Battles v. JPMorgan Chase Bank et al

Filing 19

ORDER adopting Report and Recommendations re 15 Report and Recommendations.; Dismissed as moot 16 Motion to Stay. This action is DISMISSED WITHOUT PREJUDICE for failure to prosecute. All pending motions DISMISSED AS MOOT. The Clerk of Court shall enter judgment and shall then close its file in this matter.. Signed by Judge Cindy K Jorgenson on 8/15/2012.(JKM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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ERIC B. BATTLES,
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Plaintiff,
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vs.
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JP MORGAN CHASE BANK, et al.,
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Defendants.
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No. CIV 11-778-TUC-CKJ
ORDER

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On May 25, 2012, Magistrate Judge Bernardo P. Velasco issued a Report and

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Recommendation (Doc. 15) in which he recommended the action be dismissed without

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prejudice for failure to prosecute. Battles has filed an Objection.

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Pending before the Court is the Motion for Emergency Stay of Foreclosure (Doc. 16)
filed by Plaintiff Eric B. Battles (“Battles”).

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On February 24, 2012, this Court screened Battles’s Amended Complaint and found

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that a claim for a RESPA violation had been stated against JP Morgan Chase Bank. The

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Court stated:

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Battles, therefore, may arrange for service of the Complaint upon JP Morgan Chase
Bank in compliance with Fed.R.Civ.P. 4. Alternatively, Battles may choose to
submit a Second Amended Complaint to include, for example, additional defendants
or claims for relief. Any such Second Amended Complaint would be subject to
screening by the Court.
February 24, 2012, Order, p. 4. Additionally, the Court ordered:
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Battles SHALL HAVE thirty (30) days from the date of filing of this Order
to file a Second Amended Complaint. All causes of action alleged in the original
complaint which are not alleged in any amended complaint will be waived. Any

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Second Amended Complaint filed by Battles must be retyped or rewritten in its
entirety and may not incorporate any part of the original or amended complaints by
reference. Any Second Amended Complaint submitted by Battles shall be clearly
designated as an amended complaint on the face of the document;

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A defendant may be dismissed from this action, pursuant to Fed.R.Civ.P.
4(m) if Battles does not either obtain a waiver of service of the summons or
complete service of the Summons and the Third [sic] Amended Complaint on a
defendant within 120 days of the filing of the Complaint or within 60 days of the
filing of this Order, whichever is later. See Fed. R. Civ. P. 4(m).

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Id. at 5. Battles did not submit a Second Amended Complaint and, on April 16, 2012, this
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matter was referred to the Hon. Bernardo P. Velasco for all pretrial proceedings and report
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and recommendation in accordance with the provisions of 28 U. S. C. § 636(b)(1) and
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L.R.Civ.P. 72.1 and 72.2.
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On April 2, 2012, Magistrate Judge Velasco ordered Battles to show cause why “this
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case should not be DISMISSED WITHOUT PREJUDICE, for failure to serve the
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Defendants pursuant to Rule 4(m), Fed.R.Civ.P., by filing a writing with this Court on or
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before May 22, 2012.” May 2, 2012, Order, p. 2. The magistrate judge also ordered that
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the case would “be dismissed, should Plaintiff fail to timely comply with [the] Order.” Id.
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Battles did not submit any filings on or before May 22, 2012. On May 25, 2012, the
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magistrate judge issued a Report and Recommendation in which he recommended this action
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be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.
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Battles was advised that, “[p]ursuant to 28 U.S.C. §636(b), any party may serve and file
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written objections within 10 days after being served with a copy of this Report and
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Recommendation. If objections are not timely filed they may be deemed waived.” May 25,
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2012, Order, p. 4.1 On May 30, 2012, this Court extended the deadline for filing an

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objection to the Report and Recommendation. On June 1, 2012, Battles filed an Objection
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to the Report and Recommendation.
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28 U.S.C. § 636 has been amended to provide a party with 14 days after being served
with a copy an opportunity to serve and file written objections to a Report and
Recommendation.
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Battles' Objection makes no effort to remedy the service deficiency as discussed in

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the Report and Recommendation. Indeed, Battles states that he did not understand that he

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was required to notify Defendant of the pending suit; however, rather than attempting to

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complete service or request an extension of time in which to complete service, Battles

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requests a hearing on his Complaint and the pending matters. The Court agrees with the

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magistrate judge that dismissal without prejudice for failing to prosecute is appropriate.

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Accordingly, IT IS ORDERED:

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1.

The Report and Recommendation (Doc. 15) is ADOPTED.

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2.

This action is DISMISSED WITHOUT PREJUDICE for failure to prosecute.

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3.

All pending motions are DISMISSED AS MOOT.

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The Clerk of the Court shall enter judgment and shall then close its file in this

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matter.
DATED this 15th day of August, 2012.

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