Torres v. Ascencio et al

Filing 10

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 2/6/15. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JORGE A. TORRES,

:

Plaintiff

:

CIVIL ACTION NO. 3:14-0349

v.

:

(MANNION, D.J.)
(SCHWAB, M.J.)

DAVID A.M. ASCENCIO, et al.,
Defendants

:
:

MEMORANDUM
Pending before the court is a complaint in which plaintiff Jorge Anibal
Torres, formerly a resident of East Stroudsburg, Pennsylvania, and currently
a resident of Ocala, Florida, claims that he paid $455,350.25 to his attorneys
in El Salvador, defendants David Amael Moran Ascenci and Smirna Salazar
de Calles, to secure the well being and release of his wife, Ana Josefa
Galvarina Ramirez Orellana, who is detained in El Salvador. Plaintiff avers
defendants promised him that his wife would be released with his payment of
money, however, he states, “through thievery, fraud, extortion and false
information [defendants have kept his] wife detained in order to secure the
[continued] payments of monies [from plaintiff].” (Doc. 1, at 2). Plaintiff further
alleges that he has been forced to sell his house in the Dominican Republic
“in order to secure the monies demanded by the defendants and [that] the

defendants have lied to the plaintiff as his wife has never been released and
is being used as collateral to keep demanding monies from the plaintiff.” (Id.).
Plaintiff seeks as relief monetary damages in the amount of
$455,350.25, and a permanent injunction refraining defendants from
contacting him to demand more money and from giving false information to
the media to damage his reputation. (Id.). Also before the court is a
recommendation from Judge Schwab that the case be dismissed without
prejudice pursuant to Federal Rule of Civil Procedure 41(b).

I.

PROCEDURAL HISTORY
On February 26, 2014, plaintiff filed a pro se complaint under 28 U.S.C.

§1332 raising claims of fraud and extortion. (Doc. 1). The plaintiff paid the
filing fee. On September 17, 2014, Judge Schwab issued an order directing
plaintiff to file a status report by October 16, 2014, advising the court whether
the defendants were properly served, and if so, on what date. (Doc. 3). The
order also stated that plaintiff’s failure to respond may result in a
recommendation that his case be dismissed for failing to prosecute. The order
mailed to plaintiff at his last known address was returned on September 30,
2014, as “Not Deliverable as Addressed” and no forwarding address was
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available. (Doc. 5). On October 20, 2014, Judge Schwab issued an order
directing plaintiff to update his address and to file his status report by
November 17, 2014. (Doc. 5). The order also stated that plaintiff’s failure to
respond will result in a recommendation that his case be dismissed. The
order, (Doc. 5), mailed to plaintiff at his last known address was returned on
October 31, 2014, as “Not Deliverable as Addressed” and no forwarding
address was available. (Doc. 6). On November 7, 2014, plaintiff filed a proof
of service and notice of change of address indicating that his address was
now in Ocala, Florida. Plaintiff also stated that he served both defendants on
March 5, 2014, by a local Salvadoran process server and by an attorney, and
he attached two proofs of service with respect to the two defendants. On
December 4, 2014, Judge Schwab issued an order directing plaintiff to file a
status report on his case by December 23, 2014. (Doc. 8). The order also
stated that plaintiff’s inaction may result in a recommendation that his case be
dismissed for failure to prosecute. The plaintiff did not timely respond to the
order and, to date he has not filed his status report nor requested an
extension of time to do so. Further, plaintiff has not taken any action on his
case since he filed his proof of service and notice of change of address on
November 7, 2014. On January 9, 2015, Judge Schwab filed a report and

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recommendation in which she recommends that plaintiff’s complaint be
dismissed pursuant to Fed.R.Civ.P.41(b) for failure to prosecute. (Doc. 9).
The plaintiff has not filed any objections to the report and recommendation.
The court notes that neither the December 4, 2014 order nor the January 9,
2015 report and recommendation of Judge Schwab mailed to plaintiff at his
updated address in Florida were returned as undeliverable.

II.

LEGAL STANDARD
Where no objection is made to a report and recommendation, the court

should, as a matter of good practice, “satisfy itself that there is no clear error
on the face of the record in order to accept the recommendation.”
Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v.
Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010) (citing Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give
some review to every Report and Recommendation)). Nevertheless, whether
timely objections are made or not, the district court may accept, not accept or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. 28 U.S.C. §636(b)(1); Local Rule 72.31. Under FRCP 41(b),
an action may be dismissed for “failure of the plaintiff to prosecute or comply
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with these rules or order of the court.” (Emphasis added).

III.

DISCUSSION
The court agrees with Judge Schwab that plaintiff has willfully failed to

prosecute his claims, and that the consequences of this failure were made
abundantly clear to him on several occasions. Since plaintiff clearly intended
to abandon his case, the typically applicable Poulis factors need not be
considered. See Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d
Cir. 1984). Nonetheless, the court concurs completely with Judge Schwab’s
analysis of the Poulis factors to this case. (Doc. 9, at 2-3).
The court has reviewed the recommendation of Judge Schwab for
dismissing plaintiff’s complaint. Because the court agrees with the sound
reasoning that led Judge Schwab to the conclusion in her report and finds no
clear error on the face of the record, the court will adopt the report in its
entirety. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: February 6, 2015
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