Underwood v. Bank Of America Corporation
- John Cronan
- 1:25-cv-05007
- U.S. District Court · Southern District of New York
- 3
In Underwood v. Bank of America, Judge Cronan overruled Underwood’s objection, denied his requests, and denied his amended reconsideration motion.
Erik M. Underwood’s requests for emergency relief and reconsideration were denied, while Bank of America received the notice and opportunity to respond that the court required. Judge Sarah Netburn remained assigned to the case.
What happened
In Underwood v. Bank of America Corporation, Erik M. Underwood sought emergency court orders without first notifying Bank of America, including a temporary restraining order. Judge Sarah Netburn instead ordered him to serve the bank because it was not apparent that he met the requirements for emergency relief without notice.
Underwood asked the court to reconsider that service order, sought an immediate hearing, and asked that Judge Netburn be removed. He later filed an amended reconsideration motion that he acknowledged was consistent with his earlier motion. He served Bank of America as ordered and filed proof of service.
Judge Cronan overruled Underwood’s objection, denied his requests, and denied the amended reconsideration motion. The court held that Judge Netburn’s orders were not clearly erroneous and did not show partiality. The court also explained that Underwood’s original emergency motion had not been denied; the service requirement gave Bank of America notice and an opportunity to respond.
The detailed version
- Underwood v. Bank Of America Corporation · No. 1:25-cv-05007
- John Cronan
- Aug. 18, 2025
Background
On June 13, 2025, Erik M. Underwood filed an emergency motion against Bank of America Corporation seeking a declaratory judgment, a constructive trust, injunctive relief, and investor protection. The motion was filed without first serving Bank of America.
Judge Sarah Netburn, who was assigned general supervision of pretrial proceedings and recommendations on dispositive motions, ordered Underwood to serve Bank of America with his complaint and emergency motion. She explained that it was not apparent that Underwood was entitled to the emergency relief he sought without notice to the opposing party.
Underwood instead filed a motion asking Judge Netburn to reconsider. She denied that motion and again ordered him to serve the relevant papers and file proof of service. Underwood served Bank of America on August 5 and filed proof of service on August 6. He then objected to Judge Netburn’s ruling, sought an immediate hearing on a temporary restraining order, and asked that Judge Netburn be removed based on what he described as a pattern of prejudicial rulings. He also filed an amended reconsideration motion that he acknowledged was consistent with his earlier motion.
Court’s analysis
The court treated the service orders as non-dispositive orders because they concerned only how Underwood would proceed with his underlying claims. Under Federal Rule of Civil Procedure 72(a), objections to such orders are reviewed for clear error, meaning the reviewing court will not disturb the order unless it is clearly mistaken. The court found no clear error in either Judge Netburn’s order requiring service or her order denying reconsideration.
The court stated that even under a more searching review, the orders were well reasoned. Federal Rule of Civil Procedure 65(b) requires specific facts in an affidavit or verified complaint clearly showing that immediate and irreparable harm will occur before the opposing party can be heard before a court may issue emergency relief without notice. The court agreed that this harm was not apparent, particularly in light of earlier judgments involving substantially similar claims.
The court emphasized that Judge Netburn had not denied Underwood’s original emergency motion. Her orders required Bank of America to receive notice and an opportunity to respond before a recommended ruling on that motion. The court also rejected Underwood’s request to remove Judge Netburn, explaining that earlier adverse rulings alone do not reasonably establish that a judge is biased or create an appearance of partiality.
Disposition
Judge Cronan overruled Underwood’s objection and denied his requests, including his request to remove Judge Netburn. The court also denied the amended emergency motion for reconsideration for the same reasons and directed the Clerk of Court to close the motion at Docket Number 14. The opinion did not decide the merits of Underwood’s original emergency motion for relief.
Classification
This is a procedural order. The court reviewed non-dispositive pretrial orders, the requirements for emergency relief without notice, and a request to remove the magistrate judge; it did not decide the underlying claims or the original emergency motion on its merits.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.