Acker v. Bank of New York Mellon, The

Filing 37

ORDER ADOPTING 34 REPORT AND RECOMMENDATION, dismissing this action for lack of prosecution pursuant to Fed. R. Civ. P. 41(b). Defendant's 27 Motion to Dismiss is rendered moot. Signed by Honorable Mary Geiger Lewis on 8/30/2017. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
'
'
'
vs.
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THE BANK OF NEW YORK MELLON,
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f/k/a The Bank of New York as successor
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to JP Morgan Chase Bank, National
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Association, as Indentured Trustee for the
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registered holders of ABFS Mortgage Loan
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Trust 2002-2, Mortgage-Backed Pass-Through '
Certificates, Series 2002-2, et al.,
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Defendant.
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TANOKA R. ACKER,
Plaintiff,

Civil Action No. 6:17-00980-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION, DISMISSING THIS
ACTION FOR LACK OF PROSECUTION PURSUANT TO FED. R. CIV. P. 41(b),
AND RENDERING MOOT DEFENDANT=S MOTION TO DISMISS
This case was filed as a 28 U.S.C. ' 1345 foreclosure action. Plaintiff is proceeding pro
se. The matter is before the Court for review of the Report and Recommendation (Report) of the
United States Magistrate Judge suggesting this action be dismissed for lack of prosecution pursuant
to Fed. R. Civ. P. 41(b) and Defendant=s motion to dismiss be rendered moot. The Report was
made in accordance with 28 U.S.C. ' 636 and Local Civil Rule 73.02 for the District of South
Carolina.
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de

novo determination of those portions of the Report to which specific objection is made, and the
Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge or recommit the matter with instructions. 28 U.S.C. ' 636(b)(1).
The Magistrate Judge filed the Report on August 15, 2017, but Plaintiff failed to file any
objections to the Report. A[I]n the absence of a timely filed objection, a district court need not
conduct a de novo review, but instead must >only satisfy itself that there is no clear error on the
face of the record in order to accept the recommendation.=@ Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee=s note).
Moreover, a failure to object waives appellate review. Wright v. Collins, 766 F.2d 841, 845-46
(4th Cir. 1985).
After a thorough review of the Report and the record in this case pursuant to the standard
set forth above, the Court adopts the Report and incorporates it herein. Therefore, it is the
judgment of the Court this action is DISMISSED for lack of prosecution pursuant to Fed. R. Civ.
P. 41(b), and Defendant=s motion to dismiss is accordingly RENDERED MOOT.
IT IS SO ORDERED.
Signed this 30th day of August, 2017, in Columbia, South Carolina.
s/Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
*****
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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