Bobby Brockington and Robert Jolly vs Wachovia et al

Filing 34

REPORT AND RECOMMENDATIONS recommending that Plaintiff's claims against Defendant Premier Properties be dismissed pursuant to Rule 41(b), Fed.R.Civ.P. Objections to R&R due by 12/22/2008. Signed by Magistrate Judge Thomas E Rogers, III on 12/04/2008. (Attachments: # 1 Notice)(dsto, )

UNITED STATES DISTRICT COURT D IS T R IC T OF SOUTH CAROLINA F LO R E N C E DIVISION B O B B Y BROCKINGTON a n d ROBERT JOLLY, ) ) ) P l a i n t i ffs , ) ) -vs) ) W A C H O V IA BANK, as trustee for the ) registered holders Aegis Asset Backed ) S e c u ritie s Trust Mortgage Pass-Through ) C e rtific a te s Series 2005-5, OCWEN ) LO A N SERVICING, LLC, a/k/a OCWEN ) F E D E R A L BANK, KORN LAW FIRM, ) S E A LS LAW FIRM, P.A., PREMIER ) P R O P E R T IE S , and others as they become ) known, ) ) D e fe n d a n t s . ) ___________________________________ ) I. IN T R O D U C T IO N In this case, Plaintiffs, who are proceeding pro se, allege causes of action for violations of the F a i r Credit Reporting Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, as well a s claims for fraud, conspiracy to commit fraud, libel, slander, and extortion. Presently before the C o u rt is Defendant Premier Properties' Motion to Dismiss and Alternatively, Motion for Severance ( D o c u m e n t # 17). Because Plaintiffs are proceeding pro se, they were advised pursuant to Roseboro v . Garrison, 528 F.3d 309 (4 th Cir. 1975), that a failure to respond to the motion could result in the m o tio n being granted, thereby ending the case. Plaintiffs have not responded to the motion. II. R U L E 41(B) DISMISSAL A complaint may be dismissed pursuant to Rule 41 (b) of the Federal Rules of Civil P r o c e d u re for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Civil Action No.: 4:08-cv-2324-TLW-TER

REPORT AND RECOMMENDATION

C a rls o n , 882 F.2d 93 (4th Cir. 1989), cert. denied 493 U.S. 1084 (1990); Chandler Leasing Corp. v. Lo p e z , 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 4 1 ( b ) , the court is required to consider four factors: (1) (2) (3 ) (4) the degree of plaintiff's responsibility in failing to respond; the amount of prejudice to the defendant; the history of the plaintiff in proceeding in a dilatory manner; and, the existence of less drastic sanctions other than dismissal.

D a v i s v. Williams, 588 F.2d 69,70 (4th Cir. 1978). In the present case, Plaintiffs are proceeding pro se so they are entirely responsible for their a c tio n s . It is solely through Plaintiffs' neglect, and not that of an attorney, that no response has been file d . Plaintiffs have not responded to Defendant Premier Properties' Motion to Dismiss. The u n d e r s ign e d concludes Plaintiffs have abandoned their claims against Premier Properties. No other re a s o n a b l e sanctions are available. Accordingly, it is recommended that Defendant Premier P ro p e rtie s be dismissed from this action pursuant to Rule 41(b), Fed.R.Civ.P. III. C O N C L U SIO N In light of the above analysis, it is recommended that Plaintiffs' claims against Defendant P re m i e r Properties be dismissed pursuant to Rule 41(b), Fed.R.Civ.P.1 s/Thomas E. Rogers, III Thomas E. Rogers, III U n ite d States Magistrate Judge D e ce m b e r 4, 2008 F lo re n c e , South Carolina

Dismissal is also appropriate pursuant to Rule 12(b)(6), Fed.R.Civ.P., because Plaintiffs have failed to state a claim against Premier Properties upon which relief could be granted.

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