United States District Court, S.D. Ohio, Western Division
M. Rose District Judge.
REPORT AND RECOMMENDATION  THAT: (1)
PRO SE PLAINTIFF'S COMPLAINT (DOC. 2) BE
DISMISSED; AND (2) THIS CASE BE TERMINATED ON THE COURT'S
MICHAEL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
civil case arises from a mortgage loan agreement previously
entered into by pro se Plaintiff Lorenzo Smith, Sr.
(“Smith”) and a successor of Defendant Bank of
America. Docs. 2, 6-1, 6-1, 6-3. In 2013, Bank of America
instituted foreclosure proceedings against Smith in the
Montgomery County, Ohio Court of Common Pleas. Doc. 6-1, 6-2.
Ultimately, the Common Pleas Court entered judgment against
Smith and the mortgaged property was sold at a Sheriff's
sale -- and such sale was confirmed by the Common Pleas Court
on April 14, 2016. Doc. 6-3.
months later, on September 13, 2016, Smith filed a complaint
in this Court asserting, in a conclusory fashion, that Bank
of America and other individual Defendants: (1) violated a
written modification agreement; (2) failed to follow all
legal procedures and regulations before instituting
foreclosure proceedings; (3) delayed action on his requested
loan modifications; (4) engaged in misleading and/or
fraudulent conduct; and (5) violated the Ohio Consumer Sales
Practices Act (“OCSPA”). Doc. 2 at PageID 17, 19.
Defendants filed a motion to dismiss Smith's pro
se complaint arguing that Smith's claims are barred
by the Rooker-Feldman doctrine and that the
OCSPA either does not apply to them or Smith fails to alleged
sufficient facts to support his conclusory
allegations. Doc. 6.
did not oppose Defendants' motion within the time for
doing so under S.D. Ohio Local Rule 7.3. Therefore, on
November 28, 2016, the undersigned directed Smith to show
cause as to why Defendants' motion should not be granted.
Doc. 9. The Court notified Smith that his failure to respond
to the Show Cause Order could result in the dismissal of his
case for failure to prosecute. Id. Smith responded
to the Court's Show Cause Order by requesting additional
time to file a memorandum in opposition. Doc. 10. The
undersigned, acting in the interest of justice, granted
Smith's request for an extension of time, ordered that he
file a memorandum in opposition on or before March 7, 2017,
and again notified him that his failure to do so could result
in a dismissal of the case for failure to prosecute. Doc. 11.
To date, pro se Plaintiff has failed to file a
memorandum in opposition to Defendants' motion to dismiss
and the time for doing so -- as generously extended by the
undersigned -- expired approximately one month ago.
upon Smith's failure to oppose Defendants' motion to
dismiss, and based upon his failure to do so as specifically
ordered by the Court, this case should be dismissed under
Fed.R.Civ.P. 41(b) for failure to prosecute. See Mabone
v. Yarbrough, No. 91-5963, 1992 WL 68236, at *1-2 (6th
Cir. Mar. 30, 1992) (affirming the district court's
dismissal of pro se Plaintiff's complaint for
failure to prosecute under Rule 41(b) where pro se
Plaintiff “failed to respond to the defendants'
motions to dismiss within the readily comprehended court
deadlines of which he was well-aware”).
alternative, dismissal is merited because Smith's pro
se claims are either barred by: the
Rooker-Feldman doctrine (as an inappropriate attempt
to challenge here what occurred in the Common Pleas Court
instead of filing an appeal in state court); by application
of collateral estoppel or res judicata (since Smith
litigated, or could have litigated, the issues or claims
presented here in the Common Pleas Court), see Duncan v.
U.S. Bank, NA, 574 F.App'x 599, 601-03 (6th Cir.
2014); and/or as a result of Smith's failure to allege
specific facts upon which his claims could plausibly be
based. See Bihn, 980 F.Supp.2d at 904.
based on all of the foregoing, the undersigned
RECOMMENDS that: (1) Plaintiff's
complaint (doc. 2) be DISMISSED; and (2)
this case be TERMINATED on the Court's
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after
being served with this Report and Recommendation. This period
is not extended by virtue of Fed.R.Civ.P. 6(d) if served on
you by electronic means, such as via the Court's CM/ECF
filing system. If, however, this Report and Recommendation
was served upon you by mail, this deadline is extended to
SEVENTEEN DAYS by application of
Fed.R.Civ.P. 6(d). Parties may seek an extension of the
deadline to file objections by filing a motion for extension,
which the Court may grant upon a showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon
matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon
or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs.
may respond to another party's objections within
FOURTEEN days after being served with a copy
thereof. As noted above, this period is not extended by
virtue of Fed.R.Civ.P. 6(d) if served on you by electronic
means, such as via the Court's CM/ECF filing system. If,
however, this Report and Recommendation was served upon you
by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed.R.Civ.P. 6(d).
to make objections in accordance with this procedure may
forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States ...