Byers v. Bank of America NA et al

Filing 23

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 6 MOTION re 5 MOTION to Dismiss and Brief in Support Thereof MOTION re 5 MOTION to Dismiss and Brief in Support Thereof filed by Bank of America NA, ReconTrust Company NA, The Bank of New York Mellon NA, 5 MOTION to Dismiss and Brief in Support Thereof filed by Bank of America NA, ReconTrust Company NA, The Bank of New York Mellon NA.. Signed by Magistrate Judge Don D. Bush on 8/6/2012. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
SCOTTY BYERS

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Plaintiff,
VS.
BANK OF AMERICA NEW YORK
MELLON, BANK OF AMERICA, N.A.,
and RECONTRUST COMPANY, N.A.
Defendants.

Case No. 4:12cv143

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Now before the Court are Defendants Bank of America, N.A., The Bank of New York
Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWABS, Inc.,
Asset-Backed Certificates, Series 2005-11and Recontrust Company, N.A.’s Motion to Dismiss (Dkt.
5) and Defendants’ Motion to Expunge Lis Pendens (Dkt. 6). As set forth below, the Court finds
that the request for dismissal should be GRANTED and the case should be dismissed for want of
prosecution. The Court finds that the motion to expunge lis pendens (Dkt. 6) should be DENIED
without prejudice to re-filing in a forum of proper jurisdiction.
Plaintiff filed this action in Collin County, Texas on March 1, 2012. Defendants removed
the case to this Court on March 15, 2012. Defendants filed their motion to dismiss on March 19,
2012.
On April 2, 2012, the Court entered an order directing the parties to confer as required by
Federal Rule of Civil Procedure 26(f) and to submit a Rule 26(f) report and proposed scheduling

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order no later than May 28, 2012. See Dkt. 8. Plaintiff failed to comply with this original deadline.
On June 4, 2012, the Court issued an order directing Plaintiff’s counsel to confer and to submit a
proposed scheduling order as directed on or before June 11, 2012. See Dkt. 17. On June 11, 2012,
Plaintiff’s counsel notified the Court that he had resigned from the practice of law. On June 14,
2012, the Court entered an order indicating that Plaintiff would proceed pro se and staying the case
to allow Plaintiff time to retain counsel. See Dkt. 19. The order further directed pro se Plaintiff to
confer in accordance with Rule26(f) and submit a proposed scheduling order as previously directed
on or before July 18, 2012 and indicated that failure to comply with those deadlines may result in
dismissal of the case. Id. Pro se Plaintiff acknowledged receipt of the order on June 20, 2012. See
Dkt. 20.
Plaintiff failed to comply with the order and has taken no action in the case since the
withdrawal of his counsel. Defendants have also recently notified that the Court that neither
Plaintiff, nor his counsel, has attempted to contact Defendants’ counsel to confer pursuant to Rule
26(f). See Dkt. 21.
The Court notes that on August 3, 2012 – more than two weeks after the Court’s most recent
deadline – a Notice of Appearance of counsel for Plaintiff was filed by Gagndeep K. Seth. See Dkt.
22. Counsel has not made any other filings in an effort to comply with this Court’s orders.
Because Plaintiff has wholly failed to comply with the undersigned’s orders, the Court finds
that this matter should be dismissed for want of prosecution. See FED . R. CIV . P. 41(b); Larson v.
Scott, 157 F.3d 1030, 1031 (5th Cir. 1998) (“A district court sua sponte may dismiss an action for
failure to prosecute or to comply with any court order.”).

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Therefore, the Court finds that Defendants Bank of America, N.A., The Bank of New York
Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CWABS, Inc.,
Asset-Backed Certificates, Series 2005-11and Recontrust Company, N.A.’s Motion to Dismiss (Dkt.
5) should be GRANTED in part and that case should be dismissed for want of prosecution.
As to Defendants’ Motion to Expunge Lis Pendens (Dkt. 6), it should be DENIED without
prejudice. Defendants rely on a provision of the Texas Property Code as the authority for their
requested relief, but have not shown how this Court is the court of proper jurisdiction to seek such
relief. Based on the recommendation that the case be dismissed for want of prosecution, the Court
finds the expunction is a matter better raised in the county where the lis pendens is filed.
Any pretrial deadlines are hereby ABATED and the Court will not enter a scheduling order
in this matter pending the District Judge’s consideration of this report and recommendations. Should
the matter not be dismissed, the parties are directed to file an amended proposed scheduling order
within thirty (30) days of the District Judge’s disposition of the motion to dismiss.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge.
28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained
in this report within fourteen days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest

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injustice. Thomas v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th
Cir. 1988).
SIGNED this 6th day of August, 2012.
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DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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