Williams v. Lambright, et al

Filing 37

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 32 Report and Recommendations. It is, therefore, ORDERED that Plaintiff Hazel Williams's case is DISMISSED WITHOUT PREJUDICE. Signed by District Judge Amos L. Mazzant, III on 3/20/2019. (daj, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

HAZEL WILLIAMS
v.
ALLEN M. LAMBRIGHT, SUBSTITUTE
TRUSTEE, ET AL.

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Civil Action No. 4:18-CV-219
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action,
this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
On February 12, 2019, the report of the Magistrate Judge (Dkt. #32) was entered containing
proposed findings of fact and recommendations that Plaintiff Hazel Williams’s case be dismissed
without prejudice under Federal Rule of Civil Procedure 41. Having received the report of the
Magistrate Judge, having considered Plaintiff’s Objections (Dkt. #36), and having conducted a
de novo review, the Court is of the opinion that the Magistrate Judge’s report should be adopted.
RELEVANT BACKGROUND
Plaintiff filed the instant suit on March 5, 2018, in the 429th Judicial District Court of
Collin County, Texas (Dkt. #1-1).

Plaintiff’s complaint asserts that Defendants Allen M.

Lambright, the United States Department of Agriculture (“USDA”), the United States of America,
Mortgage Electronic Registration System (“MERS”), MERSCORP, Inc., and John/Jane Does one
to infinity clouded Plaintiff’s title by seeking to conduct a foreclosure sale of the real property
located at 906 Fulbourne Drive, Anna, Texas, 75409 (the “Property”) (Dkts. #1 at p. 2; #3 at p. 19).
The United States holds a deed of trust lien and a vendor’s lien on the Property; the USDA made
a loan to Plaintiff thereby allowing her to purchase the Property (Dkt. #1). Foreclosure of the

Property was scheduled for March 6, 2018; however, after Plaintiff filed for bankruptcy; the
March 6 sale was cancelled.
On March 30, 2018, the United States removed Plaintiff’s case to the Eastern District of
Texas, Sherman Division, alleging jurisdiction pursuant to 28 U.S.C. §§ 1442(a)(1) and 1444
(Dkt. #1). On April 25, 2018, Plaintiff moved to remand (Dkt. #9). On August 24, 2018, the
Magistrate Judge recommended that Plaintiff’s Motion to Remand be denied (Dkt. #18), and on
November 21, 2018, the undersigned adopted the Report’s recommendation (Dkt. #21).
On that same date, November 21, 2018, the Court denied Defendants’ previously filed
Motion to Dismiss as moot, finding Plaintiff should be given an opportunity to amend her
complaint, and directing Plaintiff to amend her complaint (Dkt. #23). Instead of filing an amended
complaint as directed, Plaintiff filed a Notice, advising the Court of her intention to file a Rule 60
Motion asking the Court to reconsider its decision regarding remand of the instant case (Dkt. #25).
On January 28, 2019, after Plaintiff failed to file either a Rule 60 Motion or Amended Complaint,
the Court again ordered Plaintiff to amend her complaint, this time by February 11, 2019,
cautioning Plaintiff that “[n]o further extensions of this deadline shall be granted,” and “should
Plaintiff fail to comply with this order, her complaint may be recommended for dismissal under
Federal Rule of Civil Procedure 41” (Dkt. #28). In total, Plaintiff was given over 100 days to file
an amended complaint. She failed to do so. Therefore, on February 19, 2019, still having received
no amended complaint from Plaintiff, the Magistrate Judge entered a Report and
Recommendation, recommending that Plaintiff’s case be dismissed under Rule 41 (Dkt. #43). On
March 4, 2019, Plaintiff filed “Plaintiff’s Affidavit in Opposition & Rejection of Report and
Recommendation of United States Magistrate Judge Christine A. Nowak, Signed on 2/12/2019’
[sic] as Intentional Acts of Malice, Contumacy & Done Ultra Vires in Violation of 28 U.S. Code

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§ 636(C)(1), & Other Settled Law Cited Herein, the Plaintiff has Never Consented that her Original
Complaint is Properly Before this Court and Continues to Demand Remand to Local Court”
(Dkt. #36), which the Court construes as Plaintiff’s Objections to the recommendation for
dismissal.
OBJECTIONS TO REPORT AND RECOMMENDATION
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo review of those findings or recommendations to which
the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3).
Plaintiff’s Objections continue to steadfastly assert that Plaintiff does not consent to being
in federal court and she demands remand to her local court.

With respect to the instant

recommendation for dismissal, Plaintiff raises a single objection; specifically, Plaintiff objects that
“[i]t will constitute an irreparable denial of due process for this court to entertain or grant any of
the improvident and unconstitutional relief being sought by the US defendants through the
unlawful ‘adoption’ of the recommendation of the Magistrate Judge who clearly lacked authority
to act in the first place” (Dkt. #36 at p. 5). Plaintiff previously raised an identical objection to the
Magistrate Judge’s recommendation that Plaintiff’s Motion to Remand be denied
(Dkt. #20 at p. 5).
The Court finds, as it previously found in overruling Plaintiff’s objection to the
recommendation to deny remand, that Plaintiff’s argument is misplaced. “[A full Article III] judge
may designate a magistrate judge to hear and determine any pretrial matter pending before the
court, except [certain dispositive motions]” and “may also designate a magistrate judge to ...
submit to a judge of the court proposed findings of fact and recommendations for the disposition,
by a judge of the court, of any [of those excepted] motion[s].” 28 U.S.C. § 636(b)(1)(A)–(B).

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“Additionally, the Eastern District of Texas’s Local Rules also provide district judges wide latitude
in referring matters and motions for a magistrate judge’s review.” Robinson v. Texas, 4:18-CV66, 2018 WL 4057192, at *2 (E.D. Tex. Aug. 27, 2018) (Mazzant, J.) (citing E.D. Tex. Local Civil
Rule 72(d)). “Upon referral, a magistrate judge may recommend disposition of a motion to remand
to the district judge; the district judge then conducts a de novo review of those portions of the
recommendation to which parties raise specific, timely objection.”

Id. (citing 28 U.S.C.

§ 636(b)(1)(C)). The Fifth Circuit has repeatedly recognized the statutory authority to designate a
magistrate judge to consider a motion to remand. Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758,
764 (5th Cir. 2016) (“motions to remand [are] dispositive matters on which magistrate judges may
enter recommendations”). Furthermore, magistrate judges have the authority to recommend
dismissal of claims based on failure to prosecute and/or comply with court orders pursuant to Rule
41. See Hutchinson v. Box, 4:10CV240, 2011 WL 4591936, at *1 (E.D. Tex. Sept. 30, 2011) (“The
above-entitled and numbered civil action was heretofore referred to United States Magistrate Judge
Don D. Bush, who issued a Report and Recommendation concluding that this action should be
dismissed for failure to obey an order and failure to prosecute pursuant to Fed. R. Civ. P. 41(b).”);
Gharbi v. Flagstar, A-10-CV-382-LY, 2012 WL 13029373, at *1 (W.D. Tex. May 16, 2012) (“In
light of Plaintiffs’ failure to do so, the Magistrate Judge filed his Report and Recommendation on
April 11, 2012, recommending that this court dismiss this action, without prejudice, for want of
prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. To date, Plaintiffs
have failed to file an amended complaint in compliance with the Magistrate Judge’s order.”).
On April 2, 2018, the undersigned referred this case to the Magistrate Judge for pretrial
proceedings (Dkt. #2-1). On August 24, 2018, the Magistrate Judge recommended that Plaintiff’s
Motion to Remand be denied (Dkt. #18), and on February 12, 2019, the Magistrate Judge

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recommended that Plaintiff’s case be dismissed for failure to follow the Court’s orders,
specifically, for her failure to file an amended complaint. The Magistrate Judge acted within the
bounds of statutory authority in making such recommendation. See Robinson, 2018 WL 4057192,
at *2; Gharbi, 2012 WL 13029373, at *1. Plaintiff’s objection is overruled.
Moreover, Plaintiff to date, Plaintiff has failed to file an amended complaint. Although
she has filed several documents after being ordered to amend her pleading, none of these filings
constitute an amended complaint or reflect any attempt to comply with the Court’s multiple orders
to file an amended complaint. By such failure, Plaintiff has both neglected to comply with the
Court’s orders and to diligently prosecute her case, and thus dismissal of her case under Rule 41
is appropriate as recommended.
CONCLUSION
Having considered Plaintiff’s Objections (Dkt. #36), and having conducted a de novo
review, the Court adopts the Magistrate Judge’s report (Dkt. #32) as the findings and conclusions
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of the Court.
It is, therefore, ORDERED that Plaintiff Hazel Williams’s case is DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
SIGNED this 20th day of March, 2019.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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