Anderson et al v. Ocwen Loan Servicing, LLC et al

Filing 28

MEMORANDUM AND ORDER magistrate judge's findings and recommendation (Filing No. 26 ) are not adopted. This matter is remanded to Judge Zwart for reconsideration of the issue of whether it should be dismissed for lack of prosecution and, if so, whether the dismissal should be with or without prejudice. Ordered by Senior Judge Richard G. Kopf. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID R. ANDERSON,
Plaintiff,
v.
OCWEN LOAN SERVICING, LLC,
and AMERICAN MODERN
INSURANCE GROUP,
Defendant.

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4:17CV3054

MEMORANDUM
AND ORDER

This matter is before the court on the findings and recommendation filed on
October 20, 2017, by Magistrate Judge Cheryl R. Zwart, who, on her own motion,
recommends “that Plaintiff’s claims be dismissed with prejudice for want of
prosecution” (Filing No. 26). Plaintiff, who is proceeding pro se, mailed a letter to
the clerk of the court which was received on November 3, 2017, and docketed as a
response to Judge Zwart’s findings and recommendation (Filing No. 27).1 From its
content, however, Plaintiff’s mailing appears to be more in the nature of a motion for
reconsideration addressed to Judge Zwart.
In light of this filing, the court at this time will not adopt Judge Zwart’s findings
and recommendation, but will instead remand this matter to her for reconsideration
of the issue of whether it should be dismissed for want of prosecution and, if so,
whether the dismissal should be with or without prejudice. See 28 U.S.C. § 636(b)(1)
(“The judge may ... recommit the matter to the magistrate judge with instructions); see
also NECivR 72.2(e) (“If the district judge remands a dispositive matter to the

1

Such a response would be timely under 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b)(2).

magistrate judge, the magistrate judge’s subsequent recommendation is also subject
to objection under this rule.”).
IT IS ORDERED:
1.

The magistrate judge’s findings and recommendation (Filing No. 26) are
not adopted.

2.

This matter is remanded to Judge Zwart for reconsideration of the issue
of whether it should be dismissed for lack of prosecution and, if so,
whether the dismissal should be with or without prejudice.

DATED this 21st day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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