JPMorgan Chase Bank National Association et al v. Morel Brito et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
JPMorgan Chase Bank, National
Association and Orlans PC
v. 	Case No. 19-cv-132-JL
Grecia J. Morel Brito and
Ben Carson, Secretary of
Housing and Urban Development
REPORT AND RECOMMENDATION
The plaintiffs initiated this interpleader action by filing
a complaint on February 6, 2019. (Doc. No. 1). On May 30, 2019,
plaintiffs’ counsel filed returns of service as to each
defendant. (Doc. Nos. 3, 4, and 5). Because there were questions
regarding whether the defendants were properly served, the clerk
of court issued a Notice Regarding Service on June 21, 2019.
(Doc. No. 6). The clerk directed plaintiff’s counsel to file,
within fourteen (14) days, an affidavit of service providing a
legal and factual basis to establish proper service. Id.
Plaintiffs’ counsel did not respond to that directive.
In a subsequent order dated January 2, 2020, the
undersigned sua sponte identified legal defects in the manner in
which the plaintiffs attempted to serve the defendants. (Doc.
No. 7). The undersigned directed the plaintiffs either to
request additional time to serve the defendants or to provide an
affidavit demonstrating that the defendants were properly and
timely served. Id. at 4-5.
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On January 17, 2020, plaintiffs filed a “Motion to Extend
Time for Performance” requesting that the court “extend the
tracking order with regard to service on Defendant Grecia J.
Morel Brito for an additional sixty (60) days in order to
continue settlement negotiation with the Defendants.” (Doc. No.
8 at 1). The court granted this motion by endorsed order dated
February 3, 2020. At the expiration of the sixty (60) day
period, the plaintiffs again took no action and made no attempt
to establish proper service of process or to request new
summonses for service.
Thus, in a final effort to allow the plaintiffs to pursue
this action, the undersigned again sua sponte afforded the
plaintiffs the opportunity to either request additional time to
serve the defendants or to provide an affidavit demonstrating
that the defendants were properly and timely served. (Doc. No.
9). That order, which was dated April 3, 2020, gave the
plaintiffs fourteen (14) days to respond. 	Id. at 2. 	Finally,
that order warned that the failure to comply with it “shall
result in the undersigned issuing a report and recommendation to
dismiss this action without prejudice for failure to prosecute.”
(Doc. No. 9 at 2). 	Once again, the plaintiffs have not
responded to that order.
Pursuant to Fed. R. Civ. P. 4(m), absent good cause, a
court may dismiss an action as to any defendant not properly
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served. In addition, “[a] district court, as part of its
inherent power to manage its own docket, may dismiss a case for
any of the reasons prescribed in Federal Rule of Civil Procedure
41(b), including failure of the plaintiff to comply with any
order of the court.” Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25
(1st Cir. 2007). The undersigned, mindful of “the strong
presumption in favor of deciding cases on the merits,” García-
Pérez v. Hosp. Metropolitano, 597 F.3d 6, 7 (1st Cir. 2010),
considers the totality of the circumstances in determining
whether dismissal is appropriate. See Díaz-Santos v. Dep’t of
Educ., 108 F. App’x 638, 640 (1st Cir. 2004).
As explained in greater detail in the order dated January
2, 2020 (Doc. No. 7), there is no basis for the undersigned to
find that either defendant has been properly served. 	Over
fifteen (15) months have passed since the initiation of this
case and the court has given the plaintiffs four opportunities
to cure service or to establish that service was proper. 	The
plaintiffs were informed by the court that noncompliance with
its last order would result in a recommendation of dismissal of
the action. (Doc. No. 9 at 2). Given the plaintiffs’ repeated
noncompliance with this court’s service orders, the undersigned
finds it appropriate to recommend that the district judge
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dismiss the action without prejudice for failure to prosecute.1
Any objections to this report and recommendation must be
filed within fourteen (14) days of being served with this
notice. See Fed. R. Civ. P. 72(b)(2). Failure to file objections
within the specified time waives the right to appeal the
district court’s order. See Santos-Santos v. Torres-Centeno, 842
F.3d 163, 168 (1st Cir. 2016).
The deputy clerk is directed to mail a courtesy copy of
this report and recommendation to the Office of the United
States Attorney for the District of New Hampshire and to
Attorney Maria C. Rogers, Law Office of Maria C. Rogers, PLLC,
350 Main Street, Suite 7, Haverhill, Massachusetts 01830.
SO ORDERED.
/s/ Daniel J. Lynch
Daniel J. Lynch
United States Magistrate Judge
Date: May 15, 2020
cc: 	Jamie Marie Welch, Esq.
1 	The undersigned declines to recommend dismissal with
prejudice. See Pomales v. Celulares Telefónica, Inc., 342 F.3d
44, 48 (1st Cir. 2003)(noting the factors a court should
consider when determining whether dismissal with prejudice for
failure to prosecute is appropriate).
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