Davis et al v. Bank of America, N.A. et al

Filing 27

MEMORANDUM ORDER adopting 23 Report and Recommendations; ; granting 4 Motion to Dismiss for Failure to State a Claim; granting 14 Motion to Dismiss for Failure to State a Claim;Clerk directed to close this case. Signed by Honorable A. Richard Caputo on 6/28/16. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD and TANYA DAVIS,
CIVIL ACTION NO. 3:CV-15-815

Plaintiffs,

(JUDGE CAPUTO)

v.

(MAGISTRATE JUDGE SCHWAB)

BANK OF AMERICA, successors by
merger to BAC Home Loans Servicing,
LP, and SHAPIRO & DENARDO, LLC,
Defendants.
MEMORANDUM ORDER
Before me is Plaintiffs Ronald and Tiffany Davis’s (“Plaintiffs”) Motion in Opposition
(Doc. 24) to the Report and Recommendation of Magistrate Judge Schwab (“R and R”)
(Doc. 23). Magistrate Judge Schwab’s R & R addresses dismissal of Plaintiffs’ pro se
Complaint. The Complaint alleges violations of their civil rights, federal criminal statutes and
Pennsylvania state law. (Doc. 1)The allegations arise from the Plaintiffs’ signing of a
promissory note secured by a mortgage and the foreclosure action that followed their
purported default of their obligations. (Id.) The Complaint is comprised of eight counts.
Plaintiffs allege malicious prosecution and violations of their civil rights under 42 U.S.C.§
1983; that Defendants engaged in a conspiracy to violate their rights under 42 U.S.C. §
1985; and that Defendants are also liable under 42 U.S.C. § 1986. (Id. at 6-9.) Plaintiffs also
allege that Defendants committed mail fraud in violation of 18 U.S.C. §§ 1341-1342 and
engaged in a conspiracy to violate Plaintiffs’ civil rights in violation of 18 U.S.C. §§ 241-242.
(Id. at 11-12.) Further, Plaintiffs allege that Defendants maliciously prosecuted1 them,

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When viewing Plaintiffs’ complaint in the light most favorable them, Plaintiffs, despite
citation to law from jurisdictions other than Pennsylvania or the Third Circuit, may have
intended to state a claim under Pennsylvania law for malicious prosecution. (See Doc. 1, 910.) Under Pennsylvania law, “[a] cause of action for malicious prosecution generally
requires proof that the defendant (1) instituted criminal proceedings against the plaintiff (2)
without probable cause (3) with malice and (4) that the proceedings terminated in favor of
the plaintiff.” Parks Miller v. Ctr. Cty., 2016 WL 2752645, at *13 (M.D. Pa. May 11, 2016)

subjected them to intentional infliction of emotional distress, and committed fraud under
Pennsylvania law. (Id. at 9-13.) Both Defendants Shapiro and Denardo, LLC, and Bank of
America filed a motion to dismiss Plaintiffs’ complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Doc. 4; Doc. 14) Plaintiffs failed to file an opposition to either motion
to dismiss, despite being ordered to do so by Magistrate Judge Schwab. (See Doc. 20)
Magistrate Judge Schwab issued an R & R, recommending the following: that the
case be dismissed pursuant to Federal Rule of Civil Procedure 41(b)2 and the Poulis3
factors, or in the alternative, dismissed based on Plaintiffs’ failure to state a claim upon
which relief can be granted. (Doc. 23, 17.) Plaintiffs’ filed an untimely objection to the R &
R. (Doc. 24) Bank of America then filed a brief in opposition to Plaintiffs’ objections

(Brann, J.) (citing Tomaskevitch v. Specialty Records Corp., 717 A.2d 30, 33 (Pa. Commw.
Ct. 1998)). Although the R & R does not specifically address dismissal of a claim for
malicious prosecution under Pennsylvania law, Defendant Bank of America argued that
dismissal was warranted because Plaintiffs failed to state a claim under Pennsylvania law
as well. (See Doc. 15, 12.) As Defendants’ motion is unopposed and there is no allegation
that criminal proceedings were ever initiated against Plaintiffs by Defendants, any possible
claim for malicious prosecution under Pennsylvania law will be dismissed as well.
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(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure
to join a party under Rule 19--operates as an adjudication on the m erits.
Fed. R. Civ. P. 41.
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The following factors are to be considered:
(1) the extent of the party 's personal responsibility; (2) the prejudice to the
adversary caused by the failure to meet scheduling orders and respond to
discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or
the attorney was willful or in bad faith; (5) the effectiveness of sanctions other
than dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense.

Poulisv. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
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requesting that Plaintiffs’ objection be overruled, that the R & R be adopted in its entirety
and the Complaint be dismissed. (Doc. 26)
I.

Legal Standards
a.

Objection to Report and Recommendation

Where objections to the Magistrate Judge's report are filed, the court must conduct
a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099,
1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the
extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6-7
(3d Cir. 1984) (emphasis added). In conducting a de novo review, the court may accept,
reject, or modify, in whole or in part, the factual findings or legal conclusions of the
magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D.
Pa. 1993). Although the review is de novo, the law permits the court to rely on the
recommendations of the magistrate judge to the extent it deems proper. See United States
v. Raddatz, 447 U.S. 667, 675–76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749
F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994).
Uncontested portions of the report may be reviewed at a standard determined by the district
court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985);
Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for
clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D.
Pa. 1998).
II.

Discussion

Although Plaintiffs filed what they deemed a motion in opposition to the R & R, the
motion is a verbatim recitation of the Complaint labeled as an opposition to the R & R.
(Compare Doc. 24 and Doc. 1) The motion fails to specifically address any of the grounds
set forth in the R & R for why dismissal is recommended. (Doc. 24) Based on Plaintiffs’ lack
of specificity, de novo review is not required, but upon such review, I will adopt the R & R
in its entirety. See Goney, 749 F. 2d at 6-7.
Magistrate Judge Schwab first deems Defendants’ motions to dismiss unopposed
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because Plaintiffs failed to file briefs in opposition to the motions as required by Local Rule
7.6, and despite a directive from the court to file responsive submissions. (Doc. 23, 3-5.);
see M.D. Pa. R. 7.6. Following Plaintiffs’ failure to comply with Magistrate Judge Schwab’s
order and in accordance with Third Circuit precedent, Magistrate Judge Schwab reviewed
the Complaint and considered the Poulis factors to determine if dismissal is proper in this
case. See Poulis, 747 F.2d at 868.
After consideration of Poulis factors, Magistrate Judge Schwab recommends
dismissal pursuant to Federal Rule of Civil Procedure 41(b). (Doc. 23, 17.) Alternatively,
Magistrate Judge Schwab recommends that Defendants’ motions to dismiss be granted
because Plaintiffs’ Complaint fails to state a claim upon which relief can be granted. (Id.)
I agree with Magistrate Judge Schwab that dismissal is proper and I will adopt her report
and recommendation, grant Defendants’ motions and dismiss Plaintiffs’ Complaint.
Accordingly, IT IS HEREBY ORDERED that:
(1)

Magistrate Judge Schwab’s Report and Recommendation (Doc. 28) is
ADOPTED.

(2)

Plaintiffs’ Objection (Doc. 29) is OVERRULED;

(3)

Defendant Bank of America’s Motion to Dismiss (Doc. 14) is GRANTED;

(4)

Defendants Shapiro and Denardo, LLC’s Motion to Dismiss (Doc. 4) is
GRANTED;

(5)

Plaintiffs’ Complaint (Doc. 1) is DISMISSED;

(6)

The Clerk of Court is directed to close this case.

June 28, 2016
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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