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Barnwell v. Bank of New York

United States District Court, D. South Carolina, Charleston Division

January 8, 2018

Janice Barnwell, and C. Napoleon Brown Barnwell, Plaintiffs,
v.
Bank of New York, The Trust Under Agreement Dated 12/1/01 EQCC Trust 2001-2, Defendant.

          REPORT AND RECOMMENDATION

          MARY GORDEN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Janice Barnwell and C. Napoleon Brown Barnwell (“Plaintiffs”) are non-prisoner pro se litigants. On October 6, 2017, they filed this civil action, alleging that they have an ownership interest in a parcel of real property and that the foreclosure action against that real property amounted to a deprivation of due process pursuant to 42 U.S.C. § 1983. (DE #1, Complaint). Plaintiffs are proceeding pro se and have paid the full filing fee. This Court issued a Proper Form Order and Special Interrogatories on October 27, 2017. (DE#11).[1] Despite being furnished with blank forms and instructions, Plaintiffs have failed to respond to the Order of October 27, 2017 or otherwise bring this case into proper form, and the time for doing so expired on or about November 17, 2017.

         By Order of October 27, 2017, Plaintiff was given twenty-one (21) days, plus three (3) days for mail time, from that date to bring this case into proper form, pursuant to General Order, Case No. 3:07-mc-5015-JFA (D.S.C. Sept. 18, 2007), In Re: Procedures in Civil Actions Filed by Non-Prisoner Pro Se litigants. The Clerk of Court mailed a copy of the Order of October 27, 2017 (DE# 11) and Special Interrogatory (DE #12) to each Plaintiff at their address of record: 2310 Parklake Drive, Suite 300, Atlanta, GA 30345. The mail in which the Order and Special Interrogatory were sent to Plaintiffs was not returned. The Order of October 27, 2017 warned Plaintiffs that their failure to provide the necessary items within the timetable set forth in the Order would subject this case to dismissal. The Plaintiffs have failed to respond to this Court's Order of October 27, 2017 within the time permitted under the Order. The Plaintiffs have also not submitted any answers to the Court's Special Interrogatories, nor asked for an extension of time. The Plaintiffs' lack of response to the Order of October 27, 2017, indicates an intent to discontinue prosecuting this case and subjects this case to dismissal.

         Therefore, as Plaintiffs have failed to prosecute this case and failed to comply with the Court's Order, the case should be dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure. See Link v. Wabash R.R Co., 370 U.S. 626, 629-36 (1962).

         IT IS SO RECOMMENDED.

         Plaintiffs' attention is directed to the Important Notice on the next page:

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 7 ...


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