Canaday, Jr. v. Wells Fargo Bank, N.A.
MEMORANDUM ADOPTING IN PART THE REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. ORDERED that Plaintiff's case is hereby DISMISSED for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). All relief not previously granted is DENIED. Signed by District Judge Amos L. Mazzant, III on 11/14/2017. (rpc, )
United States District Court
EASTERN DISTRICT OF TEXAS
LEONARD CANADAY, JR.
WELLS FARGO BANK, N.A.
§ Civil Action No. 4:17-CV-552
§ (Judge Mazzant/Judge Nowak)
MEMORANDUM ADOPTING IN PART THE REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge Christine
Nowak in this action, this matter having been heretofore referred to the Magistrate Judge pursuant
to 28 U.S.C. § 636. On October 12, 2017, the report of the Magistrate Judge (Dkt. #19) was entered
containing proposed findings of fact and recommendations that Defendant’s Motion to Dismiss
(Dkt. #13) be GRANTED and that each of Plaintiff’s claims against Defendant be DISMISSED.
In this case, the Magistrate Judge recommended that Defendant’s Motion to Dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) be granted, which would be a decision on the merits of the
case. In the same report and recommendation, the Magistrate Judge also recommended dismissal
of the case pursuant to Rule 41(b), which is not a decision on the merits and would be a dismissal
without prejudice. In her analysis on the Rule 12(b)(6) motion, the Magistrate Judge indicates that
Plaintiff offered no evidence in opposition to the motion to dismiss. The Court rejects this finding
as the Magistrate Judge applied the wrong legal standard. In deciding a Rule 12(b)(6) motion, the
Court accepts the factual allegations in the complaint as true and Plaintiff has no obligation to
produce evidence to defeat a motion to dismiss. The Court also finds it inconsistent that the
Magistrate Judge made a decision on the merits as well as finding that Plaintiff failed to prosecute
this action. It is clear that Plaintiff is not prosecuting this case, and the proper course is to dismiss
this case pursuant to Rule 41(b). Therefore, the Court REJECTS the portion of the Magistrate
Judge’s report and recommendation that grants Defendant’s motion to dismiss.
Having received the report of the Magistrate Judge, and no objections thereto having been
timely filed, the Court is of the opinion that the findings and conclusions of the Magistrate Judge
are correct as to the Rule 41 dismissal and adopts in part the Magistrate Judge’s report as the
findings and conclusions of the Court.
It is therefore ORDERED that Plaintiff’s case is hereby DISMISSED for failure to
prosecute pursuant to Fed. R. Civ. P. 41(b).
All relief not previously granted is DENIED.
The Clerk is directed to close this civil action.
IT IS SO ORDERED.
SIGNED this 14th day of November, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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