IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

TERRY HESTER, et al., )

)
Plaintiffs, )
)
) CIVIL ACTION NO.
v. ) 2:09cv908-MHT
)
REGIONS BANK, et al., )
)
Defendants. )

PLAINTIFFS’S MOTION TO DENY DEFENDANT BANK OF

AMERICA’S MOTION FOR INVOLUNTARY DISMISSAL FILED ON
DECEMBER 7, 2009 AND PLAINTIFFS’S MOTION FOR LEAVE TO
RESPOND TO DEFENDANT BANK OF AMERICA’S REPLY BRIEF

Come the Plaintiffs in the above styled cause, and, in an initial and

immediate response to Defendant Bank of America’s Motion For

Involuntary Dismissal filed December 7, 2009, move this Court to deny

Defendant Bank of America’s Motion for Involuntary Dismissal and also

move this Court for leave to respond to Defendant Bank of America’s Reply

Brief. In support of Plaintiffs’s motions, Plaintiffs submit the following:

On October 29, 2009, this Court ordered Plaintiffs to show cause

“why this case should not be dismissed because diversity jurisdiction is

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missing.” (Doc. No. 6) (“the Show Cause Order”) The Plaintiffs promptly

responded to the Show Cause Order -- by filing “Plaintiffs’s Response To

Court’s Show Cause Order Dated October 29, 2009 And To Court’s Order

Dated November 6, 2009 Regarding Defendant Regions Bank’s Motion To

Dismiss Filed November 5, 2009”. (Doc. No. 22) The next business day on

November 16, 2009, Plaintiffs followed their November 13, 2009 response

to this Court’s Show Cause Order with a supplement to such response.

(Doc. No. 26) In the response and supplement thereto, Plaintiffs set out

their arguments why federal question jurisdiction exists in this case.

Plaintiffs’s Counsel Inadvertently Omitted to Open This Court’s

Second October 29, 2009 Order Until It Was Prompted to Do So By
Bank of America’s Filing on Today’s Date.

As an officer of the Court, Plaintiffs’s counsel states that, until today’s

date: December 7, 2009, he did not open this Court’s second order dated

October 29, 2009 and ordering “that the Plaintiffs have until November 13,

2009 to amend the complaint to allege jurisdiction sufficiently; otherwise

this lawsuit shall be dismissed without prejudice.” (Doc. No. 7) (emphasis

added). Plaintiffs’s counsel was prompted to search for and open this

Court’s second October 29, 2009 order (Doc. No. 7) when Bank of America

filed its Motion for Involuntary Dismissal dated December 7, 2009 arguing

that Plaintiffs have not amended their complaint. Plaintiffs’s counsel

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suspects that he did not open this order because the email subject line did

not identify it as an order to amend complaint nor as an order separate

from the first October 29, 2009 order (instead, using the one word “order”,

to identify it), and thus, it may have appeared to be a duplicate of the first

October 29, 2009 order. In any case, Plaintiffs’s counsel represents to the

Court that not opening the second order was an inadvertent mistake.

Plaintiffs’s counsel submits that had he opened this Court’s second

October 29, 2009 order (Doc. No. 7), he would have timely and specifically

complied with it along with the response he did file to this Court’s first

October 29, 2009 order, the Show Cause Order (Doc. No. 6).

Defendants Have Not Been Prejudiced By The Inadvertent Omission

of Plaintiffs’s Counsel.

Between the November 13, 2009 due date set by this Court’s second

October 29, 2009 order and today’s date, the various parties have

exchanged various pleadings, all substantially focused upon whether

federal question jurisdiction exists in this case. Plaintiffs, without fail, have

timely responded to each order of this Court entered during this time period

and have argued in their responses that federal question jurisdiction exists

in this case because it arises under the Constitution and under various

federal laws governing commercial banking. Moreover, this Court has

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granted, and continues to grant, Defense counsel a full and fair opportunity

to challenge the Complaint on jurisdictional and other grounds, and all

Defendants have taken advantage of this opportunity and continue to do

so. Also, Plaintiffs’s counsel is unaware of any order filed after October 29,

2009 that ordered Plaintiff to file an amended Complaint, and Plaintiffs’s

counsel submits that, if he had received such an order or otherwise been

made aware that a response to this Court’s second October 29, 2009 order

was due, he would have timely filed such a response.

Eleventh Circuit and Old Fifth Circuit Precedent Support a Denial of

Defendant Bank of America’s Motion for Involuntary Dismissal.

Eleventh Circuit and old Fifth Circuit precedent support a denial of

Defendant Bank of America’s Motion for Involuntary Dismissal. For

instance, in a case where a party inadvertently did not comply with a court

order issued pursuant to a local rule, the Eleventh Circuit set out the

following:

"A district court has authority under Federal Rules of Civil

Procedure 41(b) to dismiss actions for failure to comply with local
rules. We review such orders for abuse of discretion." Kilgo v. Ricks,
983 F.2d 189, 192 (11th Cir. 1993). This circuit has clearly stated that
because dismissal is considered a drastic sanction, a district court
may only implement it, as a last resort, when: (1) a party engages in a
clear pattern of delay or willful contempt (contumacious conduct); and
(2) the district court specifically finds that lesser sanctions would not

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 suffice. See, e.g., Kilgo, 983 F.2d at 192 (citing a line of Eleventh
Circuit cases which have consistently articulated this standard).

World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d

1454, 1456 (11th. Cir. 1995) (emphasis added). Although World Thrust

Films involves a dismissal for not complying with a court order issued

pursuant to a local rule, it does involve a Rule 41(b) issue, and this case’s

principles, by analogy, are applicable here. In the instant case, Plaintiffs

have not engaged in a clear pattern of delay or willful contempt. To the

contrary, Plaintiffs have timely complied with all orders of this Court about

which their counsel was aware and have done so without requesting any

time extensions, even though Plaintiffs’s counsel is a sole practitioner who

is aligned against at least eight defense attorneys.

Also instructive here is a 1974 Fifth Circuit case from bankruptcy law

where the Court, in upholding the granting of a bankrupt party’s discharge

despite his inadvertent failure to comply with a judge’s order to complete a

written Statements of Debts Schedule. The Court’s ruling in In re Jones,

490 F. 2d 452, 456 (1974) rested upon the bankrupt party’s inadvertence

and lack of intentional disobedience, upon his lack of intent to harm

creditors or insult the authority of the court, and upon the lack of prejudice

to creditors. In the instant case, the situation is, again, a matter of

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inadvertence, lack of intent to harm the Defendants and lack of intent to

show disrespect to the Court’s authority, and finally lack of prejudice to the

Defendants.

Conclusion

In conclusion, Plaintiffs state that not opening the second October 29,

2009 order of this Court was an omission of complete inadvertence, that

Plaintiffs addressed in detail the concerns expressed by this Court in that

order by timely responding to this Court’s first October 29, 2009 order: the

Show Cause Order, and that the Defendants have not been prejudiced by

the instant situation because they have taken advantage of the full

opportunity granted by this Court to respond to Plaintiffs’s Complaint and

other pleadings, including Plaintiffs’s claim that jurisdiction rests upon the

existence of federal questions. Finally, given how far this case has now

progressed, if this Court were to grant a dismissal without prejudice, as it

indicated in its second October 29, 2009 order, the ends of judicial

efficiency would arguably suffer.

WHEREFORE, Plaintiffs move this Court to deny Defendant Bank of

America’s December 7, 2009 Motion for Involuntary Dismissal Pursuant to

Fed.R.Civ. P. 41(b) and for Failure to Sufficiently Allege Jurisdiction. (Doc.

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No. 46) Plaintiffs also move this Court, should it grant Defendant Bank of

America’s December 7, 2009 Motion for Leave to File (Doc. No. 48), for

their own leave to file a response to Defendant Bank of America’s Reply

Brief, filed 17 days after Plaintiffs filed their November 20, 2009 Response

(Doc. No. 28) to Defendant Bank of America’s Motion to Dismiss (Doc. No.

12).

Respectfully submitted,

/s/Hense R. Ellis II
Hense R. Ellis II
Counsel for Plaintiffs

Hense R. Ellis II
Hense R. Ellis II, LLC
800 Lay Dam Road
Clanton, AL 35045
(205) 755-2223

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing has been

electronically filed with the Clerk for the Middle District of Alabama and also

served upon the following listed persons by electronic service through the

CM/ECF court filing system or by U. S. Mail if not participating in electronic

service through the CM/ECF system, this the 20th day of November, 2009:

Randall D. Quarles, Esq., Frances P. Quarles, Esq.

Attorney for Defendant Regions Bank
Quarles Law Firm, LLC
Post Office Box 1567
Birmingham, Alabama 35201

John W. Scott, Kimberly W. Geisler

Attorneys for Defendant Bank of America, N.A.
SCOTT DUKES & GEISLER, P.C.
2100 Third Avenue North, Suite 700
Birmingham, Alabama 35203

Victor L. Hayslip, Kip A. Nesmith, Walker S. Stewart

Counsel for Wachovia Bank
BURR & FORMAN LLP
3400 Wachovia Tower, 420 North 20th Street
Birmingham, Alabama 35203

John R. Chiles, Matthew Mitchell

Counsel for Citibank
BURR & FORMAN LLP
3400 Wachovia Tower, 420 North 20th Street
Birmingham, Alabama 35203

___________________
Hense R. Ellis II
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Hense R. Ellis II
Hense R. Ellis II, LLC
800 Lay Dam Road
Clanton, AL 35045
(205) 755-2223