United States District Court, W.D. North Carolina, Statesville Division
C. Keesler, United States Magistrate Judge
MATTER IS BEFORE THE COURT on “Defendant's Motion
For Summary Judgment” (Document No. 50) and
“Defendant's Objection And Motion To Strike
Evidence Submitted In Opposition To Summary Judgment”
(Document No. 59). The parties have consented to Magistrate
Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and
these motions are ripe for disposition. Having carefully
considered the record, the motions, applicable authority, and
the arguments of counsel at a hearing on January 24, 2017,
the undersigned will grant the motion for summary
judgment, and deny the motion to strike.
initiated this action with the filing of a
“Complaint” (Document No. 1-1) in the Superior
Court of Ashe County, North Carolina, Case No. 14-CVS-282, on
July 16, 2014. The Complaint asserts claims for: (1)
negligence; (2) gross negligence; and (3) unfair and
deceptive trade practices. (Document No. 1-1, pp.8-10). The
crux of Plaintiff's Complaint is that Defendants caused
false information and/or advertisements to be posted on the
Internet that described Plaintiff's property as a
“foreclosure sale, ” and that such false
information caused a reduction in the fair market value of
Plaintiff's property. (Document No. 1-1, pp.6-7).
August 29, 2014, Ocwen Loan Servicing, LLC
(“Ocwen”), HSBC Bank USA, National Association,
as trustee for Fremont Home Trust 2004-B Asset Backed
Certificates, Series 2004-B (“HSBC”), and Real
Home Services and Solutions, Inc. (“RHSS”)
(collectively, “Defendants”) filed a
“…Motion To Dismiss” (Document No. 11)
pursuant to Fed.R.Civ.P. 12(b)(6) seeking dismissal of
Plaintiff's gross negligence and unfair and deceptive
trades practices (“UDTPA”) claims. The Honorable
Richard L. Voorhees denied the motion to dismiss on April 1,
2015. (Document No. 18). In denying the motion to dismiss,
Judge Voorhees noted that there was no doubt that
Defendants' original error was inadvertent; nevertheless,
he found that Plaintiff's claims were plausible and the
lawsuit should proceed to discovery. (Document No. 18,
pp.11-12). Judge Voorhees further noted that the claims
Defendants sought to dismiss might be more appropriately
disposed of at summary judgment. Id.
“Affirmative Defenses And Answer Of The
Defendants” (Document 26) was filed on May 8, 2015, and
the parties' “Certification And Report of F.R.C.P.
26(f) Conference And Discovery Plan” (Document No. 27),
as well as their “Joint Stipulation Of Consent To
Exercise Of Jurisdiction By A United States Magistrate
Judge” (Document No. 28), were filed on May 28, 2015.
This case was reassigned to the undersigned United States
Magistrate Judge on May 29, 2015.
8, 2015, the Court issued a “Pretrial Order And Case
Management Plan” (Document No. 29) establishing case
deadlines that were consistent with the parties' proposed
deadlines. See (Document No. 27). The deadlines
included the following: discovery completion - December 15,
2015; mediation report - January 15, 2016; dispositive
motions - February 15, 2016; and trial - June 6, 2016.
(Document No. 29).
December 15, 2015, the date discovery was due to be
completed, the parties filed a “Consent Motion To
Extend Discovery Period” (Document No. 30) stating that
the “parties are cooperating in completing discovery,
” but need a sixty-day extension to complete discovery.
On December 16, 2015, the undersigned granted the motion.
January 15, 2016, the parties filed a “Joint Motion To
Extend Mediation Deadline” (Document No. 32). On
January 19, 2016, the Court granted the extension, and
adjusted other case deadlines. (Document No. 33).
March 9, 2016, the parties filed their “Joint Motion To
Extend Scheduling Order Deadlines” (Document No. 38)
requesting that the mediation and motions deadlines be
extended, without any mention of further extending discovery.
The Court granted the motion on March 15, 2016, and then
further extended the mediation deadline at the request of the
mediator on April 29, 2016. (Document Nos. 39 and 40).
parties again filed a “Joint Motion To Amend Scheduling
Order” (Document No. 42) on May 9, 2016. The
undersigned again granted the parties' request. (Document
No. 43). Moreover, to accommodate the parties' latest
request, the Court also had to move the trial date to
February 20, 2017. Id.
23, 2016, the parties filed yet another “Joint Motion
To Extend Scheduling Order Deadlines” (Document No.
44). This time, the parties reported that “the primary
witness for Real Home Services and Solutions, Linda McCauley,
has recently retired, ” and therefore, the parties need
additional time to identify and depose another witness.
(Document No. 44). Again, the Court allowed the parties'
joint motion to extend deadlines. (Document No. 45). In
granting the motion, the Court stated:
The parties shall have up to and including September 26, 2016
to complete all depositions, obtain transcripts of said
depositions, and prepare and file dispositive motions and
supporting memoranda. Further extension of these deadlines is
(Document No. 44, p.1).
Motion For Summary Judgment” (Document No. 50) was
timely filed on September 26, 2016. After being allowed an
extension of time, “Plaintiff's Response To
Defendant's Summary Judgment” (Document No. 56) was
filed on October 28, 2016. Defendants failed to file a timely
reply brief, or notice of intent not to reply, and the Court
then ordered Defendants to file a reply brief. (Document No.
57) (citing Local Rule 7.1 (E)). Defendants filed a reply
brief (Document No. 58), and the pending
“…Objection And Motion To Strike Evidence
Submitted In Opposition To Summary Judgment” (Document
No. 59), on November 18, 2016.
December 16, 2016, one (1) month after the summary judgment
motion ripened, and almost three (3) months after all
depositions were due to be complete, and transcripts
obtained, Plaintiff filed motions for leave to take
depositions of Linda McCauley, and of Altisource, Inc.
(Document Nos. 63 and 64). Then, on January 6, 2017, more
than three (3) years after the initial lawsuit was filed
regarding the underlying dispute, and less than six (6) weeks
from trial, Plaintiff filed its “Motion For Leave to
Amend Complaint And to Add New Defendant Altisource
Solutions, Inc.” (Document No. 68). On January 12,
2017, the undersigned denied Plaintiff's motions to
conduct additional depositions and to amend the Complaint.
(Document No. 71).
Motion For Summary Judgment” (Document No. 50) and
“Defendant's Objection And Motion To Strike
Evidence Submitted In Opposition To Summary Judgment”
(Document No. 59) are now ripe for disposition, and immediate
review is appropriate.
STANDARD OF REVIEW
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant has the “initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Only
disputes between the parties over material facts (determined
by reference to the substantive law) that might affect the
outcome of the case properly preclude the entry of summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute about a material fact is
“genuine” only if the evidence is such that
“a reasonable jury could return a verdict for the
nonmoving party.” Id.
the movant's initial burden is met, the burden shifts to
the nonmoving party. Webb v. K.R. Drenth Trucking,
Inc., 780 F.Supp.2d 409 (W.D. N.C. 2011). The nonmoving
party opposing summary judgment “may not rest upon the
mere allegations or denials of his pleading, but ... must set
forth specific facts showing there is a genuine issue for
trial.” Anderson, 477 U.S. at 248. In deciding
a motion for summary judgment, a court views the evidence in
the light most favorable to the non-moving party, that is,
“[t]he evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his
favor.” Anderson, 477 U.S. at 255. At summary
judgment, it is inappropriate for a court to weigh evidence
or make credibility determinations. Id.
Kevin Jordan and wife Sherry D. Jordan (the
“Jordans”) purchased three adjacent lots in the
Jefferson Township of Ashe County, North Carolina in or about
April 2000 - April 2001. (Document No. 1-1, p.5) (Document
No. 12, p.2). The first lot was acquired on or about April
14, 2000, and is located at 374 Bower Lane, Jefferson, NC
28640. (Document No. 12, p.2) (Document No. 12-1). This lot
consists of approximately three acres, and is identified by
Ashe County parcel number 09302-237-004 (“004” or
the “PLS Property”). Id.; see
also (Document No. 1-1, p.5).
about April 24, 2001, the Jordans acquired title to two
vacant lots adjacent to the PLS Property. (Document No. 12,
p.2; Document No. 12-2). These two adjacent and vacant lots
(together the “Jordan Lots”) bear Ashe County
parcel numbers 09302-237-006A (“006A”) and
09302-237-006B (“006B”), with a property address
of 374 Bower Lane, Jefferson, NC 28640. (Document No. 12,
p.2); see also (Document No. 1-1, p.5). One of these
lots is approximately one acre, and the other lot is
approximately two acres. (Document No. 1-1, p.5).
years later, on February 11, 2004, the Jordans executed a
Deed of Trust that was recorded in the Ashe County Registry
at Book 308, page 749, regarding the two adjacent lots.
Id.; (Document No. 56-3). Apparently, the Deed of
Trust secured a loan of $500, 000.00 to the Jordans.
(Document No. 56-3, p.3). The lender under the Deed of Trust
was originally Freemont Investment and Loan, but the Deed of
Trust was later assigned to Defendant HSBC in or about May
2004. (Document No. 56-3); (Document No. 1-1, pp.5-6);
(Document No. 56, p.1).
March 10, 2008, Plaintiff PLS purchased the Jordans'
first lot, 004, now referred to as the PLS Property.
(Document No. 1-1, p.5); (Document No. 56, p.1). This lot
includes a home and about three acres at 374 Bower Lane, and
was purchased by Plaintiffs from the Jordans for $1, 180,
000, “for investment purposes.” Id. The
Jordans retained ownership of their two adjacent lots, 006A
and 006B. ...