Mcneil v. Deutsche Bank

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Thomas M. Mcneil
v. Civil No. 22-cv-385-SE-TSM
Detusche Bank
REPORT AND RECOMMENDATION
Plaintiff Thomas M. Mcneil brought this wrongful foreclosure
suit against defendant Deutsche Bank. Deutsche Bank removed the
suit to this court in late September 2022. In late July 2023,
Deutsche Bank moved to extend the deadline for summary judgment
motions, observing that Mr. Mcneil failed to provide initial
disclosures or respond to its discovery requests and other
correspondence. Doc. no. 10.
Considering Deutsche Bank’s assertions and given that Mr.
Mcneil had not filed anything in this suit since its September
2022 removal, the court set a show-cause hearing for August 31,
2023, regarding Mr. Mcneil’s apparent failure to prosecute his
lawsuit. The court mailed the order setting the show-cause hearing
to Mr. Mcneil’s record address, but it was returned as
undeliverable. The court held the show-cause hearing on August
31. Mr. Mcneil failed to appear.
Then, on September 5, the court issued an order (doc. no. 5)
warning Mr. Mcneil that it may recommend to the district judge
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that his case be dismissed without prejudice for failure to
prosecute unless he filed a notice of his intent to continue his
suit within 30 days. The court also mailed this order to Mr.
Mcneil’s record address, and it was again returned as
undeliverable. The 30 days the court provided have expired, and
as of the date of this report and recommendation the court received
no filing, no correspondence, nor anything which might indicate
Mr. Mcneil wishes to proceed with this suit.
A district court has inherent power to dismiss a case for
failure to prosecute. See Fed. R. Civ. P. 41(b); Torres-Álamo v.
Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007). Nevertheless, a
strong presumption exists in favor of deciding cases of their
merits, so the court should not lightly dismiss a case for failure
to prosecute. Palermo v. N.H. State Prison, Warden, No. 13-cv-
232-PB, 2015 WL 4464491, at *1 (D.N.H. July 21, 2015). To
determine whether dismissal is warranted, the court should
consider the totality of the circumstances. Id. And, in balancing
the interests of managing its docket and deciding cases on the
merits, the court should “give weight to substantive elements of
the sanction, including the severity of the party’s violation,
mitigating excuses, and repetition of the violations, as well as
procedural elements, such as notice and the opportunity to be
heard.” Benítez–García v. González–Vega, 468 F.3d 1, 5 (1st Cir.
2006); see also Diaz-Santos v. Dep’t of Educ., 108 Fed. Appx. 638,
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640-41 (1st Cir. Aug. 13, 2004) (indicating that when issue is
failure to prosecute, the court should look to whether the
plaintiff previously prosecuted his claims diligently and ensure
it provides fair warning of its inclination to dismiss).
The district judge should dismiss Mr. Mcneil’s case without
prejudice. Mr. Mcneil has not filed anything since the complaint
was removed to this court in September 2022, he has failed to
participate in discovery process, and he has not responded to
correspondence from either Deutsche Bank or this court.1 Mr.
Mcneil’s failure to take any action to move this case forward for
more than a year justifies dismissal. See Leonhardt v. Aerostar
Airport Holdings LLC, 294 F. Supp. 3d 13, 16 (D.P.R. Feb. 7, 2018)
(finding dismissal warranted when 225 days passed without any
action from the plaintiff); Palermo, 2015 WL 4464491, at *1
(dismissal warranted when approximately one year passed since
plaintiff’s last participation in the case).
The court provided warning about its inclination to recommend
dismissal by setting a show-cause hearing and by issuing an order
expressly warning Mr. Mcneil that it may do so. Mr. Mcneil failed
to appear at the show-cause hearing and failed to respond to the
1 The most recent correspondence from Mr. Mcneil reflected on
the docket is a November 4, 2022 email (doc. no. 7-1) from Mr.
Mcneil to Deutsche Bank regarding a proposed discovery plan. At
that time, Mr. Mcneil appears to have been receiving mail at his
record address.
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subsequent order warning him that the court may recommend
dismissal. Although mail sent by this court to Mr. Mcneil was
returned as undeliverable, it is Mr. Mcneil’s responsibility to
keep the court apprised of a current and correct mailing address.
See LR 83.6(e) (“All persons who do not have permission to file
electronically shall immediately notify the clerk’s office in
writing of any change of address and telephone number. Counsel or
pro se parties who fail to provide the clerk’s office with their
current contact information in accordance with this rule are not
entitled to notice.”). Thus, Mr. Mcneil’s failure to provide the
court with a correct mailing address only bolsters the grounds for
dismissal.
In sum, Mr. Mcneil’s inaction in this case alongside his
failure to provide the court with a correct mailing address are
sufficient to justify the sanction of dismissal. However, the
circumstances are not such that dismissal with prejudice would be
warranted. See Benítez–García, 468 F.3d at 5 (“Where dismissal
with prejudice is involved, it has long been our rule that a case
should not be dismissed with prejudice except ‘when a plaintiff's
misconduct is particularly egregious or extreme.’”) (quoting
Benjmain v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir.
2005)); Palermo, 2015 WL 4464491, at *2 (finding that dismissal
with prejudice was unwarranted in similar circumstances).
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Accordingly, it is recommended that the district judge dismiss
this case, without prejudice, for failure to prosecute.
Any objections to this Report and Recommendation must be filed
within 14 days of receipt of this notice. The objection period
may be extended upon motion. Only those issues raised in the
written objections are subject to review in the district court,
and any issues not preserved by such objection are precluded on
appeal. Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st
Cir. 2016) (citations omitted).
____________________________
Talesha L. Saint-Marc
United States Magistrate Judge
October 17, 2023
cc: Counsel of Record
Thomas M. Mcneil, pro se
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