Charles Atwater, et al v. Bank Of New York Mellon Trust, et al

Filing

Per Curiam OPINION filed : The district court's order dismissing the complaint is AFFIRMED, decision not for publication. R. Guy Cole , Jr., Chief Circuit Judge; Richard Allen Griffin and James G. Carr, U.S. District Judges.

Case: 13-2309

Document: 44-2

Filed: 12/09/2014

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0914n.06
No. 13-2309

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Dec 09, 2014
DEBORAH S. HUNT, Clerk

CHARLES ATWATER; JODETTE
ATWATER,
Plaintiffs-Appellants,
v.
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., et al.,
Defendants-Appellees.

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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: COLE, Chief Judge, GRIFFIN, Circuit Judge; CARR, District Judge.

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PER CURIAM. Charles and Jodette Atwater, husband and wife, Michigan citizens,
appeal through counsel a district court judgment dismissing their complaint challenging a
mortgage foreclosure for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
The Atwaters granted a mortgage to defendant in 2001 as security for a $242,050 loan to
purchase a home. They defaulted on the loan and the property was eventually sold at a sheriff’s
sale in 2012. The Atwaters then filed a complaint challenging the foreclosure. Only the Bank of
New York Mellon Trust Company was issued summons. The district court twice ordered
plaintiffs to amend the complaint, and they complied, albeit once after the deadline set by the
court. After plaintiffs filed their third amended complaint, defendant then moved for summary

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The Honorable James G. Carr, Senior United States District Judge for the Northern
District of Ohio, sitting by designation.

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judgment. When the time for responding to the motion expired, the district court issued a show
cause order requiring a response and warning plaintiffs that failure to respond would be
construed as abandonment of their claims and would result in dismissal. No response to the
show cause order was filed, and the district court dismissed the complaint on July 8, 2013. The
Atwaters’ motion for reconsideration, filed on July 22, was denied.
On appeal, the Atwaters argue that the failure to respond to the order to show cause was
the result of an error by counsel, who believed the response was due on July 31, 2013, not July 3.
We review the dismissal of a complaint for failure to prosecute, pursuant to Rule 41(b),
for an abuse of discretion. Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). The
factors generally relevant to such a review include whether the failure to respond to the court’s
order was due to willfulness, bad faith, or fault; whether the other party was prejudiced; whether
the court warned that dismissal would result; and whether less drastic sanctions were considered.
Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 589 (6th Cir. 2001). Plaintiffs argue that their
failure to respond was not willful or in bad faith but was merely an error in noting the due date.
However, a showing of mere error does not help parties seeking to reopen judgments of
dismissal because they have “the burden of showing that [their] failure to comply was due to
inability, not willfulness or bad faith.” United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002)
(emphasis added). Plaintiffs were clearly warned here, as defendant had moved for summary
judgment, and the district court expressly stated that failure to respond to the order to show cause
would be viewed as abandonment of the claims and result in dismissal. Also, while district
courts should generally consider alternatives to dismissal with prejudice, they are not required to
always articulate their consideration of lesser sanctions. Harmon v. CSX Transp., Inc., 110 F.3d
364, 368 (6th Cir. 1997).
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Accordingly, we affirm the district court’s order dismissing this complaint.

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