Ramirez et al v. CitiMortgage Inc. et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JUAN DAVID RAMIREZ and 	§
DORA M. RAMIREZ, 	§
Plaintiffs, 	§
§
v. 	§ 	No. 3:25-CV-3122-E-BW
§
CITIMORTGAGE, INC., CENLAR 	§
FSB, and ROBERT FORSTER, 	§
JEFF FLEMING, ISRAEL 	§
SAUCEDO, & RYAN 	§
BOURGEOIS, as substitute trustees, 	§
Defendants. 	§ 	Referred to U.S. Magistrate Judge1
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
For the reasons explained below, the undersigned recommends that this action
be dismissed without prejudice for failure to serve Defendants as required by Fed. R.
Civ. P. 4(m).
I. BACKGROUND
This is a lawsuit to prevent a foreclosure on real property at 1619 Caldwell
Drive in Garland, Texas. Plaintiffs, a married couple, filed this action in the 193rd
Judicial District Court of Dallas County, Texas on November 3, 2025. (See Dkt. No.
1-5 at ECF p. 2-11 (“Pet.”).) They reside at the property and allege that, on or about
August 31, 2007, they executed a Deed of Trust with Defendant CitiMortgage. (Pet.
1 This foreclosure action has been automatically referred to the undersigned
magistrate judge for case management by Special Order 3-251. (See Dkt. No. 4.)
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¶¶ 13-15.) In the petition, Plaintiffs acknowledge that they “suffered some financial
difficulties” and have “attempted to work with the mortgage company to bring the
account current.” (Id. ¶¶ 16-17.) After receiving notice of a substitute trustee sale,
Plaintiffs allege that they entered into an agreement with Mentor Capital, LLC to
purchase the property for an amount that would satisfy the mortgage owed but that
Defendants indicated that they intended to proceed with the foreclosure sale. (Id.
¶¶ 18-20.) Plaintiffs assert a single claim based on an equitable right to redemption.
(Id. ¶¶ 26-34.) In state court, they sought and obtained a temporary restraining order
preventing the foreclosure sale. (Id. ¶¶ 35-41; Dkt. No. 1-5 at ECF pp. 54-57.)
Defendants removed the action on November 14, 2025, based on diversity
jurisdiction under 28 U.S.C. § 1332(a). (Dkt. No. 1 at 2.) The state court docket did
not show that any defendant had been served with a copy of the citation and petition.
(See Dkt. Nos. 1-4, 1-5.)
Plaintiffs were represented by attorney Jerry Cole Brooks in state court.
Because he has not been admitted to practice in this Court, the Court ordered him to
either become admitted or file a motion to appear pro hac vice. (Dkt. No. 3.) On
December 8, the Court again ordered that Brooks must either seek admission or pro
hac vice status or Plaintiffs were to have other counsel appear in this action. (Dkt.
No. 7.) The Court warned that, if they took no action, the Court would consider
them to be proceeding pro se. (Id.) After Plaintiffs took no action in the time
allowed, the Court terminated Brooks from this action and deemed Plaintiffs to be
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appearing in this action pro se. (Dkt. No. 8.) The Court also extended Plaintiffs’
deadline to file a response to Defendants’ motion to dismiss until January 6, 2026.
(Id.) On January 27, 2026, the undersigned reminded Plaintiffs of their duty to serve
each defendant with a summons and copy of the complaint under Fed. R. Civ. P.
4(m) and 28 U.S.C. § 1448. (Dkt. No. 11.) The undersigned advised Plaintiffs that
the case would be subject to dismissal if Plaintiffs did not serve Defendants and file
proof of service by February 12, 2026. (Id.)
Plaintiffs have not responded to Defendants’ motion to dismiss, have not filed
proof of service for any defendant, and have taken no action in this case since it was
removed.
II. LEGAL STANDARDS
Rule 4(m). When, as here, an action is removed to federal court before the
plaintiff serves one or more defendants with process, “such process or service may be
completed or new process issued in the same manner” as a case filed in the federal
district court. See 28 U.S.C. § 1448. Fed. R. Civ. P. 4 provides that “[t]he plaintiff is
responsible for having the summons and complaint served within the time allowed
by Rule 4(m) and must furnish the necessary copies to the person who makes
service.” Fed. R. Civ. P. 4(c)(1). After effecting service, the plaintiff must file proof
of service with the court. Fed. R. Civ. P. 4(l)(1). If the plaintiff fails to serve a
defendant “within 90 days after the complaint is filed, the court—on motion or on its
own after notice to the plaintiff—must dismiss the action without prejudice against
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that defendant,” unless the plaintiff shows both (1) good cause for his failure to
timely and properly effect service and (2) good cause for the court to extend the time
for service for an appropriate period. Fed. R. Civ. P. 4(m); Lewis v. Sec’y of Pub. Safety
& Corr., 870 F.3d 365, 369 (5th Cir. 2017). “A pro se plaintiff is entitled to notice
before a district court dismisses an action, sua sponte, for failure to timely serve the
defendants under Rule 4(m).” Drgac v. Treon, No. CIV.A.H-07-4283, 2008 WL
4746984, at *1 (S.D. Tex. Oct. 27, 2008) (citing Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d
444, 446 (5th Cir. 1996)). But “[a] plaintiff's pro se status and ignorance of the law do
not constitute cause for his failure to effect service in compliance with the rules.” Id.
(citing Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)).
Rule 41(b). Fed. R. Civ. P. 41(b) “authorizes the district court to dismiss an
action sua sponte for failure to prosecute or comply with a court order.” Griggs v.
S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (citing McCullough v. Lynaugh,
835 F.2d 1126, 1127 (5th Cir. 1988)). This authority “flows from the court's inherent
power to control its docket and prevent undue delays in the disposition of pending
cases.” Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v.
Wabash R.R. Co., 370 U.S. 626 (1962)); see also Lopez v. Aransas Cnty. Indep. Sch. Dist.,
570 F.2d 541, 544 (5th Cir. 1978) (“Although [Rule 41(b)] is phrased in terms of
dismissal on the motion of the defendant, it is clear that the power is inherent in the
court and may be exercised sua sponte whenever necessary to ‘achieve the orderly
and expeditious disposition of cases.’” (quoting Link, 370 U.S. at 631)).
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“The right of self-representation does not exempt a party from compliance
with relevant rules of procedural and substantive law.” Wright v. LBA Hospitality, 754
F. App’x 298, 300 (5th Cir. 2019) (quoting Hulsey v. State of Tex., 929 F.2d 168, 171
(5th Cir. 1991)). A Rule 41(b) dismissal may be with or without prejudice. See Long
v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996).
III. ANALYSIS
This action is subject to dismissal under both Rule 4(m) and 41(b). The record
does not establish any action taken by Plaintiffs to effect service on any defendant in
this action or otherwise any steps taken to prosecute this action. The Court has
brought the failure to serve defendants to Plaintiffs’ attention, but they have not done
so in the time provided by Rule 4(m), nor have they shown any reason for failing to
serve defendants or requested—much less established good cause for—an extension
of their deadline. This case therefore should be dismissed pursuant to Rule 4(m) for
failure to timely serve the defendants.
Dismissal is also warranted under Fed. R. Civ. P. 41(b). By failing to take any
step toward the service of process and by failing to comply with court orders to
register as users of the electronic case filing system and to file a response to
Defendant’s motion (see Dkt. No. 8), Plaintiffs have failed to prosecute this lawsuit.
The undersigned concludes that, in light of the opportunities given to them to
comply and the warning given to them concerning dismissal, any lesser sanction
would be futile. The Court therefore should exercise its inherent power to prevent
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undue delays in the disposition of case and sua sponte dismiss this action without
prejudice. See Gaivehchi v. Bierman, No. 3:19-CV-980-L-BN, 2019 WL 6120137, at
*2-3 (N.D. Tex. Oct. 1, 2019), rec. adopted, 2019 WL 6118563 (N.D. Tex. Nov. 15,
2019).
IV. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that this action be
DISMISSED without prejudice for failure to timely serve the defendant with
summons and a copy of the complaint as required by Fed. R. Civ. P. 4(m) and also
pursuant to Fed. R. Civ. P. 41(b) for failure to timely prosecute the case.
SO RECOMMENDED on February 13, 2026.
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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