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Akinsanmi v. Nationstar Mortgage

United States District Court, D. New Jersey

May 4, 2017

LAWRENCE A. AKINSANMI, Plaintiff,
v.
NATIONSTAR MORTGAGE, et al., Defendants.

          MEMORANDUM ORDER TO SHOW

          Michael A. Shipp United States District Judge.

         Order 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.

         A 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.)

(id.)[1]

         Plaintiff 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 deadline.

         Federal 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 case, namely:

(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).

         Here, 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.

         Based on the foregoing, IT IS on this 4th day of May, 2017, ORDERED that:

         1. By 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 orders.

         A. Plaintiff s submission must address the six Poulis factors.

         B. 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 ...


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