Benjamin v. Bank of America, N.A.

Filing 21

ORDER directing as follows: (1) defendant Green Tree Servicing, LLC's 20 objection is OVERRULED; (2) the ADOPTING 19 REPORT AND RECOMMENDATION of the Magistrate Judge is ADOPTED; (3) plf Alyson Benjamin's claims are DISMISSED without prejudice due to her failure to prosecute this action and comply with orders of this court. Signed by Chief Judge William Keith Watkins on 5/7/15. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ALYSON BENJAMIN,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
et al.,
Defendants.

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CASE NO. 2:14-CV-575-WKW

ORDER
On April 7, 2015, the Magistrate Judge entered a Report and
Recommendation (Doc. # 19) in this case, in which he recommended that Plaintiff
Alyson Benjamin’s claims be dismissed without prejudice in light of her failure to
prosecute.

Ms. Benjamin has not objected to the Magistrate Judge’s

Recommendation. Defendant Green Tree Servicing, LLC, did object, however,
and is requesting that this court either dismiss Ms. Benjamin’s case with prejudice
or issue an order precluding her from re-filing her case in state court. The court
has conducted an independent and de novo review of those portions of the
Recommendation to which objection is made. See 28 U.S.C. § 636(b).
While Defendant Green Tree’s objection is noted, it is due to be overruled.
As the Eleventh Circuit has repeatedly explained, “[d]ismissal of a case with
prejudice is considered a sanction of last resort, applicable only in extreme

circumstances.” Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). The
record shows that Ms. Benjamin instituted this action with the benefit of counsel
and only began proceeding pro se when her counsel withdrew in light of the
development of an “irreconcilable conflict of interest.” (Docs. # 14, 15.) Because
Ms. Benjamin’s failure to prosecute immediately followed the withdrawal of her
counsel, this court finds dismissal with prejudice an inappropriate sanction.
Accordingly, it is ORDERED as follows:
1.

Defendant Green Tree Servicing, LLC’s Objection (Doc. # 20) is

OVERRULED.
2.

The Recommendation (Doc. # 19) is ADOPTED.

3.

Plaintiff Alyson Benjamin’s claims are DISMISSED without

prejudice due to her failure to prosecute this action and comply with orders of this
court.
A separate final judgment will be entered.
DONE this 7th day of May, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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