Barfield et al v. Lehman Brothers Bank, FSB et al

Filing 35

REPORT AND RECOMMENDATION that the plaintiffs complaint against the only remaining defendant, Title Court Services, Inc., be dismissed for their failure to prosecute their claims, failure to respond to the Notice of Intent to Dismiss 25 , failure t o keep the court advised of their current address, andfailure to respond to the Order to Show Cause 33 . Objections to R&R due by 2/7/2010. Signed by Magistrate Judge Peggy A. Leen on 1/20/10. (Copies have been distributed pursuant to the NEF - ECS)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. (Dkt. #1). 2. 3. Plaintiffs were initially represented by counsel but are now appearing pro se. The district judge entered an order granting defendants Aurora Loan Services, LLC, and Before the court is plaintiffs' failure to respond to the court's Order to Show Cause (Dkt. #33). In the order to show cause, the plaintiffs were given until December 12, 2009 to show cause in writing why this action should not be dismissed for failure to prosecute. The plaintiffs having failed to comply with the order, the court makes the following findings and recommendation. FINDINGS The Complaint in this action was filed in state court and removed August 8, 2008 JAMES D. BARFIELD, et al., ) ) Plaintiffs, ) Case No. 2:08-cv-01032-RCJ-PAL ) vs. ) REPORT OF ) FINDINGS AND RECOMMENDATION LEHMAN BROTHERS BANK FSB, et al., ) ) Defendants. ) __________________________________________) UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Lehman Brothers Bank, FSB's Motion to Dismiss November 20, 2008 (Dkt. #21) and entered Judgment in their favor (Dkt. #22). 4. On June 23, 2009, the Clerk of the Court entered a Notice of Intent to Dismiss Pursuant

to Fed. R. Civ. P. 4(m) the complaint in this action because no proof of service had been filed as to defendant American Trust Deed Services Corp. (Dkt. #25). The notice mailed to Marcie Barfield was /// ///

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returned by the United States Postal Service as undeliverable, "unable to forward, did not resend, no current address." 5. On August 18, 2009, the district judge dismissed American Trust Deed Services Corp.

without prejudice (Dkt. #28). The Order was mailed to the plaintiffs and again returned as undeliverable, "unable to forward, no current address, did not remail." 6. The plaintiffs have failed to prosecute this action and have not kept the court advised of

their current address. 7. The court conducted a status conference in this case on November 5, 2009. Plaintiffs

were served with notice of the status conference but did not appear. Counsel for defendant Title Court Services, Inc., Xenophon Peters appeared. 8. Because the plaintiffs did not appear for the status conference and have not kept the

court advised of their current address, the court required the plaintiffs to show cause why this action should not be dismissed for their failure to prosecute. 9. The court's Order to Show Cause (Dkt. #33) cited the provisions of LR 41-1 which

provides "all civil actions that have been pending in this court for more than nine months without any proceeding of record having been taken may, after notice, be dismissed for want of prosecution on motion of counsel or by the court." 10. Plaintiff Marcie Barfield appeared in court on the date set for hearing on defendants'

Motion to Dismiss (Dkt. #5) on November 8, 2008. Since then, neither plaintiff has appeared or filed any proceeding of record. 11. The plaintiffs have not taken any action to prosecute their claims, have not responded to

the Notice of Intent to Dismiss (Dkt. #25), have not kept the court advised of their current address, and did not respond to the order to show cause. Based on the foregoing, IT IS RECOMMENDED that the plaintiffs' complaint against the only remaining defendant, Title Court Services, Inc., be dismissed for their failure to prosecute their claims, failure to respond to /// /// 2

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the Notice of Intent to Dismiss (Dkt. #25), failure to keep the court advised of their current address, and failure to respond to the Order to Show Cause (Dkt. #33). Dated this 20th day of January, 2010.

___________________________________ PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

NOTICE These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten days after being served with these findings and recommendations, any party may file written objections with the court. Pursuant to Local Rule of Practice (LR) IB 3-2(a), any party wishing to object to the findings and recommendations of a magistrate judge shall file and serve specific written objections together with points and authorities in support of those objections, within ten (10) days of the date of service of the findings and recommendations. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's Order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). The points and authorities filed in support of the specific written objections are subject to the page limitations found in LR 7-4.

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