Lopa et al v. Nationstar Mortgage, LLC et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached order, the court adopts Judge Bulsara's Report and Recommendation in its entirety. All claims in the instant action are dismissed with prejudice. The Clerk o f Court is respectfully directed to enter judgment in favor of defendants, to serve a copy of the order and an appeals packet on pro se plaintiff Rosemarie Lopa at her address of record, and to close the case. Ordered by Judge Kiyo A. Matsumoto on 6/18/2018. (Flores, Diego)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRANK LOPA and ROSEMARIE LOPA
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiffs,
-againstSAFEGUARD PROPERTIES MANAGEMENT, LLC and
AURORA BANK (d/b/a AURORA LOAN SERVICES,
LLC),

14-CV-3324(KAM)(SJB)

Defendants.
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KIYO A. MATSUMOTO, United States District Judge:
Presently before the court is a Report and
Recommendation (“R&R” or the “Report and Recommendation,” ECF
No. 62) issued on May 16, 2018 by the Honorable Sanket J.
Bulsara, United States Magistrate Judge, recommending that court
dismiss plaintiff Rosemarie Lopa’s claims with prejudice
pursuant to Federal Rule of Civil Procedure (“Rule”) 16(f) and
Rule 37 for failure to appear at pre-trial conferences and
failure to obey court orders, and dismiss plaintiff Frank Lopa’s
claims with prejudice under Rule 25(a) for failure to substitute
within 90 days after the filing of a statement noting death.
(R&R at 26.)

No objections to the report and recommendation

have been submitted.
Standard of Review
Where, as here, no objection to a report and
recommendation has been filed, the district court “need only

satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); accord Covey v. Simonton, 481 F. Supp. 2d
224, 226 (E.D.N.Y. 2007) (citations omitted).
Discussion
Upon review, the court finds no clear error in Judge
Bulsara’s thorough and well-reasoned report and recommendation.
Judge Bulsara’s sound analysis and recommendation regarding the
dismissal of Rosemarie Lopa’s claims with prejudice pursuant to
Rules 16(f) and 37 properly considered four factors prescribed
by the Second Circuit, specifically (1) willfulness of the noncompliant party; (2) efficacy of lesser sanctions; (3) the
duration of non-compliance; and (4) whether the non-compliant
party was warned of the consequences of continued noncompliance.

(See R&R at 11-19 (setting forth and applying

factors); see also, e.g., Agiwal v. Mid Island Mortg. Corp., 555
F.3d 298, 302-03 (2d Cir. 2009) (citations omitted) (setting
forth factors).)

The court affirms and adopts Judge Bulsara’s

analysis and recommendation pursuant to Rules 16(f) and 37.
In addition, the court has considered two additional
factors that are applied in the context of Rule 41(b)
dismissals. The Second Circuit has articulated five factors,
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three of which overlap with Judge Bulsara’s analysis, that a
district court must consider in determining whether to exercise
its discretion to dismiss an action pursuant to Rule 41(b). 1
These Rule 41 factors are: (1) whether “the plaintiff’s failure
to prosecute caused a delay of significant duration,” (2)
whether the “plaintiff was given notice that further delay would
result in dismissal,” (3) whether further delay would likely
prejudice the defendant, (4) the balance between “the need to
alleviate court calendar congestion” and “plaintiff’s right to
an opportunity for a day in court,” and (5) the “efficacy of
lesser sanctions.”

Lewis v. Rawson, 564 F.3d 569, 576 (2d Cir.

2009) (quoting United States ex rel. Drake v. Norden Sys., Inc.,
375 F.3d 248, 254 (2d Cir. 2004)); see also Fed. R. Civ. P.
41(b) (“If the plaintiff fails to prosecute or to comply with

This order does not conclude that the factors for dismissal under Rule
41(b) are equally applicable to dismissal under Rules 16(f) or 37. Compare
World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155,
159 (2d Cir. 2012) (articulating four factors that apply “[i]n evaluating a
district court’s exercise of discretion to impose Rule 37 sanctions”
(internal quotation marks and citation omitted)) with United States ex rel.
Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (articulating
five factors that “limit a trial court’s discretion” in “dismiss[ing][a] case
for failure to prosecute under Federal Rule of Civil Procedure 41(b)”
(citations omitted)). Instead, the court discusses these factors to
emphasize the propriety of dismissal of the instant action with prejudice.
See Hamelin v. Faxton St. Luke’s Healthcare, No. 08-CV-1219, 2010 WL 3430406,
at *3 (N.D.N.Y. July 19, 2010), (“In deciding which of the available
sanctions under Rule 37(b) to award, some courts have looked for guidance to
cases decided under Rule 41(b).” (collecting cases)), report and
recommendation adopted, No. 08-CV-1219, 2010 WL 3433987 (N.D.N.Y. Aug. 27,
2010).
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these rules or a court order, a defendant may move to dismiss
the action or any claim against it.”).
Here, the report and recommendation addresses the
first, second, and fifth factors in recommending that Rosemarie
Lopa’s claims be dismissed with prejudice pursuant to Rules
16(f) and 37.

(See R&R at 17-19.)

The third and fourth factors

– prejudice to the defendant and the balance between court
calendar congestion and the plaintiff’s right to an opportunity
to a day in court – also weigh in favor of dismissal.
“[P]rejudice to defendants resulting from unreasonable
delay may be presumed.”

LeSane v. Hall’s Sec. Analyst, Inc.,

239 F.3d 206, 210 (2d Cir. 2001) (quoting Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 43 (2d Cir. 1982)).

Further, even

absent this presumption, Ms. Lopa’s dilatory conduct in this
action has clearly prejudiced defendants.

Ms. Lopa and her

prior counsel failed to comply with numerous court orders,
including orders to appear at status conferences and to provide
status reports regarding Ms. Lopa’s intentions with respect to
the instant action.

(See R&R at 11-13.)

The record makes clear that, for a period of months
from mid-2017 through early 2018, defiance of court orders and
dilatory conduct by Ms. Lopa and/or her attorney precluded
defendants from determining who, if anybody, represented Ms.
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Lopa in this action.

(See id. at 5-10; see also id. at 11-12

(detailing relevant orders that Ms. Lopa ignored).)

In light of

ethical rules governing communications with a represented party
regarding the subject matter of a representation, see N.Y.
R.P.C. Rule 4.2, lacking clarity as to whether a party is
represented and, if so, by whom, would have made it exceedingly
difficult for defendants to move this action forward.
Further, because of Ms. Lopa’s dilatory conduct, this
action has been pending for over four years with no indication
that it has progressed beyond basic paper fact discovery.

(See

R&R at 1-5; see also generally Amended Scheduling Order, ECF No.
35 (noting status of discovery as of April 17, 2015, shortly
before plaintiffs’ first attorney withdrew from this action).)
Defendants’ inability to collect information that would enable
them to determine the viability of potential defenses and/or
arrive at a view as to their potential exposure would certainly
prejudice them.

See Schwed v. Gen. Elec. Co., 193 F.R.D. 70, 72

(N.D.N.Y. 2000) (“Because plaintiffs’ chronic inaction has
interfered with defendant’s attempt to prepare its case, and
because further delay will exacerbate these hardships, the Court
concludes that defendant will indeed be prejudiced by further
delay.”).

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Turning to the balance between “the need to alleviate
court calendar congestion” and “plaintiff’s right to an
opportunity for a day in court,” Lewis, 564 F.3d at 576, the
court notes that three magistrate judges have expended
extraordinary time and resources in seeking to move the action
forward.

As detailed in the report and recommendation,

Magistrate Judges Viktor V. Pohorelsky and Peggy Kuo, to whom
this action had previously been referred for pretrial issues,
held a number of status and discovery conferences, including
several occasioned by dilatory conduct on the part of plaintiffs
and their attorneys.

(R&R at 2-5.)

Once this action was

transferred to Judge Bulsara, he too expended significant
resources on this action, including by convening multiple
hearings and conferences (for which Ms. Lopa did not appear)
(see R&R at 6-10), issuing multiple orders in an effort to spur
Ms. Lopa to act (see id.), and ultimately drafting and issuing
the report and recommendation presently before the court.
Conversely, for her part, Ms. Lopa has shown no
interest in obtaining her day in court.

The balance therefore

tips decidedly in favor of dismissal of the instant action.
Conclusion
For the reasons set forth above, the court adopts
Judge Bulsara’s Report and Recommendation in its entirety.
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All

claims in the instant action are dismissed with prejudice.

The

Clerk of Court is respectfully directed to enter judgment in
favor of defendants, to serve a copy of this order and an
appeals packet on pro se plaintiff Rosemarie Lopa at her address
of record, and to close the case.
SO ORDERED.
Dated:

June 18, 2018
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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