Hamm v. Bank of America NA
| Jeffery S Hamm |
| Bank of America NA |
| 4:2021cv04038 |
| March 9, 2021 |
| US District Court for the Central District of Illinois |
| Sara Darrow |
| Jonathan E Hawley |
| Consumer Credit |
| 15 U.S.C. ยง 1681 |
| Plaintiff |
Docket Report
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| Document Text |
|---|
| Filing 10 NOTICE Bank of America N.A. Corporate Disclosure Statement (Groh, Susan) |
| Filing 9 First MOTION for Extension of Time to File Answer re #7 Amended Complaint UNOPPOSED by Defendant Bank of America NA. Responses due by 5/21/2021 (Groh, Susan) |
| Filing 8 NOTICE of Appearance of Attorney by Susan Groh on behalf of Bank of America NA (Groh, Susan) |
| Filing 7 AMENDED COMPLAINT (First) against Bank of America NA, filed by Jeffery S Hamm.(Hatzidimitriadis, Taxiarchis) |
TEXT ORDER entered by Chief Judge Sara Darrow on April 27, 2021. Plaintiff Jeffery S. Hamm filed a #6 notice of voluntary dismissal of his third claim against Defendant Bank of America, N.A. without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). But as the Seventh Circuit has explained, "Rule 41(a) should be limited to dismissal of an entire action." E.g., Taylor v. Brown, 787 F.3d 851, 857 (7th Cir. 2015). This #6 notice, which seeks to dismiss only one of Hamm's three claims against Bank of America, is therefore ineffective. The Seventh Circuit has also explained that faced with an improper partial Rule 41(a) stipulation, a court should offer a complainant the opportunity to amend its pleading under Rule 15(a), which allows a complainant to amend its pleading either as of right in some situations, Fed. R. Civ. P. 15(a)(1), or by court order in others, Fed. R. Civ. P. 15(a)(2). See Taylor, 787 F.3d at 858. The Court shall follow the Seventh Circuit's lead and give Hamm the opportunity to amend his #1 complaint to drop his third claim. Technically, however, this opportunity is not the Court's to give, as Hamm may, at least for the time being, amend his #1 complaint as of right. Indeed, even though twenty-one days have passed since the #1 complaint was effectively served via the filing of Bank of America's #5 executed waiver of service, see Fed. R. Civ. P. 4(d)(4) (stating when a waiver is filed, "these rules apply as if a summons and complaint had been served at the time of filing the waiver"), since Bank of America has not yet filed a responsive pleading or a motion under Rule 12(b), (e), or (f), see Fed. R. Civ. P. 15(a)(1)(B), Hamm still has time to amend his #1 complaint on his own, see Swanigan v. City of Chicago, 775 F.3d 953, 963 (7th Cir. 2015) ("Because no responsive pleading or motion to dismiss had been filed, the 21-day clock under Rule 15(a)(1)(B) never started and [the plaintiff] retained the right to amend his complaint."); see also John Doe #1 v. Syracuse Univ., 335 F.R.D. 356, 359 (N.D.N.Y. 2020) (holding when a responsive pleading is required, "there is no 'time gap' during which a party cannot amend as a matter of course when no responsive pleading or motion under 12(b), (e), or (f) has been filed"). (SV)
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| Filing 6 NOTICE of Voluntary Dismissal of Count III re #1 Complaint (Attachments: #1 Text of Proposed Order)(Hatzidimitriadis, Taxiarchis) |
| Filing 5 WAIVER OF SERVICE Returned Executed by Jeffery S Hamm. Bank of America NA waiver sent on 3/9/2021, answer due 5/10/2021. (Hatzidimitriadis, Taxiarchis) |
| Filing 4 Summons Issued as to Bank of America NA and returned to Counsel to effect service. (RES) |
| Filing 3 NOTICE of Appearance of Attorney by David Scott Klain on behalf of Jeffery S Hamm (Klain, David) |
| Filing 2 NOTICE of Appearance of Attorney by Taxiarchis Hatzidimitriadis on behalf of Jeffery S Hamm (Hatzidimitriadis, Taxiarchis) |
| Filing 1 COMPLAINT against Bank of America NA ( Filing fee $ 402 receipt number 0753-3607765.), filed by Jeffery S Hamm. (Attachments: #1 Civil Cover Sheet, #2 Proposed Summons)(Hatzidimitriadis, Taxiarchis) |
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| Plaintiff: Jeffery S Hamm | |
| Represented By: | David Scott Klain |
| Represented By: | Taxiarchis Hatzidimitriadis |
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| Defendant: Bank of America NA | |
| Represented By: | Susan Groh |
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