Adams v. Ditech Financial LLC et al

Filing 14

MEMORANDUM OPINION AND PRO TANTO DISMISSAL ORDER; Due to Plaintiff Scott G. Adams failure to prosecute and to perfect service on Defendant Fannie Mae in a timely manner, Plaintiff Scott G. Adams claims against Fannie Mae (only) are HEREBY DISMISSED WITHOUT PREJUDICE sua sponte as set out herein. Signed by Judge Virginia Emerson Hopkins on 11/15/2016. (JLC)

FILED
2016 Nov-15 AM 10:58
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SCOTT G. ADAMS,
Plaintiff,
v.
DITECH FINANCIAL LLC,
Defendant.

)
)
)
)
) Case No.: 4:16-CV-1185-VEH
)
)
)
)

MEMORANDUM OPINION AND
PRO TANTO DISMISSAL ORDER
I.

Introduction and Procedural History
Plaintiff Scott G. Adams (“Mr. Adams”), who is representing himself, initiated

this lawsuit on June 23, 2016, in the Circuit Court of Etowah County. (Doc. 1-1 at 4).1
The litigation involves allegations of wrongful foreclosure, fraud, and several other
state law

claims against fictitious parties and two expressly named

Defendants–Ditech Financial LLC (“Ditech”), as a loan servicer, and Fannie Mae
(“Fannie”), as the lender. (See generally Doc. 1-1 at 4-11). Ditech removed Mr.
Adams’s case to federal court on July 19, 2016. (Doc. 1).
Because Mr. Adams failed to ever perfect service on Fannie, on October 19,

1

All page references to Doc. 1-1 correspond with the court’s CM/ECF numbering system.

2016, the court entered an order directing him to show good cause within 21 days
why this action should not be dismissed against Fannie pursuant to FED. R. CIV. P.
4(m). (Doc. 13 at 1); see also FED. R. CIV. P. 4(m) (“If a defendant is not served
within 90 days after the complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.”). Under Rule 4(m),
the 90-day deadline2 to serve Fannie as measured by the date of Ditech’s removal
expired on October 17, 2016.
Further, the court’s 21-day show cause deadline ran on November 9, 2016. Mr.
Adams has neither filed a response, perfected service on Fannie, nor otherwise
demonstrated good cause as unambiguously required by the court. Consequently, his
case against Fannie (only) is due to be dismissed without prejudice sua sponte.
II.

Analysis
As the foregoing procedural history reveals, Mr. Adams has neither complied

with Rule 4(m) nor provided any explanation for this non-compliance. Under the
Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or any

2

Effective December 1, 2015, the time to perfect service under Rule 4(m) was reduced from
120 days to 90 days.
2

claim against it.” FED. R. CIV. P. 41(b).
Further, case law reinforces that, as a result of Mr. Adams’s failure to even
attempt to comply with the show cause order or otherwise indicate an intent that he
still wishes to pursue claims against Fannie (e.g., such as by seeking an extension of
time in which to perfect service on it), the court possesses the inherent power to
dismiss his case against Fannie sua sponte. See Link v. Wabash Railroad Co., 370
U.S. 626, 630-31, 82 S. Ct. 1386, 1389, 8 L. Ed. 2d 734 (1962) (“The authority of a
court to dismiss sua sponte for lack of prosecution has generally been considered an
‘inherent power,’ governed not by rule or statute but by the control necessarily vested
in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.”); see also Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.
1985) (“The court’s power to dismiss is an inherent aspect of its authority to enforce
its orders and insure prompt disposition of lawsuits.” (citing Link, 370 U.S. at 630-31,
82 S. Ct. at 1388-89)); cf. Gratton v. Great American Communications, 178 F.3d
1373, 1374 (11th Cir. 1999) (recognizing that court has broad authority under Rule
37 to control discovery and enforce its orders); cf. also FED. R. CIV. P. 1 (“[These
rules] should be construed, administered, and employed by the court and the parties
to secure the just, speedy, and inexpensive determination of every action and
proceeding.”) (emphasis added).
3

“While dismissal is an extraordinary remedy, dismissal upon disregard of an
order, especially where the litigant has been forewarned, generally is not an abuse of
discretion.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (emphasis added)
(citing State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir. 1982)). Here,
by virtue of its show cause order, Mr. Adams was put on notice that the court was
considering whether to dismiss his claims against Fannie for lack of prosecution and,
nonetheless, he ignored that warning and filed nothing. Even an unrepresented party’s
case against a defendant is subject to dismissal when that litigant demonstrates an
unwillingness to comply with court orders. Cf., e.g. Moon, 863 F.2d at 838 (“Moon’s
conduct and words evidence a refusal to acknowledge the authority of the magistrate
and indicate no willingness to comply with court orders.”); id. at 838 n.5 (“[A]
plaintiff who ignore[s] notices and orders of the court [is not] excused merely because
of her pro se status.” (citing Anthony v. Marion County General Hospital, 617 F.2d
1164, 1169 (5th Cir. 1980))).3
Guided by the foregoing authorities, the court concludes that dismissing Mr.
Adams’s action against Fannie “without prejudice” (rather than “with prejudice”) is
the most appropriate measure to take, given Mr. Adams’s pro se status and because

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
4

such a dismissal is consistent with the express wording of Rule 4(m). Cf. Phipps v.
Blakeny, 8 F.3d 788, 790-91 (11th Cir. 1993) (“When the record clearly demonstrates
that a plaintiff deliberately and defiantly refused to comply with several court orders
on discovery and tells the court that he will not comply in the future, a district judge
has the authority to deny that plaintiff further access to the court to pursue the case.”).
Simply put, a “without prejudice” dismissal means that the merits of Mr. Adams’s
claims against Fannie, if any, are not barred from further litigation by such an order.
III.

Conclusion
Therefore, Mr. Adams’s claims against Fannie (only) are HEREBY

DISMISSED WITHOUT PREJUDICE sua sponte due to his failure to
prosecute–more particularly, to explain why he was unable to perfect service on
Fannie in a timely manner–as provided for under the Federal Rules of Civil Procedure
and the express requirements of this court’s October 19, 2016, show cause order. Mr.
Adams’s claims against Ditech are unaffected by this ruling and remain pending.
Finally, all future pleadings or other filings shall use the case style set forth above.
DONE and ORDERED this 15th day of November, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

5