Natasha Athens v. Bank of America — Reply Brief in Support of Motion to Dismiss (Document 42)

Summary

A reply brief filed November 16, 2021 as Document 42 by defendants Bank of America, N.A. and Megan Scholz in support of their November 9, 2021 motion to dismiss (Doc. No. 33) 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. It responds to the plaintiff's November 11, 2021 objection (Doc. No. 34), arguing that its sole argument, improper service, is baseless because filings were served via CM/ECF. The defendants state that the objection does not address their arguments that the CARES Act creates no private right of action and that the claims are inadequately pled under Federal Rules of Civil Procedure 12(b)(6) and 9(b). The reply asks for dismissal in full and is signed /s/ Thomas J. Pappas.

Summary drafted by a model from the text of the original file linked on this page and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

             Case 1:21-cv-00748-SM Document 42 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
           REPLY BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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

their attorneys, Primmer Piper Eggleston & Cramer PC, respectfully submit this reply brief in

support of their November 9, 2021 Motion to Dismiss the September 3, 2021 Complaint (the

“Complaint”), filed by Natasha Athens d/b/a Favorite Things (“Plaintiff”), appearing pro se. Doc.

No. 33. Plaintiff filed an Objection to Defendants’ Motion on November 11, 2021. Doc. No. 34

(“Objection”). Plaintiff’s Objection fails to address any of the legal arguments set forth in

Defendants’ Motion to Dismiss. The sole argument it does advance—that Defendants’ motion

was not properly served on Plaintiff—is baseless, as set forth more fully in Defendants’ Objection

to Plaintiff’s Motion to Quash, which is filed concurrently herewith (Doc. No. 40). The Court

should, therefore, grant Defendants’ Motion to dismiss in its entirety.

A.        Plaintiff Is Mistaken About Service of Pleadings.

          Plaintiff contends that Defendants’ Motion to Dismiss fails because it was not properly

served on Plaintiff. This is the exact same argument Plaintiff makes in her Motion to Quash


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

                                                     1
          Case 1:21-cv-00748-SM Document 42 Filed 11/16/21 Page 2 of 4




Defendants’ Motion to Dismiss. ECF No. 37.2 As discussed more fully in Defendants’ Objection

to that motion, filed concurrently herewith, Plaintiff has been properly served with all filings via

CM/ECF in accordance with U.S. District Court for the District of New Hampshire rules. See

Doc. No. 40.

B.     Plaintiff Fails to Dispute Any of the Legal Arguments in Defendants’ Memorandum
       in Support of Their Motion to Dismiss.

       Plaintiff’s Objection fails to respond to any of the legal arguments set forth in Defendants’

Memorandum in Support of their Motion to Dismiss.

       Specifically, the Objection fails to explain why Plaintiff’s central contention—that

Defendants improperly denied her PPP loan forgiveness application—is actionable.                 As

Defendants explained in their Motion to Dismiss, Plaintiff’s loan forgiveness application was

denied because the documents she submitted in support of her forgiveness request—which are

incorporated by reference into Plaintiff’s complaint—confirmed she was not entitled to loan

forgiveness pursuant to the clear and unambiguous rules promulgated by the Small Business

Administration (“SBA”). In addition, the Coronavirus Aid, Relief, and Economic Security

(“CARES”) Act, which established the PPP, does not create a private right of action. Nor does

Plaintiff address Defendants’ citations to the CARES Act and its accompanying SBA regulations,

which clearly and unequivocally state that PPP loan forgiveness is not guaranteed and any funds

not eligible for forgiveness must be repaid.

       Plaintiff also fails to address Defendants’ assertions that her claims are inadequately pled.

Defendants argued that Plaintiff’s fraud claim fails to state a claim on which relief can be granted

with the specificity required under Federal Rules of Civil Procedure 12(b)(6) and 9(b) because


2
 Doc. 37 replaced Doc. 35. See NOTICE of ECF Filing Error re: [35] Supplemental MOTION to Dismiss
dated November 12, 2021.

                                                 2
          Case 1:21-cv-00748-SM Document 42 Filed 11/16/21 Page 3 of 4




Plaintiff fails to identify any fraudulent statement Defendants allegedly made, let alone the who,

what, where, and when regarding any such misrepresentation. Plaintiff’s breach of contract claim

fails to specify which contract—and the specific provision of the contract—Defendants allegedly

breached. And Plaintiff’s intentional infliction of emotional distress claim lacks any of the

requisite detail necessary to satisfy the high bar of asserting such a claim.

       Because Plaintiff failed to respond to any of these legal arguments, Plaintiff’s Objection

should be disregarded and Defendants’ Motion to Dismiss granted.

C.     Conclusion

       For the foregoing reasons, the reasons set forth in Defendants’ Memorandum in Support of

their Motion to Dismiss, and the reasons set forth in the concurrently filed Defendants’ Objection

to Plaintiff’s Motion to Quash Defendants’ Motion to Dismiss, the Court should grant Defendants’

motion and dismiss Plaintiff’s Complaint in its entirety pursuant to Federal Rules of Civil

Procedure 12(b)(6) and 9(b).


                                      Respectfully submitted,

                                      BANK OF AMERICA, N.A. and MEGAN SCHOLZ

                                      By their attorneys,

                                      PRIMMER PIPER EGGLESTON & CRAMER PC,


 Dated: November 16, 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 42 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 REPLY BRIEF IN SUPPORT OF 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
5069169.2


File and source

File

42-reply-to-objection-to-motion-re-33-motion-to-dismiss-for-fai.pdf

Size

29,622 bytes

SHA-256

a513046a68be06262eb44fdefcc95c54f97c39ee3e69b65fd93e336a9e8ff77f

Our copy

42-reply-to-objection-to-motion-re-33-motion-to-dismiss-for-fai.pdf

Original

archive.org