Popek v. Wells Fargo Bank, NA et al
ORDER ADOPTING REPORT AND RECOMMENDATION: It is hereby ordered that this case is dismissed with prejudice for failure to prosecute. The Clerk of Court is directed to enter judgment accordingly and close the case. Ordered by Judge Roslynn R. Mauskopf on 3/8/2017. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DAN IEL POPEK and JOANNA POPEK,
- against -
REPORT AND RECOMMENDATION
l 5-CV-6573 (RRM) (VMS)
WELLS FA RGO BANK, N.A.; UNION CENTER
NA TI ON AL BANK; CALIBER HOME LOANS ;
and JOHN DOES I THROUGH 10,
ROSL YNN R. MAUSKOPF, United States Di strict Judge.
Pl ainti ffs Daniel Popek and Joanna Popek commenced this action through counsel on
November 16, 20 15 against defendants Well s Fargo Bank, N.A. (" Wells Fargo"), Union Center
National Bank ("U nion"), and Caliber Home Loans ("Caliber") seeking rescission of a loan
agreement wi th respect to p laintiffs' home in Staten Island, New York. (See generally Comp!.
(Doc. No. 1).)
On January 27, 20 16, the magistrate judge assigned to this case, the Honorable Vera M.
Scanlon, schedul ed an initial conference for March 4, 20 16, and directed plai nti ffs ' counsel to
serve a copy of the scheduling order on Wells Fargo, Union, and Caliber, and to fil e an affidavit
of service by February 8, 2016. (See 11271201 6 Schedu ling Order (Doc. No. 5).) Plaintiffs fa iled
to comply. On February 18, 2016 , plaintiffs were agai n ordered to so do and warned that their
fai lure to do so " may result in sancti ons." (See 2118/20 16 Status Report Order.) Despite Judge
Scanlon ' s directive, plaintiffs fa iled to communicate with the Court in any manner.
Accordingly, Judge Scanlon issued an order directing plainti ffs to "show cause in writing
as to why the Court should not recommend to the District Judge that this action be dismissed for
want o f prosecution as P laintiff[ s] ha[ ve] taken no action" since the initial filing of this lawsuit.
(See 311 /20 16 Order to Show Cause.) Plaintiffs fai led to respond to the Order. On September
29, 20 16, Judge Scanlon issued a second such order to show cause. (See 912912016 Order to
Show Cause.) Again, plaintiffs failed to respond. On October 7, 2016, Judge Scanlon issued a
Report and Recommendation ("R&R") recommending that the action be d ismissed fo r failure to
prosecute. (R&R (Doc. No. 6).) Judge Scanlon reminded the parties that, pursuant to 28 U. S.C.
§ 636(b), any obj ections to the R&R had to be fil ed by October 24, 2016. That deadline passed,
and no party filed an objection.
Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Proced ure (" Rule") 72, the
Court has reviewed the R&R for clear error and, finding none, concurs w ith the R&R in its
e ntirety. See Covey v. Simonton, 48 1 F. Supp. 2d 224, 226 (E.D.N.Y. 2007).
As Judge Scanlon correctly noted, Rule 4 1(b) governs the di smissal of an actio n for
failure to prosecute, providing that '·[i]f the plaintiff fa il s to prosecute o r to comp ly w ith these
rules or a court order, a defendant may move to dismi ss the action o r any claim against it." Fed.
R. Civ. P. 4 1(b). Ru le 4 1(b) also "gives the district court authority to dismiss a plaintiffs case
sua sponte for fai lure to prosecute." leSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d
C ir. 200 1); see Storey v. O'Brien, 482 Fed. App'x 647, 648 (2d C ir. 2012). D ism issa ls pursuant
to Ru le 4 1 are w ithin the discretion of the Court. See Minnel/e v. Time Warner, 997 F.2d I 023 ,
I 027 (2d C ir. 1993) (c iting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 42 (2d C ir. 1982)).
In considering whether dismi ssal is proper, courts consider the fo llowing facto rs: (I) the
duration of plainti ff's fa ilure to comp ly with court o rders; (2) whether plainti ff was on notice tha.t
fa ilure to comply would result in dismissal; (3) whether defendant is likely to be prejudiced by
further delay in the proceedings; (4) a balancing of the court's interest in managing its docket
with the plaintiff s interest in receiving a fair chance to be heard ; and (5) whether the j udge has
adequate ly considered a sanction Jess drastic than dismissal. See Davis v. Town of Hempstead,
597 Fed. App'x 3 1, 32 (2d C ir. 2015) ; Baptiste v. Sommers, 768 F.3d 212, 2 16 (2d Cir. 2014).
Generally, no one factor is dispos itive. Id. at 216.
Here, the requisite factors, on balance, support Judge Scanlon's recommendation.
Despite having filed this action more than one year ago, plaintiffs have taken no action to move
the case forward . To date, plaintiffs have not filed affidavits of service confirming that any of
the de fe ndants have been served, no tw ithstanding their obligations under the Federal Rules and
in violation of several o rders issued by this Court to so do. Indeed, plaintiffs have fa iled to
communicate w ith the Court in any way. Judge Scan lon warned plaintiffs on two separate
occasions that their failure to take action cou ld result in dismissal. Plaintiffs fai led to respond
and have neglected this action from its ince ption. For these reasons, the balance of factors weigh
deci sively in favor of dismissal.
Accordingly, it is hereby ordered that this case is dismissed with prejudice for fai lure to
prosecute. The C lerk of Court is directed to enter judgment accordingly and close the case.
Dated: Brooklyn, New York
s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States Di strict Judge
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