United States District Court, District of Columbia
ROBERT L. JAMES, JR., et al., Plaintiffs,
NATIONSTAR MORTGAGE LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
more than eight months, Plaintiffs Robert and Shirley James
have had the opportunity to respond to motions to dismiss
filed by two of the defendants in this case, and after
multiple orders from the Court, have failed to do so.
Furthermore, they have failed to effect service on the third
defendant in this case. For the reasons discussed below, the
Court will dismiss Plaintiffs' case without prejudice for
failure to prosecute under Federal Rules of Civil Procedure
4(m) and 41(b), and Local Civil Rule 83.23.
then represented by counsel, filed a complaint in the D.C.
Superior Court on January 11, 2017, alleging fraudulent
conversion, breach of contract, and “accounting.”
Dkt. 10 at 51-53. They suggest that the CEO of the company
that originated the mortgage on a rental property Plaintiffs
own defrauded them by diverting an insurance check meant to
pay for damage to the property. Id. at 47-53.
Plaintiffs named three defendants in their complaint: (1) Mr.
Perez, alleged to be the CEO of the mortgage originator; (2)
Standard Guaranty Insurance Company, the insurer of the
property; and (3) Nationstar Mortgage LLC, the current holder
of the mortgage. Id. at 47-49.
and Standard timely removed the action to this Court on March
20, 2017, Dkt. 1, and then both moved to dismiss on March 27,
2017. Dkt. 11; Dkt. 12. After Plaintiffs failed timely to
oppose the motions, the Court ordered them to show cause on
or before April 21, 2017, why the motions should not be
treated as conceded or the case dismissed for failure to
prosecute. Dkt. 13. On April 19, 2017, Plaintiffs'
counsel informed the Court that he had in fact submitted a
motion to withdraw his appearance in the Superior Court after
the Plaintiffs elected to terminate his representation.
Minute Order (Apr. 19, 2017). The Court, accordingly, deemed
the motion to withdraw filed, and the Court granted that
motion. Id. The Court further ordered that the case
be stayed until May 19, 2017, to permit Plaintiffs to seek
new counsel. Id. On May 17, 2017, Plaintiffs
informed the Court that they wished to proceed pro
se, writing “[p]lease don't dismiss this
case.” Dkt. 15 at 2; Dkt. 16. The Court then unstayed
the case, advised the Plaintiffs of the consequences of
failing timely to respond to Defendants' motions to
dismiss, and gave them until June 26, 2017, to file their
responses. Dkt. 16.
Plaintiffs failed timely to respond, the Court sua
sponte extended their time to respond once again,
setting a deadline of July 27, 2017. Minute Order (July 6,
2017). The Court also noted that Plaintiffs had yet to effect
service on “Mr. Perez, ” who the other defendants
alleged “to be a fictitious individual or sued under a
fictitious name.” Id. (citing Dkt. 1 at 3-4
& n.1). The Court cautioned the Plaintiffs that failure
to effect service on Defendant Perez in accordance with
Federal Rule of Civil Procedure 4 and to file proof of such
service on or before July 27, 2017, would lead the Court to
dismiss the claims against Perez without prejudice pursuant
to Rule 4(m). Id. Plaintiffs failed to file any
response or proof of service, and last responded to any order
of the Court on May 17, 2017.
Federal Rule of Civil Procedure 41(b), it is within a
court's discretion to dismiss a complaint “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order.” See also Local Civil Rule
83.23 (adopting the standard of Rule 41(b)). The court may
dismiss for failure to prosecute sua sponte or on a
defendant's motion. See Peterson v. Archstone Cmtys.
LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (citing Link
v. Wabash R.R. Co., 370 U.S. 626, 629 (1962)); see
also Fed. R. Civ. P. 41(b). The authority to dismiss
suits has long been recognized as “necessary in order
to prevent undue delays in the disposition of pending cases
and to avoid congestion” in the courts. Link,
370 U.S. at 629-30.
is warranted when, “in view of the entire procedural
history of the case, the litigant has not manifested
reasonable diligence in pursuing the cause.” Bomate
v. Ford Motor Co., 761 F.2d 713, 714 (D.C. Cir. 1985).
“A lengthy period of inactivity may . . . be enough to
justify dismissal, ” at least when “the plaintiff
has been previously warned that [she] must act with more
diligence, or if [she] has failed to obey the rules or court
orders.” Smith-Bey v. Cripe, 852 F.2d 592, 594
(D.C. Cir. 1988). Although dismissal for failure to prosecute
is a relatively “harsh sanction . . . ordinarily
limited to cases involving egregious conduct by particularly
dilatory plaintiffs, ” Angellino v. Royal Family
Al-Saud, 688 F.3d 771, 775 (D.C. Cir. 2012) (quoting
Peterson, 637 F.3d at 418), it is nonetheless
warranted “when lesser sanctions would not serve the
interest of justice, ” Bristol Petroleum Corp. v.
Harris, 901 F.2d 165, 167 (D.C. Cir. 1990). Moreover,
dismissal without prejudice may, at times, mitigate
the severity of the sanction. Such a step, in any event, is
less Draconian than treating an unopposed motion to dismiss
as conceded, as this Court's rules permit, see
Local Civil Rule 7(b) (stating that if an opposition is not
timely filed “the Court may treat the motion as
conceded”); see also MacLeod v. United States
Dep't of Homeland Sec., No. 15-CV-1792, 2017 WL
4220398, at *5, *8 (D.D.C. Sept. 21, 2017) (describing
standard and granting a motion to dismiss as conceded), which
will often operate as an adverse adjudication of the dispute
on the merits, Barnes v. District of Columbia, 42
F.Supp.3d 111, 118-19 (D.D.C. 2014); Poblete v. Indymac
Bank, 657 F.Supp.2d 86, 90 & n.2 (D.D.C. 2009). And,
it may even be less prejudicial than reaching the substance
of a motion to dismiss without the benefit of any opposing
argument, which will also typically result in a decision on
Plaintiffs' failure to respond to the Court's
repeated orders and their “lengthy period of
inactivity, ” dismissal for failure to prosecute is
appropriate. Defendants filed their motions to dismiss on
March 27, 2017, and this Court has not heard from Plaintiffs
since they indicated they wished to proceed pro se
on May 17, 2017-more than seven months ago. This Court has
advised Plaintiffs of the consequences of inaction three
times. Dkt. 13; Dkt. 16; Minute Order (July 6, 2017).
Although Plaintiffs indicated that they wished to proceed
pro se after the Court stayed the case for a month
to let them find new counsel, Plaintiffs have made no effort
to explain their failure to respond to Defendants'
motions to dismiss or to the Court's two most recent
orders requiring a response. In fact, they have done nothing
to suggest that they intend to pursue their case at all in
more than seven months. In light of this history, it is
apparent that Plaintiffs have “not manifested
reasonable diligence in pursuing” their case, and that
their complaint should be dismissed. This Court's Local
Rules provide that dismissals for failure to prosecute should
be made without prejudice unless the delay in prosecution
impairs the opposing party's interests. Local Civil Rule
83.23. The Court sees no reason to depart from this default
rule, particularly in light of Plaintiffs' pro
se status. By doing so, the Court will leave the
Plaintiffs in the same position as if the action-which they
have, to date, declined to pursue- were never filed.
Plaintiffs have failed to serve “Mr. Perez” in
the eleven months since this action was initiated. They have
also, despite the Court's urging, failed to identify
“good cause” for their failure to effect service
in compliance with Rule 4. Without proof of good cause, the
Court may consider equitable factors and either dismiss the
case or extend the time for effecting service. Mann v.
Castiel, 681 F.3d 368, 375-76 (D.C. Cir. 2012).
“[D]ismissal of a case pursuant to Rule 4(m) is
appropriate when the plaintiff's failure to effect proper
service is the result of inadvertence, oversight, or neglect,
and dismissal leaves the plaintiff in the same position as if
the action had never been filed.” Id. at 376
(citations and internal quotation marks omitted). The Court
extended Plaintiffs' deadline by which to effect service
to July 27, 2017, yet no proof of service has been filed.
This continued failure to comply with the requirements of
Rule 4 can be attributed solely to the “inadvertence,
oversight, or neglect” of the Plaintiffs. See
Fed. R. Civ. P. 4(m).
light of Plaintiffs' failure to respond to
Defendants' motions to dismiss and to this Court's
orders that they do so, and their failure to effect service
on “Mr. Perez, ” it is hereby
ORDERED that the case is
DISMISSED without prejudice pursuant to
Federal Rules of Civil Procedure 4(m) and 41(b), and Local
Civil Rule 83.23. The motions to dismiss, Dkt. 12; Dkt. 11,
are hereby DENIED as moot.