Strickland v. Phh Mortgage

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSE STRICKLAND,
Plaintiff,
Civil Action No. 24-1015 (RDM)
v.
PHH MORTGAGE,
Defendant.
MEMORANDUM OPINION
Plaintiff Jose Strickland has failed to respond to the motion to dismiss filed by Defendant
PHH Mortgage, Dkt. 8, despite two Court orders directing him to do so, see Dkt. 9; Min. Order
(June 4, 2024). For the reasons discussed below, the Court will dismiss Plaintiff’s case without
prejudice for failure to prosecute under Federal Rules of Civil Procedure 41(b) and Local Civil
Rule 83.23.
Plaintiff, proceeding pro se, commenced this action on February 16, 2024, in D.C.
Superior Court. See Dkt. 1-1 at 2. Plaintiff named PHH Mortgage as the sole defendant. Dkt. 1-
1 at 4. He alleged that PHH Mortgage unlawfully foreclosed on his property. Id. Defendant
removed the case to this Court. Dkt. 1; see also Dkt. 5.
Defendant moved to dismiss on April 16, 2024. Dkt. 8. The Court promptly issued a
Fox/Neal order advising Plaintiff of the consequences of failing to respond timely to Defendant’s
motion and giving him until May 14, 2024, to do so. Dkt. 9. After Plaintiff failed to respond by
that date, the Court sua sponte extended his time to respond, setting a new deadline of June 18,
2024. See Min. Order (June 4, 2024). That date too has passed, and Plaintiff has failed to file
any response or to seek an extension of time.
Pursuant to Federal Rule of Civil Procedure 41(b), it is within a court’s discretion to
dismiss a complaint “[i]f the plaintiff fails to prosecute or to comply with these rules or a court
order.” Fed. R. Civ. P. 41(b). The Court may dismiss for failure to prosecute sua sponte or on a
defendant’s motion. LCvR 83.23; see also Peterson v. Archstone Communities LLC, 637 F.3d
416, 418 (D.C. Cir. 2011) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962)). The
authority to dismiss an action for failure to prosecute has long been recognized as “necessary in
order to prevent undue delays in the disposition of pending cases and to avoid congestion” in the
courts. Link, 370 U.S. at 629–30.
Dismissal is warranted when, “in view of the entire procedural history of the case, the
litigant has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor
Co., 761 F.2d 713, 714 (D.C. Cir. 1985). “A lengthy period of inactivity may . . . be enough to
justify dismissal,” especially when “the plaintiff has been previously warned that he must act
with more diligence, or if he has failed to obey the rules or court orders.” Smith-Bey v. Cripe,
852 F.2d 592, 594 (D.C. Cir. 1988). Although dismissal for failure to prosecute is a relatively
“harsh sanction . . . ordinarily limited to cases involving egregious conduct by particularly
dilatory plaintiffs,” Angellino v. Royal Family Al-Saud, 688 F.3d 771, 775 (D.C. Cir. 2012)
(quoting Peterson, 637 F.3d at 418), it is nonetheless warranted “when lesser sanctions would
not serve the interest of justice,” Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir.
1990). Moreover, dismissal without prejudice may, at times, mitigate the severity of the
sanction. Such a step, in any event, is less draconian than treating an unopposed motion to
dismiss as conceded, as this Court’s rules also permit, see Local Civil Rule 7(b) (directing that if
an opposition is not timely filed “the Court may treat the motion as conceded”); see also
MacLeod v. U.S. Dep’t of Homeland Sec., 2017 WL 4220398, at *5, *8 (D.D.C. Sept. 21, 2017)
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(describing the standard and granting a motion to dismiss as conceded), which will often operate
as an adverse adjudication on the merits, see Barnes v. District of Columbia, 42 F. Supp. 3d 111,
119–20 (D.D.C. 2014); Poblete v. Indymac Bank, 657 F. Supp. 2d 86, 90 n.2, 95–96 (D.D.C.
2009). And, it will often be less prejudicial than reaching the substance of a motion to dismiss
without the benefit of any opposing argument, which will also typically result in a decision on
the merits.
Given Plaintiff’s failure to respond to the Court’s orders and his “lengthy period of
inactivity,” dismissal for failure to prosecute is appropriate. The Court twice advised Plaintiff of
the consequences of inaction, see Dkt. 9 (Fox/Neal Order), including that the Court could
“dismiss Plaintiff’s claims for failure to prosecute,” id. at 2, and sua sponte granted a substantial
extension of the time to file a response, see Min. Order (June 4, 2024). In light of this procedural
history, the Court concludes that Plaintiff has “not manifested reasonable diligence in pursuing”
his case and that his Complaint should be dismissed. This Court’s Local Rules provide that
dismissals for failure to prosecute should be made without prejudice unless the delay in
prosecution impairs the opposing party’s interests. LCvR 83.23. The Court sees no reason to
depart from the default rule, particularly in light of Plaintiff’s pro se status. By doing so, the
Court will leave Plaintiff in the same position as if the action—which he has, to date, declined to
pursue—was never filed.
The Court will, accordingly, dismiss this case without prejudice pursuant to Federal Rule
of Civil Procedure 41(b) and Local Civil Rule 83.23. A separate order consistent with this
memorandum opinion will follow.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: June 28, 2024
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