United States District Court, D. New Jersey
LAWRENCE A. AKINSANMI, Plaintiff,
NATIONSTAR MORTGAGE, et al., Defendants.
MEMORANDUM ORDER TO SHOW
Michael A. Shipp United States District Judge.
This matter comes before the Court upon Defendants Nationstar
Mortgage LLC ("Nationstar") and U.S. Bank,
N.A.'s ("U.S. Bank") motion to dismiss
Plaintiff Lawrence A. Akinsanmi's ("Plaintiff)
Complaint, filed on December 9, 2016. (ECF No. 6.) Nationstar
and U.S. Bank's motion to dismiss was returnable on
January 3, 2017, and Plaintiffs opposition papers were due by
December 20, 2016. Plaintiff failed to file opposition to the
motion. This matter also comes before the Court upon
Defendant Bank of America, N.A.'s ("Bank of
America") (Nationstar, U.S. Bank, and Bank of America
collectively referred to as "Defendants") motion to
dismiss Plaintiffs Complaint, filed on April 4, 2017. (ECF
No. 22.) Bank of America's motion to dismiss was
returnable on May 1, 2017, and Plaintiffs opposition papers
were due by April 17, 2017. Plaintiff failed to file
opposition to the motion.
review of the docket in this matter reflects Plaintiffs
failure to prosecute his case in a timely manner and failure
to timely and adequately respond to the Court's orders.
Significantly, on February 3, 2017, the Court issued an Order
to Show Cause. (OTSC, ECF No. 13.) The OTSC required
Plaintiff to file a response by February 17, 2017.
(Id.) The OTSC also required Plaintiff to provide
proof of service of the Complaint in compliance with Rule 4
of the Federal Rules of Civil Procedure and to set forth the
reasons for Plaintiffs failure to file a brief in opposition
to Defendants' motion to dismiss. (Id.) In
addition, the OTSC specifically provided:
To the extent that Plaintiff seeks to file an
opposition brief out of time, Plaintiff must attach
the proposed opposition brief to his
response to the Order to Show cause The opposition brief must
specifically address each of the issues raided by Defendants
in Sections A., B., and C. of their opposition brief.)
failed to file a response to the OTSC by February 17, 2017.
On February 23, 2017, counsel for Nationstar and U.S. Bank
filed correspondence indicating that Plaintiff ignored the
Court's order and requesting the Court to grant their
motion to dismiss as unopposed. (ECF No. 14.) On February 24,
2017, Plaintiffs counsel filed correspondence that stated,
"for some reason I did not see the previous filing on
February 3, 2017." (ECF No. 15.) Plaintiffs counsel also
stated, "I will make sure to complete everything in a
timely process from now on for this case. I will immediately
submit proof of service the moment it is completed."
(Id.) Plaintiffs counsel, however, failed to file a
proposed opposition brief to Nationstar and U.S. Bank's
motion to dismiss. Rather, after counsel for Nationstar and
U.S. Bank filed supplemental correspondence pointing out the
deficiencies in Plaintiffs submission (ECF No. 16), counsel
for Plaintiff stated, "if the [C]ourt orders us to
respond to the motion to dismiss . . ., we will of course do
so immediately." (ECF No. 17.) In making this
representation, Plaintiffs counsel failed to acknowledge the
portion of the Court's February 3, 2017 OTSC that clearly
required Plaintiff to attach a proposed opposition brief to
his response to the OTSC. On March 9, 2017, Plaintiff filed
affidavits of service. (ECF Nos. 19, 20.) On April 4, 2017,
Bank of America filed its motion to dismiss, to which
Plaintiff similarly failed to respond by the opposition
Rule of Civil Procedure 41(b) provides for the involuntary
dismissal of a plaintiffs case for failure to comply with a
court's rules and orders. Pmlis v. State Farm
Casualty Co. sets forth the factors that a court must
consider when deciding whether to involuntarily dismiss a
(1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by [the plaintiffs
conduct]; (3) a history of dilatoriness; (4) whether the
conduct of the party or the attorney was willful or in bad
faith; (5) the effectiveness of sanctions other than
dismissal, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim.
747F.2d863, 868(3dCir. 1984).
in spite of Plaintiff s counsel's representation that he
"[would] make sure to complete everything in a timely
process from now on for this case, " there are two
motions to dismiss before the Court that are not briefed.
Moreover, the docket reflects a history of delays and
failures to comply with the Court's orders.
on the foregoing, IT IS on this 4th day of May,
2017, ORDERED that:
May 15, 2017, Plaintiff must show cause in writing as to why
the Complaint should not be dismissed with prejudice pursuant
to Rule 41(b) for failure to comply with the Court's
Plaintiff s submission must address the six Poulis
Plaintiffs submission must indicate why Plaintiff failed to
file opposition to the pending motions to dismiss in a timely
manner. To the extent that Plaintiff seeks leave
to file opposition to Defendants' motions to dismiss
out of time, Plaintiff must attach ...