UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
| MARQUISE MILLER,
Plaintiff, vs. LEGACY BANK, Defendant |
Case No.: CIV-20-946-D |
PLAINTIFF’S REPLY TO DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND BRIEF IN SUPPORT
Plaintiff, Marquise Miller, for its reply to defendant’s reply to plaintiff’s response to defendant’s motion to dismiss plaintiff’s complaint, states as follows:
- DEFENDANT’S RESPONSE VIOLATED THE REQUIREMENTS UNDER RULE 7.1(i) OF THE LOCAL COURT RULES.
LCvR7.1(i) states in part that: “Reply briefs shall not be used to reargue the points and authorities included in the opening brief”. Accordingly, Defendant’s reply has violated the aforesaid provision in the following manner:
Defendant’s reply Brief recites almost verbatim the points and arguments raised in Defendant’s opening Brief. Notably, excerpts from said Defendant’s Motion would suffice to prove Defendant’s violation of the said legal provision, to wit:
- Arguments as to the plagiarized nature of Plaintiff’s Complaint (Throughout Defendant’s reply- in almost every point- Defendant reargues its allegations that Plaintiff plagiarized another Complaint):
“Plaintiff does not even acknowledge that substantive allegations in his Complaint are plagiarized and not representative of the actual facts in his case”. (Page 2, Defendant’s Reply to Plaintiff’s Reply…)
“Yet, Plaintiff bases his claims on allegations regarding treatment of other minority applicants, … that he plagiarized from the BancorpSouth Complaint”. (Id.)
“Plaintiff specifically relies on the BancorpSouth Case facts to support his claim”. (Id.)
“Finally, Plaintiff’s “Redlining” claims are equally reliant on plagiarized facts that Plaintiff has no basis to assert in this case”. (Page 3, Defendant’s Reply to Plaintiff’s Reply…)
Defendant made the aforesaid arguments in Defendant’s preceding reply. For instance, the arguments above were made in page 5 of Defendant’s first Reply, to wit:
“PLAINTIFF’S COMPLAINT VIOLATES RULE 8 BECAUSE IT IS SATURATED WITH FALSE ALLEGATIONS PLAINTIFF PLAGIARIZED FROM AN UNRELATED CASE”. (Page 5, Defendant’s Motion to Dismiss Plaintiff’s Complaint)
- Arguments as to Plaintiff’s Plaintiff making unsubstantiated references to other applicants:
“Plaintiff does reveal that he only has knowledge of his experience with Legacy Bank…Yet Plaintiff bases his claims on allegations regarding treatment of other minority applicants, treatment of similarly situated white applicants and racially biased patterns and practices that he plagiarized from the BancorpSouth Complaint”. (Page 2, Defendant’s Reply to Plaintiff’s Reply…)
“Plaintiff admittedly did not investigate the facts to know whether Legacy Bank actually denied mortgage loan applications of African-Americans more often than applications of similarly situated White applicants. Plaintiff has no basis or reason to believe these allegations are well-grounded in fact and has no other support for his “Underwriting” claims”. (Page 3, Defendant’s Reply to Plaintiff’s Reply…)
Defendant made the aforesaid arguments in Defendant’s preceding reply. For instance, the allegations above were made in page 10 of Defendant’s first Reply, to wit:
“Plaintiff’s Complaint continuously makes reference to other unnamed, unspecified. applicants and groups that Plaintiff alleges have been affected by Legacy Bank. Plaintiff alleges… “. (Page 5, Defendant’s Motion to Dismiss Plaintiff’s Complaint)
The aforementioned are instances of Defendant’s repetition of arguments in Defendant’s previous Motion. It follows; Defendant’s reply should be struck off. The Court in Gunther v. Anchor Glass Container Corp. held in this regard that, a motion to strike is the proper remedy for an improper reply brief. 225 A.D.2d 1099 (4th Dept. 1996). Alternatively, the Court should strike the challenged statements for failure to adhere to the required law. Wauconda Fire Prot. v Stonewall Orchads, 343 III App. 3d. 374.
II OPPOSING COUNSEL SHOULD BE SANCTIONED FOR DISPLAYING BEHAVIOUR THAT AMOUNT TO DELAY TACTICS
An Attorney’s signature on a pleading, written motion, or other paper filed in court constitutes a certificate “that to the best of the signer’s knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation”. Fed.R.Civ.P 11.
If there is a violation of the aforementioned provision, the Court can sanction either the Opposing counsel, the client, or both. Id. These sanctions may include payment of the other party’s reasonable expenses incurred in the course of the litigation, including a reasonable attorney’s fee. Id.
In the instant case, the portions of Rule 11 relevant to this case to determine whether sanctions are justified are its requirements for “reasonable inquiry”, “good faith argument”, and the requirement that the filing was not “interposed for any improper purpose”. Id.
Defendant’s filing constitutes a violation of Rule 11 because the Counsel for the Defendant fails to provide a good faith argument. The language and conduct in Defendant’s filings appear to harass Plaintiff when he argues incessantly throughout his filings that the thrust of Plaintiff’s complaint contains “plagiarized facts” from a case filed in 2016 in the Northern District of Mississippi. Defendant goes ahead to allege that the similarity between Plaintiff’s case and the plagiarized complaint is a per se indication of the failure of Plaintiff’s complaint to meet the standards required under Federal law for pleadings. Notably, Defendant makes a statement to wit, “Legacy Bank shall not be required to answer a fictionalized, abbreviated version of [another] complaint”.
Defendant’s filing constitutes a violation of Rule 11 because Defendant failed to make a reasonable inquiry into Plaintiff’s allegations in the Complaint. Defendant relies, blindly, on its allegation that Plaintiff plagiarized the points and facts of the complaint. In that vein, Defendant fails to acknowledge the fact that Plaintiff’s complaint raises pertinent issues of law. Notably, racial discrimination in banking is- and has been- a serious issue in the U.S.A. Besides, just because one bank racially discriminates its customers does not mean that the Defendant could not engage in the same conduct. Instead of erroneously maintaining that Plaintiff’s complaint fails to meet the standard, Defendant ought to evaluate the allegations in the Complaint and the plausibility that they establish claims of race discrimination. It is also worth noting that because Plaintiff proceeds pro se, his complaint is entitled to a liberal construction.
Defendant’s filing constitutes a violation of Rule 11 because Defendant’s filings appear to serve an improper purpose. As already alleged hereinabove, Defendant solely relies on the erroneous argument that Plaintiff’s complaint is plagiarized and fails to state a claim. The said allegation appears in all Defendant’s filings. It can be reasonably concluded that Defendant’s counsel intends to harass Plaintiff and bring him out as a frivolous litigant. Also, it can be reasonably observed that the behavior of Defendant’s counsel amount to delay tactics meant to delay Plaintiff’s access to justice. Notably, Defendant’s counsel has failed to be diligent in identifying and arguing out legal issues as they appear in Plaintiff’s complaint. As a result, such behavior wastes this Court’s time because the Court may be obstructed from hearing and determining pertinent issues that exist in Plaintiff’s complaint.
CONCLUSION
For the foregoing reasons, this honorable Court should strike Defendant’s Reply because it violates Rule 7.1 of the Local Court Rules. Alternatively, the Court should strike the challenged statements for failure to adhere to the said law. Plaintiff also prays that this honorable Court sanctions Opposing Counsel for violating Rule 11 of the Federal Rules of Civil Procedure. Finally, Plaintiff prays this Court allows Plaintiff’s case to proceed to discovery.
Dated: _____________
| ________________________
Marquise Miller, Pro Se P.O. Box 14938 Oklahoma City, OK 73113 wonderfullymadefoundationmm@gmail.com Plaintiff in Pro Per. |
CERTIFICATE OF MAILING
I hereby certify that on [ENTER DATE], I filed the attached document with the Clerk of the Court and served the attached document by email and certified mail on the following:
| JAMIE L. BLOYD, OBA #30989
CHEEK & FALCONE, PLLC 6301 Waterford Blvd., Suite 320 Oklahoma City, OK 73118 Telephone: (405) 286-9191 Facsimile: (405) 286-9670 Attorney for Defendant |
Dated: _____________
| ________________________
Marquise Miller, Pro Se P.O. Box 14938 Oklahoma City, OK 73113 wonderfullymadefoundationmm@gmail.com Plaintiff in Pro Per. |
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