Balcom et al v. Deutsch Bank National Trust Company et al
MEMORANDUM OPINION AND ORDER denying 10 Motion to Dismiss; denying 29 Joint Motion to Continue. ( Rule 26 Meeting Report due by 7/2/2012.) Signed by Honorable Robert T. Dawson on June 22, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ELIZABETH A. BALCOM and
CURTIS J. BALCOM
CASE No. 11-6043
DEUTSCHE BANK NATIONAL TRUST
COMPANY AS TRUSTEE FOR MORGAN
STANLEY ABS CAPITAL I, INC.
TRUST 2007-NCI MORTGAGE
SERIES 2007-NCI, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC. (MERS), AS NOMINEE FOR NEW
CENTURY MORTGAGE CORPORATION,
and OCWEN LOAN SERVICING, LLC,
SUCCESSOR SERVICER TO SAXON
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss (Doc. 10)
and Plaintiffs’ Response and Memorandum of Support.
Also before the Court is the parties’ Joint Motion to
Continue the Trial Date (Doc. 29).
For the reasons set out
below, Defendant’s Motion to Dismiss (Doc. 10) is DENIED and the
Motion for Continuance (Doc. 29) is DENIED.
On March 2, 2011, Defendants issued a Mortgagee’s Notice of
Default and Intention to Sell Plaintiffs’ home pursuant to the
Arkansas Statutory Foreclosure Act of 1987, Ark. Code Ann. §§
18-50-101, et seq.
On March 9, 2011, Plaintiff Curtis Balcom
Page 1 of 6
filed a chapter 13 bankruptcy petition, ending that non-judicial
seeking a TRO, the Complaint also alleged breach of contract,
Collection Act and Arkansas Deceptive Trade Practices Act.
remained since June 6, 2011.
counsel for Plaintiffs via email to discuss resolution of the
Plaintiffs’ counsel replied the state court action was
triggered by the chapter 13 filing.
They further advised that
On November 18, 2011, Defendants’ counsel approached
Plaintiffs’ counsel with an offer to provide a letter reflecting
Defendants would not proceed with the foreclosure without the
bankruptcy court’s authorization.
(Docs. 10, 24).
Plaintiffs’ counsel did not
The parties have not communicated
conference, no discovery and no additional settlement attempts.
Page 2 of 6
On January 19, 2012, Defendants filed a Motion to Dismiss
the action pursuant to Federal Rule of Civil Procedure 41(b),
Plaintiffs responded that it is not in the best interests of the
public, the unsecured creditors, the bankruptcy estate or the
Plaintiffs for the pending litigation to be dismissed. (Doc.
Standard of Review
plaintiff fails to prosecute or comply with the rules or a court
order, a defendant may move to dismiss the action or any claim
Unless the dismissal order states otherwise, a
dismissal under this subdivision operates as adjudication on the
Dismissal for failure to prosecute is appropriate when
there has been “a clear record of delay or contumacious conduct
by the plaintiff.”
Garland v. Peebles, 1 F.3d 683, 686 (8th
Cir. Ark. 1993)(citing Brown v. Frey, 806 F.2d 801, 803 (8th
disobedience of a court order or where a litigant has exhibited
a pattern of intentional delay.
Arnold v. ADT Sec. Services,
Inc., 627 F.3d 716, 722 (8th Cir. 2010).
Plaintiff need not
have acted in bad faith to warrant dismissal with prejudice for
failure to prosecute, but the court must find that the plaintiff
Page 3 of 6
Id. (quoting Hunt v. City of Minneapolis, 203
F.3d 524, 527 (8th Cir. 2000)).
The Court must weigh its need
whether a less severe sanction could remedy the effect of the
prejudice to the opposing party.
Smith v. Gold Dust Casino, 526
proportionate to the litigant’s transgressions.
403 F.3d 986, 990 (8th Cir. 2005).
Doe v. Cassel,
Dismissal of a complaint for
failure to prosecute is a drastic and extremely harsh sanction.
In re Popkin & Stern, 196 F.3d 933, 938 (8th Cir. 1999).
constitutes “failure to prosecute,” justifying dismissal, is not
fixed by settled rules but depends on the particular facts and
Moines, Iowa, 523 F.2d 214, 217. (8th Cir. 1975).
Defendants filed their Motion to Dismiss on January 19,
2012. (Doc. 10).
The Plaintiffs requested two extensions of
time in which to respond.
(Docs. 18, 20).
judicial economy of waiting for resolution of “identical” issues
Page 4 of 6
Plaintiffs’ attorneys filed a class action in the United States
Bankruptcy Court, Eastern District of Arkansas.
Mhoon, et al.
v. Deutsche National Bank Trust Company, No. 3:AP-01252.
voluntarily dismissed by Plaintiffs on May 29, 2012.
second related lawsuit, Deutsche National Bank Trust Company v.
Collins, Plaintiffs’ attorneys had pending a Petition to Appeal
(Texarkana Division) back to the Circuit Court of Miller County.
(Docs. 18, 20).
Plaintiffs maintained that
no action could be taken to consolidate the present case with
Collins until the Eighth Circuit ruled on the pending motion.
permission to appeal the remand.
No. 12-8007, April 11, 2012.
A jury trial in this matter is scheduled for July 16, 2012,
requested to reschedule their settlement conference, originally
scheduled for June 20, 2012.
The two related cases have now been concluded and the Court
can find no reason for further delay in this matter.
finds that the Plaintiffs’ conduct has not been so contemptuous
as to warrant the dismissal of this action.
imposed later as determined to be appropriate.
Page 5 of 6
Sanctions may be
For the foregoing reasons, IT IS HEREBY ORDERED that
the parties are to hold their Rule 26(f) conference and file
their report within ten (10) days.
The Court will issue a Final
Scheduling Order immediately thereafter.
ORDERED that Defendants’ Motion to Dismiss (Doc. 10) is DENIED
IT IS SO ORDERED this 22nd day of June, 2012.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge
Page 6 of 6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?