Surreply — Athens v. Bank of America (D.N.H.)

Summary

A surreply filed November 19, 2021 as Document 47 by defendants Bank of America, N.A. and Megan Scholz to the plaintiff's reply (Doc. #44) on her Request for Immediate Sealing of Exhibits (Doc. #38) in Natasha Athens d/b/a Favorite Things v. Bank of America and Megan Scholz, Civil Action No. 1:21-cv-00748-SM, in the U.S. District Court for the District of New Hampshire. The defendants respond to the plaintiff's argument that a default judgment should enter, stating that service through the court's electronic filing system is proper under Fed. R. Civ. P. 5(b) and the court's electronic filing procedures. They state that the motion to dismiss (Doc. 33) was timely filed and served and that there is no basis for default judgment. They again assent to sealing the exhibits; the surreply is signed /s/ Thomas J. Pappas.

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Cite this document

“Surreply — Athens v. Bank of America (D.N.H.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-21-cv-00748-dkt-47-0bc113d6d9/, SHA-256 80f190d4bea3eb3c51783606fff1bfa7c0b3952a2f0b1ef0641c562332c56b68.

Full text

Case 1:21-cv-00748-SM Document 47 Filed 11/19/21 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

)
NATASHA ATHENS d/b/a Favorite Things, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:21-cv-00748-SM
)
BANK OF AMERICA and MEGAN SCHOLZ, )
)
Defendants. )
)

DEFENDANTS BANK OF AMERICA, N.A. AND MEGAN SCHOLZ’S
SURREPLY TO PLAINTIFF’S RESPONSE (REPLY) TO DEFENDANTS’ RESPONSE
TO PLAINTIFF’S REQUEST FOR IMMEDIATE SEALING OF EXHIBITS

NOW COME defendants Bank of America, N.A.1 and Megan Scholz (“Defendants”), by

and through their attorneys, Primmer Piper Eggleston & Cramer PC, and hereby respectfully files

this surreply to Plaintiff’s Response (Reply) (Doc. #44) to Defendants’ Response (Doc. #41) to

Plaintiff’s Request for Immediate Sealing of Exhibits (Doc. #38).

A. Defendants’ Timely Responded to the Complaint.

1. In Plaintiff’s Request for Immediate Sealing of Exhibits (Doc. #38), Plaintiff

complained about the redaction of personal identifiers.

2. In Plaintiff’s Reply (Doc. #44), Plaintiff now argues that Defendants cannot

respond to her request for immediate sealing of documents because the Court should enter a default

judgment against Defendants for failure to respond to Plaintiff’s Complaint. It appears that

Plaintiff believes that service of pleadings through the Court’s electronic filing system does not

1
Incorrectly named in Plaintiff’s Complaint as “Bank of America.”

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Case 1:21-cv-00748-SM Document 47 Filed 11/19/21 Page 2 of 4

constitute service under the Federal Rules of Civil Procedure, and that Defendants must serve all

pleadings directly to Plaintiff (by hand or perhaps by mail). Plaintiff again is mistaken.

3. Fed. R. Civ. P. 5(b) authorizes the Courts to establish practices and procedures for

the filing, signing, service, maintenance, and verification of documents by electronic means.

4. Under Fed. R. Civ. P. 5(d)(3), the clerk’s office will accept papers filed, signed, or

verified by electronic means that are consistent with technical standards that the Judicial

Conference of the United States establishes, and that comply with procedures for electronic filing

established by the court.

5. The U.S. District Court for the District of New Hampshire adopted Supplemental

Rules for Electronic Case Filing as Administrative Procedures June 1, 2004 Incorporated as

Supplement to Local Rules December 1, 2011, as amended Through December 1, 2019.

6. AP 2.2 (Consequences of Electronic Filing) provides as follows:

(a) Filing Defined. The electronic filing of a document through ECF consistent
with the ECF Administrative Procedures and rules of court, together with
the transmission of a Notice of Electronic Filing from the court’s ECF
system, constitutes filing for all purposes of the Federal Rules of
Civil/Criminal Procedure and local rules of this court.

(b) Confirmation of Court Filing. A document electronically filed through the
court’s ECF transmission facilities shall be deemed filed on the date and
time stated on the Notice of Electronic Filing received from the court.

(c) Official Record. Except as provided herein, the clerk’s office will not
maintain a paper court file in any ECF case. The official court record shall
be the electronic file maintained on the court’s servers together with any
paper documents filed in accordance with these procedures.

7. AP 2.8(a) (Service of Electronically Filed Documents) provides that “[t]he ECF

system generated Notice of Electronic Filing constitutes proof of service upon a Filing User in

accordance with the Fed. R. Civ. P. 5(d).”

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Case 1:21-cv-00748-SM Document 47 Filed 11/19/21 Page 3 of 4

8. AP 2.1(d) (Pro Se Litigants) provides that:

A non-incarcerated pro se litigant in a pending case may apply to the court for
permission to file documents electronically using ECF on a form prescribed by the
clerk’s office. If the court initially grants a pro se litigant permission to file
documents electronically, that permission is limited to the case specified and the
court may withdraw that permission at any time during the pendency of a case.

9. On August 30, 2021, Plaintiff signed and filed with the Court her “Pro Se Motion

to Participate in Electronic Filing.” Doc. #3.

10. On September 7, 2021, the Court granted Plaintiff’s Motion to Participate in

Electronic Filing.

11. In her Motion to Participate in Electronic Filing, Plaintiff stated that “I understand

that hard copies will no longer be issued by the court or opposing counsel.”

12. Pursuant to the Court’s Supplemental Rules for Electronic Case Filing, the

undersigned filed his appearance for Defendants (Doc. 19) and timely filed Defendants’ Motion

to Dismiss (Doc. 33) in response to Plaintiff’s Complaint, serving Plaintiff through the Court’s

Electronic Filing system, which utilizes the e-mail address plaintiff provided to the Court.

13. Accordingly, there is no basis to enter default judgment against Defendants.

B. Assent to Sealing the Exhibits.

14. As previously indicated, although Plaintiff’s personal identifiers within the exhibits

filed in support of Defendants’ motion to dismiss were properly redacted, and that Defendants

timely responded to Plaintiff’s Complaint, Defendants nevertheless assent to Plaintiff’s request to

seal the exhibits.

WHEREFORE, Defendants respectfully request that the Court:

A. Grant the Motion to the limited extent that the exhibits are placed under seal;

B. Deny any other request made or inferred by the Motion; and

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Case 1:21-cv-00748-SM Document 47 Filed 11/19/21 Page 4 of 4

C. Grant such other relief as the Court deems just.

Respectfully submitted,

BANK OF AMERICA, N.A. and MEGAN SCHOLZ

By their attorneys,

PRIMMER PIPER EGGLESTON & CRAMER PC

Dated: November 19, 2021 By: /s/ Thomas J. Pappas
Thomas J. Pappas, Esq., N.H. Bar No. 4111
P.O. Box 3600
Manchester, NH 03105-3600
(603) 626-3300
tpappas@primmer.com

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANTS BANK OF AMERICA, N.A.
AND MEGAN SCHOLZ’S SURREPLY TO PLAINTIFF’S RESPONSE (REPLY)
DEFENDANTS’ RESPONSE TO PLAINTIFF’S REQUEST FOR IMMEDIATE SEALING OF
EXHIBITS REQUEST FOR IMMEDIATE SEALING OF EXHIBITS has this day been
forwarded via the Court’s Electronic Case Filing System to:
Natasha Athens
Natasha4NHGov@protonmail.com

Dated: November 19, 2021 By: /s/ Thomas J. Pappas
Thomas J. Pappas, Esq., (N.H. Bar No. 4111)

4
5074322.1

File and source

File: 47-surreply-to-reply-to-38-emergency-motion-to-seal-document-at.pdf
Size: 30,689 bytes
SHA-256: 80f190d4bea3eb3c51783606fff1bfa7c0b3952a2f0b1ef0641c562332c56b68
Our copy: 47-surreply-to-reply-to-38-emergency-motion-to-seal-document-at.pdf
Original: archive.org