Wilson v. Select Portfolio Servicing Inc

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
VICKIE M. WILSON, §
§
Plaintiff, §
v. §
§
Case No. 3:25-cv-01260-S-BT
SELECT PORTFOLIO SERVICING,
INC, et al.
§
§
§
Defendants. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Plaintiff Vickie M. Wilson’s Second Amended Complaint
against Defendants Select Portfolio Servicing Inc (SPS) and Noshi Properties LLC
(Noshi). See Not. Removal (ECF No. 1); Second Am. Compl. (ECF No. 30). For the
reasons stated, the District Judge should dismiss Plaintiff’s claims against Noshi
under Federal Rule of Civil Procedure 41(b).
Background
Plaintiff, proceeding pro se, initiated this case against SPS in Texas state
court seeking to stop the foreclosure of her home. See Not. Removal, Ex. C-1.
SPS filed an answer in state court and removed the action to federal court. See id.,
Ex. C-6.
On June 30, 2025, Plaintiff filed an Amended Complaint adding Noshi as an
additional defendant and asserting new claims for “violations of due process
(against both Defendants).” See First Am. Compl., Jun. 30, 2025 (ECF No. 8).
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On July 2, 2025, the Court ordered Plaintiff to serve Noshi in accordance with
Federal Rule of Civil Procedure 4. See Order, (ECF No. 16). Since then, Plaintiff
has amended her complaint again. See Second Am. Compl. (ECF No. 30). But, to
date, Plaintiff has not filed proof of service for Noshi.
Legal Standards and Analysis
Rule 41(b) allows a court to dismiss an action sua sponte for failure to
prosecute or for failure to comply with the federal rules or any court order.
Fed. R. Civ. P. 41(b); 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) (per
curiam)); accord Nottingham v. Warden, Bill Clements Unit, 837 F.3d 438, 440
(5th Cir. 2016) (failure to comply with a court order); Rosin v. Thaler, 450 F. App’x
383, 383-84 (5th Cir. 2011) (per curiam) (failure to prosecute). “This authority
[under Rule 41(b)] 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., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash, R.R. Co.,
370 U.S. 626 (1962)).
In this case, the Court ordered Plaintiff to serve Defendant Noshi and file
proof of service over seven months ago. See Order 2–3 (ECF No. 16). But Plaintiff
has not filed proof of service with the Court. Thus, she has failed to prosecute her
claims against Noshi. Cf. Callier v. Jascott Enterprises, LLC, No. EP-22-CV-
00301-FM, 2023 WL 7450433, at *3 (W.D. Tex. Oct. 3, 2023) (citing 4B
Wright & Miller’s Federal Practice and Procedure § 1137 (4th ed.)) (recognizing
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that “[f]iling an amended complaint does not toll the Rule 4(m) service period and
thereby provide an additional 90 days for service” unless a new party is added, in
which case the time period restarts as to the new party).
Recommendation
The District Judge should DISMISS without prejudice Plaintiff’s claims
against Noshi for failure to prosecute under Federal Rule of Civil Procedure 41(b).
The Clerk is directed to mail a copy of this Recommendation via certified mail,
return receipt requested to Plaintiff's address listed on the docket sheet.
SO RECOMMENDED.
February 2, 2026.
________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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). In order to be
specific, an objection must identify the specific finding or recommendation to
which objection is made, state the basis for the objection, and specify 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 judge, except upon grounds of plain error. See Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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