Sones et al v. Smay et al

Filing 9

MEMORANDUM (Attachments: # 1 R&R)(eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER ALLEN SONES
and LAURA ANN SONES,
Plaintiffs,
v.
JOHN ANDREW SMAY, et al.,
Defendants.

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4:11-cv-1073
Hon. John E. Jones III
Hon. Thomas M. Blewitt

MEMORANDUM
September 2, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Thomas M. Blewitt (Doc. 8), filed on August 11,
2011, which recommends that this action be dismissed on the basis of the
Plaintiffs’ failure to prosecute this action by failing to comply with the Court’s July
15, 2011 Order.1 No objections to the R&R have been filed by any party.2 For the
reasons set forth below, the Court will adopt the R&R and this action shall be
dismissed.
1

Alternatively, Magistrate Judge Blewitt recommends that we vacate our June 27, 2011
Order denying Plaintiffs’ Motion to Proceed in forma pauperis, grant the Plaintiffs in forma
pauperis status solely for the purpose of filing this action and dismiss the action with prejudice.
2

Objections to the R&R were due by August 29, 2011.
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I.

STANDARD OF REVIEW
When, as here, no objections are made to a magistrate judge’s report and

recommendation, the district court is not statutorily required to review the report
before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the
Third Circuit, however, “the better practice is to afford some level of review to
dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,
878 (3d Cir. 1987). “[T]he court need only 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 Henderson, 812 F.2d at 878-79 (stating
“the failure of a party to object to a magistrate's legal conclusions may result in the
loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.
Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa.
1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s
examination of this case amply confirms the Magistrate Judge’s determinations.
II.

PROCEDURAL BACKGROUND
This action was filed by pro se Plaintiffs Christopher Allen Sones and Lauren

Ann Sones alleging fraud, identity theft, extortion, collection of money under false
pretenses, terrorizing witnesses, legal malpractice and legal misrepresentation by a
court-appointed executor of an estate. Named as Defendants are John Andrew
2

Smay, Esquire, the Commonwealth of Pennsylvania and the Court of Common
Pleas, 44th Judicial District, Sullivan County Branch.
Simultaneous with the filing of the Complaint, the Plaintiffs filed a Motion
for Leave to Proceed in forma pauperis, which the Magistrate Judge found to be
deficient, inasmuch as the filing did not give sufficient information about the
Plaintiffs’ assets. Thus, on June 10, 2011, Magistrate Judge Blewitt issued an Order
(Doc. 4) requiring the Plaintiffs to supplement their motion papers. Plaintiffs failed
to supplement their motion, and thereafter, the Magistrate Judge issued an Order on
June 27, 2011 requiring them to pay the $350.00 filing fee within ten (10) days.
(Doc. 5).
On June 6, 2011, Plaintiffs filed an untimely, 8-sentence response to the
Court’s Order, stating that they, inter alia, had a bankruptcy petition pending in the
Middle District of Pennsylvania and could not pay the filing fee. The Magistrate
Judge then performed research into the Plaintiffs’ alleged bankruptcy petition and
determined that Plaintiffs did not in fact have any pending bankruptcy matters in the
Middle District of Pennsylvania. Thereafter, Magistrate Judge issued an Order on
July 15, 2011 directing the Plaintiffs to submit documentation as to the value of the
real property owned by them as well as their tax returns for 2009 and 2012.
Alternatively, the Plaintiffs were directed to pay the full filing fee. The Plaintiffs
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were warned that their case would be dismissed if they failed to comply with the
July 15, 2011 Order.
Plaintiffs failed to timely comply with the July 15, 2011 Order. Thereafter,
the Magistrate Judge, sua sponte, gave the Plaintiffs an additional sixteen days to
comply with the Order. Plaintiffs again failed to do so. On August 11, 2011,
Magistrate Judge Blewitt issued the instant R&R, recommending dismissal of the
action pursuant to F.R.C.P. 41(b), based on Plaintiffs’ failure to comply with Court
orders.
III.

DISCUSSION
As detailed in the R&R and herein, the Plaintiffs have been given multiple

opportunities by the Magistrate Judge to either pay the requisite filing fee in this
case or supplement their in forma pauperis application. Each time, Plaintiffs have
failed to timely respond to the Magistrate Judge’s directives.

F.R.C.P. 41(b)

allows for the dismissal of an action for “failure of the plaintiff to prosecute or
comply with these rules or order of court . . .” As noted by the Magistrate Judge, in
the instant matter, Plaintiffs have failed to both prosecute their action and to comply
with orders of Court.
As we have already mentioned, neither Defendant nor the Plaintiffs have
filed objections to this R&R. Because we agree with the sound reasoning that led
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the Magistrate Judge to the conclusions in the R&R, we will adopt the R&R in its
entirety.3 With a mind towards conserving judicial resources, we will not rehash the
reasoning of the Magistrate Judge; rather, we will attach a copy of the R&R to this
document, as it accurately reflects our consideration and resolution of the case sub
judice. An appropriate Order shall issue.

3

We commend Magistrate Judge Blewitt for performing a painstaking and thorough
analysis of the case sub judice. While the procedural history compounded the difficulty of doing
so, we are confident that the learned Magistrate Judge reached the appropriate conclusions.
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