Disanto et al v. Wells Fargo Bank et al

Filing 8

MEMORANDUM & ORDER ADOPTING 6 REPORT AND RECOMMENDATION. Ordered by Judge Sandra L. Townes on 1/16/2015. (Barrett, C)

CLEPV' CFflC[
tiC. C!STRtCT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LOUIS DISANTO, et al.

*

IAN 20 2015 *

I ROKLY N OFFICE
MEMORANDUM & ORDER
ADOPTING
REPORT & RECOMMENDATION

Plaintiffs,
-againstWELLS FARGO BANK, et al.,

12-CV-5204 (SLT)(JO)

Defendants.
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TOWNES, United States District Judge:
On August 20, 2014, Magistrate Judge James Orenstein issued a Report and
Recommendation (R&R) recommending that this Court sua sponte dismiss all of Plaintiffs'
claims. (See ECF No. 6.) For the reasons set forth below, the Court adopts the R&R.
BACKGROUND
Plaintiffs filed this declaratory judgment action on October 17, 2012, against Wells Fargo
and six other Defendants (George Peabody Co-op Bank, Washington Mutual Bank, Americas
Wholesale Lender, Wachovia Mortgage, New Century Mortgage Corp., and Mortgage Electronic
Registration Systems, Inc.), seeking to prevent the foreclosure of Plaintiffs' residential mortgage.

(See ECF No. 1.) Plaintiffs filed an affidavit of service as to Defendant Wells Fargo on February
15, 2013. (ECF No. 4.) Based on the lack of subsequent activity in this case, Judge Orenstein
issued the following order on July 10, 2013:
A review of the docket indicates that the plaintiff has not filed proof of timely
service of the Summons and Complaint as required, see Fed. R. Civ. P. 4(1), (m), as to
defendants George Peabody Co-op Bank, Washington Mutual Bank, Americas
Wholesale Lender, Wachovia Mortgage, New Century Mortgage Corp. and Mortgage
Electronic Registration Systems, Inc. No later than July 17, 2013, the plaintiff must
either file proof of timely service on the docket or file a motion requesting an
extension of the time to effect service for good cause. See Fed. R. Civ. P. 4(m).
Failure to comply will result in a recommendation that the case against (sic) be
dismissed for failure to prosecute as to those defendants.

SE

Further, there has been no activity in this case since the summons was returned
executed on February 15, 2013 (docket entry 4) as to defendant Wells Fargo Bank.
No later than July 31, 2013, one of the following events must occur: (a) defendant
Wells Fargo Bank must file an answer, (b) the parties must file a stipulation
extending its time to answer, or (c) the plaintiff must file a request for a certificate of
default. If none of the preceding events occurs by the deadline set forth above, I will
deem the plaintiff to have abandoned the case against Wells Fargo Bank and will
promptly file a Report and Recommendation urging the assigned District Judge to
dismiss the case for failure to prosecute. The plaintiffs['] counsel is directed to
provide a copy of this order to his client and to the defendants.
(ECF No. 5.) The deadlines set by Judge Orenstein's order passed without any activity from
Plaintiffs. Judge Orenstein then ordered Plaintiffs to show cause in writing by August 8, 2013,
why he should not recommend dismissal of their action for failure to prosecute. (See Order
dated Aug. 1, 2013.) Plaintiffs filed no response.
Accordingly, Judge Orenstein recommends that this Court dismiss with prejudice
Plaintiffs' claims against Defendant Wells Fargo Bank ("Wells Fargo") for failure to prosecute,
and dismiss without prejudice the claims against all other Defendants based on Plaintiffs' failure
to effect timely service of process pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).
DISCUSSION
A district court is not required to review the factual or legal conclusions of the magistrate
judge as to those portions of a report and recommendation to which no objections are addressed.
See Thomas v. Am, 474 U.S. 140, 150 (1985). Even when no objections are filed, however,
many courts seek to satisfy themselves "that there is no clear error on the face of the record."
Fed. R. Civ. P. 72(b) advisory committee note (1983 Addition); see also Edwards v. Town of
Huntington, No. 05 Civ. 339 (NGG)(AKT), 2007 WL 2027913, at *2 (E.D.N.Y. July 11, 2007).
Plaintiffs have not filed any objections to Judge Orenstein's R&R. However, Plaintiffs did file
an affidavit of service as to all Defendants on August 23, 2013. (See ECF No. 7.) The affidavit
does not demonstrate timely service. Rather, it clearly demonstrates untimely service. Plaintiffs
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have filed nothing with the Court to demonstrate good cause for this failure and have not
requested an extension of time to effect service.
Although not required to do so, this Court has reviewed Judge Orenstein's R&R for clear
error on the face of the record. The Court finds no clear error and therefore adopts the R&R in
its entirety as the opinion of the Court pursuant to 28 U.S.C. § 636(b)(1).
CONCLUSION
For the reasons stated above, Magistrate Judge Orenstein' s Report and Recommendation
(ECF No. 6) recommending that this Court dismiss with prejudice Plaintiffs' claims against
Defendant Wells Fargo Bank for failure to prosecute and dismiss without prejudice the claims
against all other Defendants based on Plaintiffs' failure to effect timely service of process
pursuant to Federal Rules of Civil Procedure 4(m) and 4 1(b), is adopted in its entirety.
SO ORDERED.
/s/ Sandra L. Townes
SANDRA L. TOWNES
United States District Judge

Dated

4 t&'
Brooklyn, New rk

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