Smith v. Newrez LLC dba Shellpoint Mortgage Servicing et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Sean Smith,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-1470
NEWREZ LLC DBA
SHELLPOINT MORTGAGE
SERVICING, AND BANK OF
NEW YORK MELLON, TRUSTEE
FOR CWABS ASSET-BACKED
CERTIFICATES TRUST 2005
BCS,
Defendants.
MEMORANDUM AND RECOMMENDATION
On April 1, 2025, the Court scheduled an initial scheduling conference
and ordered Plaintiff to properly serve Defendants (ECF No. 3). 	See F ED. R.
C IV. P. 4(m) (requiring defendant(s) to be served within 90 days after the filing
of the complaint). 	The Court advised Plaintiff that failure to comply could
result in the case being dismissed. (ECF No. 3 at 1). The parties were ordered
to confer and file a joint discovery/case management plan (“JDCMP”) not less
than ten (10) days before the initial scheduling conference. 	(Id.). 	The Court
rescheduled the initial conference for September 3, 2025. (ECF No. 7).
Plaintiff failed to confer on the JDCMP (ECF No. 9 at 1), failed to submit
a joint proposed scheduling order, and failed to appear at the initial scheduling
United States District Court
Southern District of Texas
ENTERED
June 30, 2026
Nathan Ochsner, Clerk
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conference. During the initial scheduling conference, Defendants informed the
Court that Plaintiff failed to participate with them in preparation of the
JDCMP. (ECF No. 12).
As such, the Court issued a Show Cause Order, ordering Plaintiff to show
cause in writing as to why this case should not be dismissed under Federal
Rule of Civil Procedure (“Rule”) 37 within fourteen (14) days from the date of
the Order. (Id. at 1). The Court advised that should Plaintiff fail to show cause
in 	writing, 	the 	Court 	would 	recommend 	the 	case 	be 	dismissed 	without
prejudice. (Id.).
Plaintiff has failed to comply with the Court’s Order. 	By failing to
comply 	with 	the 	Court 	order, 	Plaintiff 	has 	prevented 	this 	action 	from
proceeding. The Court should therefore exercise its inherent power to prevent
undue delays in the disposition of pending cases and sua sponte dismiss this
action without prejudice. See Coe v. United States, No. 3:23-cv-1627, 2023 WL
9231455, at *2 (N.D. Tex. Dec. 21, 2023), report and recommendation adopted,
No. 3:23-cv-1627, 2024 WL 150441 (N.D. Tex. Jan. 12, 2024) (“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.”).
Due to Plaintiff’s failure to comply with a Court order, the Court
RECOMMENDS the case be DISMISSED WITHOUT PREJUDICE. If this
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recommendation is adopted, the Court further RECOMMENDS DENYING
AS MOOT Defendants’ Motion to Extend Dispositive Motion Deadline (ECF
No. 13) and Defendants’ Motion for Judgment on the Pleadings (ECF No. 14).
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on June 29, 2026.
______________________________
Richard W. Bennett
United States Magistrate Judge
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