion should be an
alphabetical table of contents (again, the table of
contents shall include only a title for each exhibit, not a
description). Following the table of contents should be each
exhibit (unless the document is already part of the record),
labeled alphabetically. By way of example, citations
to exhibits attached to the motion would be “(Ex. 1 at
7)” and citations to exhibits attached to the response
would be “(Ex. D at 3).” Citations to documents
that are already part of the record shall reference the
docket number where the document can be found and include a
pin cite to the relevant page-for example, “(Doc. 15 at
4).”
The
parties shall not notice oral argument on any motion.
Instead, a party desiring oral argument shall place the words
“Oral Argument Requested” immediately below the
title of the motion pursuant to Local Rule of Civil Procedure
7.2(f). The Court may decline … the request and decide
the motion without holding oral argument. If the request is
granted, the Court will ...