Barnwell et al v. Bank of New York, The

Filing 17

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION The court adopts in part and declines to adopt in part the 15 Report and Recommendation of Magistrate Judge Mary Gordon Baker and dismisses this action without prejudice. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/25/2018. (sshe, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Janice Barnwell and C. Napoleon Brown
Barnwell,
Plaintiff,
v.
The Bank of New York, trust under
agreement dated 1211101
(EQCC Trst 2001-2)
Defendant.

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Civil Action No. 9: 17-2709-RMG

ORDER AND OPINION

This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending the complaint be dismissed without prejudice for failure to prosecute. For
the reasons set forth below, the Court adopts in part and declines to adopt in part the Report and
Recommendation, and dismisses this action without prejudice.

I.

Discussion
Plaintiffs, proceeding prose, filed this action on October 6, 2017, alleging that they have

an ownership interest in a parcel of real property and that the foreclosure action against that real
property amounted to a deprivation of due process in violation of 42 U.S.C. § 1983. The Court
issued a proper form order and special interrogatories to Plaintiffs on October 27, 2017. (Dkt.
Nos. 11 & 12.) Plaintiffs' original filing named "The Bank of New York" as Defendant and
proposed service through the South Carolina Secretary of State, but no such entity is registered
with the South Carolina Secretary of State. The proper form order required Plaintiffs to identify a
proper Defendant and to provide corresponding service forms. Plaintiffs failed to respond to the

proper form order and they failed to respond to the special interrogatories by the deadline of
November 17, 2017. On January 8, 2018, the Magistrate Judge recommended dismissal without

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prejudice for failure to prosecute and failure to comply with the orders of the Court. Plaintiffs did
not file any objections to the Report and Recommendation. Plaintiffs have not communicated with
the Court filing this action on October 6, 2017.
The Magistrate Judge recommends dismissal without prejudice under Rule 41 (b) of the
Federal Rules of Civil Procedure, which allows dismissal if "the plaintiff fails to prosecute or to
comply with these rules or a court order." Plaintiffs certainly have failed to prosecute this matter
and they have failed to comply with the orders of the Court. Dismissal without prejudice is
appropriate in this case because the unserved Defendant has not been prejudiced in any way. See
Chandler Leasing Corp. v. Lopez, 669 F.22d 919, 920 (4th Cir. 1982).
Because Defendant has never been served, however, the Court considers Rule 4(m) a more
appropriate basis for dismissal without prejudice. Rule 4(m) requires a complaint to be served
within ninety days of filing. Plaintiffs' time for service expired on January 4, 2018. The Report
and Recommendation, entered on January 8, 2018, provided the notice to Plaintiffs required by
Rule 4(m) that the action might be dismissed if not brought into proper form including, inter alia,
effective service forms. Rule 4(m) is a better basis for dismissal than Rule 41(b) because Rule
4(m) specifically addresses failure to effect proper service within a time limit, while Rule 41 (b) is
a more general catchall provision. See RadLax Gateway Hotel, LLC v. Amalgamated Bank, 566
U.S. 639, 645 (2012) (holding the "general/specific canon" applies where "a general authorization
and a more limited, specific authorization exist side-by-side").
The Court therefore declines to adopt the recommendation that the Court dismiss this action
without prejudice under Rule 41 (b) and instead dismisses this action without prejudice under Rule
4(m) for failure to serve within the required time. The Report and Recommendation is otherwise
adopted in full.

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II.

Conclusion

For the foregoing reasons, the Court ADOPTS IN PART AND DECLINES TO ADOPT
IN PART the Report and Recommendation of the Magistrate Judge (Dkt. No. 15) and
DISMISSES WITHOUT PREJUDICE the complaint.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
January ~ 2018
Charleston, South Carolina

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