Whyte v. Commonwealth Financial Systems
ORDER ADOPTING 7 REPORT AND RECOMMENDATION, recommending dismissal with prejudice pursuant to Fed. R. Civ. P. 41 (b), re 1 Complaint filed by Dwayne Whyte. The Clerk of the Court is respectfully requested to enter judgment accordingly and close this case. Ordered by Judge Sandra L. Townes on 11/16/2015. (Barrett, C)
IN CLERKS OFPIC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
U.S. DISTRICT COURT E.D.N.V.
ORDER ADOPTING REPORT
COMMONWEALTH FINANCIAL SYSTEMS,
TOWNES, United States District Judge:
Plaintiff Dwayne Whyte ("Plaintiff') filed this Fair Debt Collection Practices Act
("FDCPA") case on December 3, 2014. After failing to comply with several Court orders,
Magistrate Judge Go has recommended, sua sponte, that this action be dismissed with prejudice
for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff has filed a
letter opposing dismissal. For the reasons set forth below, Plaintiff's objections are overruled
and Magistrate Judge Go's Report and Recommendation dated September 24, 2015 (the "R&R")
is adopted in its entirety.
Plaintiff filed a Complaint alleging defendant Commonwealth Financial Systems
("Defendant") violated the FDCPA by sending Plaintiff a collection notice in violation of 15
U.S.C. §1692(g) and 15 U.S.C. § 1692(f). (Complaint, Doc. 1, ¶J 13-17.) On January 29,
2014, Plaintiff filed an affidavit of service indicating that a summons was served on "Alicia
Kuzbner, who is designated by law to accept service of process on behalf of  Commonwealth
Financial Systems." (Doe. 5.) Defendant's time to answer expired and Defendant failed to
answer or otherwise appear. By electronic order entered February 3, 2015, Judge Go ordered
Plaintiff to move for entry of default or to file a status report by February 24, 2015.
On February 22, 2015, Plaintiff did request a Certificate of Default. (Doc. 6.) On
February 2, 2015, the Court's Judgment Clerk called Plaintiff's counsel to clarify the relationship
between the person served (Alicia Kuzhner) and Defendant. Plaintiff's counsel was to
investigate and report back with more information.
staff notes entered on Feb. 25, 2015.)
Plaintiff's counsel never followed up with the Judgment Clerk. On April 27, 2015, Judge Go's
law clerk called Plaintiff's counsel, who represented he was still attempting to obtain the
requested information. (R&R, Doc. 7, at 2.) By Order dated May 7, 2015, Judge Go set a May
28, 2015 deadline for Plaintiff to supplement his request for a Certificate of Default.
Scheduling Order, entered May 7, 2015.) Plaintiff failed to supplement his request for a
Certificate of default or otherwise respond to the May 7, 2015 Order. On June 1, 2015, Judge
Go issued a second Order directing Plaintiff to supplement his request for a Certificate of Default
by June 30, 2015. The Order warned Plaintiff that failure to supplement his request may result
in a recommendation for dismissal under Fed. R. Civ. P. 4(m).
Scheduling Order, entered
June 1, 2015.) On July 1, 2015, Judge Go's law clerk contacted Plaintiff's counsel for a second
time to warn that the Court would recommend dismissal if Plaintiff did not supplement his
request for a Certificate of Default with the requested information. Plaintiff failed to make the
ordered supplementation, nor has he filed any explanation for his failure or request to extend the
deadlines set by Judge Go's scheduling orders.
On September 24, 2015, Judge Go issued the R&R recommending the Court dismiss the
case pursuant to Fed. R. Civ. P. 41 (b) for failure to prosecute. Plaintiff generally opposes
dismissal on the grounds that "Plaintiff would be greatly prejudiced by the dismissal of this
action, in that it is now time barred." (Objection to R&R, Doe. 8, at 1.) Plaintiff also contends
that Defendant has intentionally avoided Plaintiff's counsel's attempts to obtain the information
required for the Clerk to enter a Certificate of Default, and has a practice of ignoring service of
litigation papers. (Id.) Thus, "the delay herein is not entirely Plaintiff's fault."
requests that the Court grant permission for Plaintiff to make "another attempt to serve the
Defendant. . ., with instructions to the process server that the relationship of the person served to
the corporate defendant be provided in the affidavit of service." (Id.)
II. Standard of Review
A district court "shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. §
636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3). After completing this review, "the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3). "In order to merit
de novo review, a party's objections must be specific rather than conclusory or general."
Danaher Corp. v. Travelers Indem. Co., No. 1O-CV-121 (JPO), 2015 WL 1647435, at *1
(S.D.N.Y. Apr. 14, 2015) (quoting DeJesus v. Comm'r of Soc. Sec., No. 13 Civ. 2251 (AJN)
(HBP), 2014 WL 5040874, at *1 (S.D.N.Y. Sept. 29, 2014)). "When a party makes only
conclusory or general objections ... the Court will review the Report strictly for clear error....
Objections to a Report must be specific and clearly aimed at particular findings in the magistrate
judge's proposal." Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487
(S.D.N.Y.2009) (citations omitted); see also Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) ("[O]bjections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original petition
will not suffice to invoke de novo review of the magistrate's recommendations.").
Plaintiff's "objections" to the R&R are neither specific, nor clearly aimed at particular
findings. Indeed, rather than objecting to any factual or legal findings of the R&R, Plaintiff
merely attempts to offer explanations and excuses for not complying with Court's orders. The
Court therefore reviews Plaintiff's objections for clear error, and finds none.
Plaintiff argues that dismissal would be prejudicial, and that the fault of the seven-month
delay lies "not entirely" with Plaintiff, because Defendant intentionally avoids service of process
as a strategy to defeat litigation. Plaintiff provides no factual basis for his claim that Defendant
has a "practice to ignore the service upon it of litigation papers," which is entirely conclusory.
(Objection to R&R, Doc. 8, at 1.) Moreover, if Defendant did have such a practice, Plaintiff
could and should have so informed the Court in response to its two scheduling orders and two
phone calls requesting that Plaintiff take action to follow up on his request for a Certificate of
Default. Instead, Plaintiff took no action for approximately seven months—not even to request
an extension of time or to explain his failure to respond—despite repeated warnings that failure
to comply with the Court's orders could result in a recommendation of dismissal.
Defendant requests that the Court grant permission for "another attempt to serve the
Defendant.. ., with instructions to the process server that the relationship of the person served to
the corporate defendant be provided in the affidavit of service."
(Id.) It is bold for Plaintiff to
now ask the Court for permission to seek the exact information the Court repeatedly asked
Plaintiff to provide in the unanswered orders. It was Plaintiff's responsibility to secure this
information in response to the requests of the Judgment Clerk and the orders of Judge Go.
When it became clear to Plaintiff he could not obtain the information, the appropriate response
would have been to write to the Court and explain the situation, rather than to simply ignore
Court orders and wait until dismissal was recommended before taking any action. "It is not the
function of this Court to chase dilatory plaintiffs while other litigants in this district seek access
to the courts." Hibbert v. Apfel, No. 99-CV-4246 (SAS), 2000 WL 977683, at *3 (S.D.N.Y.
July 17, 2000) (dismissing for lack of prosecution pursuant to Rule 41 (b) when plaintiff took no
action and failed to respond to court orders for six months.)
For the reasons explained above, Magistrate Judge Go's Report and Recommendation
dated September 24, 2015 recommending dismissal with prejudice pursuant to Fed. R. Civ. P.
41 (b) is adopted in its entirety. The Clerk of the Court is respectfully requested to enter
judgment accordingly and close this case.
/s/ Sandra L. Townes
/SANDRA L. TOWNES
United States District Judge
Brooklyn, New York
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