Objection to 37 Supplemental Motion to Quash Motion To Dismiss Bank — No. 1:21-cv-00748 (Dkt. 40)

Summary

An objection filed November 16, 2021 as Document 40 by defendants Bank of America, N.A. and Megan Scholz to the plaintiff's Motion to Quash Defendants' Motion to Dismiss (Doc. #37) 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 argue that the plaintiff is mistaken about service, citing Fed. R. Civ. P. 5(b) and the court's Supplemental Rules for Electronic Case Filing. They state that the court granted the plaintiff's motion to participate in electronic filing on September 7, 2021 and that the motion to dismiss (Doc. 33) was served through the ECF system. The objection asks the court to deny the motion to quash and is signed /s/ Thomas J. Pappas.

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Cite this document

“Objection to 37 Supplemental Motion to Quash Motion To Dismiss Bank — No. 1:21-cv-00748 (Dkt. 40).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/objection-to-37-supplemental-motion-to-quash-motion-to-dismiss-bank-no-0b0e97f968/, SHA-256 352b82b9ac26cedc13fa75e3380f48c6b7adb77361bb98d9e227c8c77596e96c.

Full text

Case 1:21-cv-00748-SM Document 40 Filed 11/16/21 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 OBJECTION TO PLAINTIFF’S MOTION TO QUASH
DEFENDANTS’ MOTION TO DISMISS

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

and through their attorneys, Primmer Piper Eggleston & Cramer PC, and, object to the Plaintiff’s

Motion to Quash Defendants’ Motion to Dismiss (Doc. #37)2 (the “Motion”) as follows:

A. Plaintiff is Mistaken About Service of Pleadings.

1. 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.

2. 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.

1
Incorrectly named in Plaintiff’s Complaint as “Bank of America.”
2
Doc. 37 replaced Doc. 35. See NOTICE of ECF Filing Error re: [35] Supplemental MOTION to Dismiss
dated November 12, 2021.

1
Case 1:21-cv-00748-SM Document 40 Filed 11/16/21 Page 2 of 4

3. 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.

4. 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.

5. 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).”

6. 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.

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

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

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

Electronic Filing.

2
Case 1:21-cv-00748-SM Document 40 Filed 11/16/21 Page 3 of 4

9. 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.”

10. 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.

11. Based upon Plaintiff’s pleadings it is clear that Plaintiff has received all filings by

Defendants, which constitutes proof of service under AP 2.8.

12. Accordingly, Plaintiff’s Motion to Quash Defendants’ Motion to Dismiss should

be denied.

WHEREFORE, Defendants respectfully request that the Court:

A. Deny Plaintiff’s Motion to Quash Defendants’ Motion to Dismiss;

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

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: November16, 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

3
Case 1:21-cv-00748-SM Document 40 Filed 11/16/21 Page 4 of 4

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANTS BANK OF AMERICA, N.A.
AND MEGAN SCHOLZ’S OBJECTION TO PLAINTIFF’S MOTION TO QUASH
DEFENDANTS’ MOTION TO DISMISS has this day been forwarded via the Court’s Electronic
Case Filing System to:
Natasha Athens
Natasha4NHGov@protonmail.com

Dated: November 16, 2021 By: /s/ Thomas J. Pappas
Thomas J. Pappas, Esq., (N.H. Bar No. 4111)

4
5066619.1

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Our copy: 40-objection-to-37-supplemental-motion-to-quash-motion-to-dismi.pdf
Original: archive.org