Wethy et al v. Mortgage Electronic Registration Systems et al

Filing 17

Order Adopting 13 Findings, Conclusions, and Recommendation: Movants' 12 motion to dismiss is denied without prejudice as moot. (Ordered by Chief Judge Sidney A Fitzwater on 5/20/2013) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DAVID M. WETHY, et al.,
Plaintiffs,
VS.
CAPITAL TITLE, et al.,
Defendants.

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§ Civil Action No. 3:13-CV-1265-D
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ORDER

In this action by two plaintiffs (an individual and a trust) against 11 defendants, defendants
Bank of America, N.A., Federal National Mortgage Association, and Mortgage Electronic
Registration Systems, Inc. (“Movants”) filed on April 26, 2013 a Fed. R. Civ. P. 12(b)(6) motion
to dismiss.

On the same day, the magistrate judge filed his findings, conclusions, and

recommendation (“FCR”) in which he recommends that the case be dismissed without prejudice
under Rule 41(b) for want of prosecution and for the trust-plaintiff’s failure to be represented by
counsel. Plaintiffs have filed neither a timely response to the motion to dismiss nor timely
objections to the magistrate judge’s FCR. Defendants Barrett Daffin Frappier Turner & Engel, LLP,
Brian Engel, James C. Frappier, G. Tommy Bastian, Stephen C. Porter, Lauren Christoffel, and Matt
Lindsey object to the FCR. They maintain that the court should not dismiss this case without
prejudice because plaintiff David M. Wethy (“Wethy”) is a serial filer of vexatious, frivolous, and
harassing litigation made in connection with pending foreclosure and/or eviction proceedings; his
litigation tactics impose an unreasonable burden on the courts and the defendants named in his
lawsuits; and a dismissal of this lawsuit without prejudice will allow him to continue unimpeded his
pattern of abusive litigation. They point out that they filed on April 8, 2013 a motion for pre-filing

injunction to deter Wethy from filing any additional lawsuits in the Northern District of Texas
without first obtaining permission from this court, and they request other relief, including attorney’s
fees and costs of court.
Although the court does not suggest that Wethy may not be subject to sanctions if he files
other cases in this court, the court declines to retain on its docket—for purposes of entering a form
of sanction—a case that plaintiffs are not prosecuting and that one plaintiff (the trust) cannot
prosecute except by licensed counsel, especially where the court is dismissing the case at a very
early stage of the litigation and the plaintiffs have done little more than file their complaint.
Accordingly, after making an independent review of the pleadings, files, and records in this
case, and the April 26, 2013 FCR of the magistrate judge, the court concludes that the findings and
conclusions are correct. It is therefore ordered that the findings, conclusions, and recommendation
of the magistrate judge are adopted. Movants’ April 26, 2013 motion to dismiss is denied without
prejudice as moot. This action is dismissed without prejudice by judgment filed today.
SO ORDERED.
May 20, 2013.

_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE

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