United States District Court, W.D. Texas, Austin Division
MARK D. MCGILLIVRAY and J.D. ROBERTSON, Trustee, Plaintiffs,
BANK OF AMERICA, N.A., as mortgage servicer; BANK OF AMERICA, N.A., as mortgagee; and MCCARTHY HOLTHUS-TEXAS, LLP; Defendants.
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Defendant Bank of America, N.A.'s
(“Bank of America”) motion to dismiss. (Dkt. 5).
Plaintiffs Mark D. McGillivray (“McGillivray”)
and J.D. Robertson (“Robertson”) (collectively,
“Plaintiffs”) have not responded to the
motion. Having considered the motion, the record,
and the relevant law, the Court finds that the motion should
courts have the authority to dismiss a complaint for failure
to prosecute. Link v. Wabash R. Co., 370 U.S. 626,
633 (1962); Fed.R.Civ.P. 41(b) (permitting a court to dismiss
an action if the plaintiff “fails to prosecute or to
comply with . . . a court order”). Although granted
expressly by Rule 41(b), this power is one inherent in the
courts, and a court may exercise it sua sponte, with
or without notice to the parties. See Gonzales v.
Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th
Cir. 1980); Rogers v. Kroger Co., 669 F.2d 317, 319
(5th Cir. 1982). Further, “[t]he authority of a federal
trial court to dismiss a plaintiff's action with
prejudice because of his failure to prosecute cannot
seriously be doubted.” Brown v. Thompson, 430
F.2d 1214, 1216 (5th Cir. 1970) (quoting Link, 370
U.S. at 629) (emphasis added). This power may be invoked when
necessary “to prevent undue delays in the disposition
of a pending case, to avoid congestion in the court's
docket, and to maintain the orderly administration of
justice. See id.; Gonzales, 610 F.2d at
247. Dismissal with prejudice is only appropriate, however,
when there is a “clear record of delay or contumacious
conduct by the plaintiff” and if “lesser
sanctions would not serve the best interests of
justice.” Callip v. Harris Cty. Child Welfare
Dep't, 757 F.2d 1513, 1519 (5th Cir. 1985) (internal
quotation marks and citation omitted). In determining whether
these two requirements are met, the court considers
“all of the circumstances of the case, and not just the
culminating incident.” Durham v. Fla. E. Coast Ry.
Co., 385 F.2d 366, 368 (5th Cir. 1967).
a foreclosure case. Mark and Denise McGillivray bought a
house (the “Property”) in 1999 with a loan (the
“Loan”) from Countrywide Home Loans, Inc.
(“Countrywide”), which was assigned to Bank of
America in 2010. (Promissory Note, Ex. A, Dkt. 5-1; Deed of
Trust, Ex. B, Dkt. 5-2; Assignment, Ex. S, Dkt.
5-3). Defendants assert, and Plaintiffs do not
dispute, that the McGillivrays have not submitted a single
payment on the Loan in over 14 years. (Mot., Dkt. 5, at 16).
Instead, the McGillivrays have repeatedly initiated
litigation for the purpose of forestalling making payments on
the Loan. In 2002, Mark McGillivray filed for Chapter 13
bankruptcy protection in the United States Bankruptcy Court
for the Western District of Texas, but his case was dismissed
because he failed to file schedules, statements of affairs,
or a plan. (Bankruptcy Order, Ex. G, Dkt. 5-7, at 2-3). In
2003, Denise McGillivray filed for Chapter 13 bankruptcy
protection in the same court; her case was similarly
dismissed for failure to file a plan. (Id. at 3).
Later in 2003, Denise McGillivray again filed for Chapter 13
bankruptcy protection in the same court, and again her case
was dismissed for failure to file a plan. (Id.). And
in 2004, Mark McGillivray filed another petition seeking
Chapter 13 bankruptcy protection in the same court, and his
case was likewise dismissed because he did not file a plan.
last bankruptcy case, the court expressly determined that
McGillivray “had no need for Chapter 13
protection.” (Id. at 4). Rather, McGillivray
and his wife had “shown a history of taking turns in
filing pro se Chapter 13 cases over the past 2-1/2 years in
order to stall Countrywide's collection efforts” on
the Loan. (Id. at 6). The court further found that
it was “clear that [McGillivray] simply wants to
litigate the issue of Countrywide's lien on the homestead
in Bankruptcy Court because it is here that he gets a free
injunction against foreclosure while the litigation is
pending.” (Id. at 5). The court concluded that
it “should not be wasting its time” on
McGillivray's dispute because “there [was] no
legitimate bankruptcy issue here at all.” (Id.
at 6). Accordingly, the court dismissed McGillivray's
bankruptcy petition with prejudice and barred him and his
wife from refiling for bankruptcy protection for one year.
(Id. at 6-7).
then began filing suit in state court and in this Court. In
2005, he sued Countrywide, Mary A. Daffin, and John Does 1-20
for 24 enumerated causes of action. (2005 Action, Ex. H, Dkt.
5-8, at 5-22). As with his bankruptcy petitions, McGillivray
requested injunctive relief preventing foreclosure.
(Id. at 20-22). After filing his third amended
complaint, McGillivray had named as defendants Ocwen Federal
Bank, FSB, and Ocwen Loan Servicing, LLC
(“Ocwen”); Countrywide; and Gregory T. Pratt
(“Pratt”); and dismissed one named defendant and
50 Doe defendants. (D. Ct. Final J., Ex. P, Dkt. 5-16, at 2).
Ocwen and Countrywide each moved for summary judgment, and
the district court judge referred those motions to a
magistrate judge for a report and recommendation. (Order on
R. & R., Ex. O, Dkt. 5-15, at 2). On April 16, 2008, the
Court granted Ocwen's and Countrywide's motions,
noting that McGillivray had failed to timely object to the
magistrate judge's report and recommendation.
(Id. at 4-5). On May 19, 2008, the Court dismissed
McGillivray's action “for lack of
prosecution” and rendered final judgment against him
because he had “failed to comply with the Western
District of Texas Local Rules and orders of the Court.”
(Order Denying Rule 59 Mot., Ex. Q, Dkt. 5-17, at 2;
see Ex. P, Dkt. 5-16, at 3). McGillivray then moved
to set aside and/or modify the final judgment against him.
(See Ex. Q, Dkt. 5-17, at 2). The Court denied this
motion, noting that “McGillivray's desire to
investigate new evidence on the eve of trial highlights his
flouting of the Court's scheduling order and his failure
to adequately prepare for and prosecute his case throughout
the three years it has been pending in this Court.”
(Id. at 3 n.1). The Fifth Circuit affirmed the
Court's summary judgment order in 2010, recognizing that
“McGillivray not only failed to make required
disclosures in a timely manner, but also failed to remedy his
noncompliance after the court had admonished him.” (5th
Cir. Order, Ex. R, Dkt. 5-18, at 9). The Fifth Circuit held
that the Court's dismissal of McGillivray's suit
against Pratt was not an abuse of discretion due to the
Court's determination “that it would be manifestly
unjust to require Pratt to proceed to trial given
McGillivray's ongoing refusal to comply with the local
rules and the court's orders.” (Id.).
after acquiring title to the Property, Bank of America
attempted to initiate foreclosure proceedings. McGillivray
brought suit in state court in 2015 challenging Bank of
America's foreclosure attempt; Bank of America removed
the case to this Court; and in 2016 the Court dismissed
McGillivray's suit. It did so because “[t]he
parties failed to respond to the magistrate judge's
order” to submit a joint proposed scheduling order, and
McGillivray additionally failed to file a response to the
magistrate judge's order that he show cause why his case
should not be dismissed for want of prosecution. (2016
Dismissal Order, Ex. W, Dkt. 5-23, at 2). Later that year,
McGillivray filed suit in state court again when, once more,
a foreclosure sale became imminent. After Bank of America
moved for summary judgment, McGillivray filed a notice of
nonsuit voluntarily dismissing his claims without prejudice.
(Not. Nonsuit, Ex. X, Dkt. 5-24, at 2). Just under a year
later, McGillivray brought the instant suit.
light of these facts, the Court finds that the circumstances
of this case justify dismissing Plaintiffs' claims with
prejudice. For nearly 17 years (since November 2002),
McGillivray has filed actions delaying the foreclosure of the
Property but has neglected to prosecute his claims. In four
separate cases over two and one-half years, the Bankruptcy
Court for the Western District of Texas dismissed the
McGillivrays' actions because they failed to file
required documents. (Ex. G, Dkt. 5-7, at 2-3). In denying the
fourth suit, the court determined that the McGillivrays had
no need for Chapter 13 bankruptcy protection, that their
misuse of Chapter 13 should not be allowed, and that it was a
waste of the court's time to continue adjudicating their
dispute. (Id. at 4-6). This Court dismissed
McGillivray's next suit-the fifth one-because he had
failed to comply with deadlines in the Local Rules, had
“flout[ed]” the Court's scheduling order, and
had failed to adequately prosecute his case for the three
years that it was pending. (Ex. Q, Dkt. 5-17, at 2, 3 n.1).
McGillivray's sixth suit was likewise dismissed because
he failed to respond to an order to show cause as to why his
case should not be dismissed for want of prosecution-an order
issued because he yet again failed to comply with deadlines
set by the Local Rules. (2016 Dismissal Order, Ex. W, Dkt.
5-23, at 2). Now in the instant case, Defendants'
motion to dismiss has been pending for over five months.
McGillivray has not responded to Defendants' motion or
participated in this litigation whatsoever since it was
removed to this Court. The Court is therefore persuaded that
“all the circumstances of this case” warrant
dismissing this action with prejudice. Durham, 385
F.2d at 368.
Court further finds that a lesser sanction is not in the best
interests of justice. McGillivray has now hauled Bank of
America into court three times. He failed to prosecute his
claims against them the first time and voluntarily dismissed
his claims the second time only to bring suit again this
third time. Consistent with the past 17 years of delay and
failure to prosecute his claims, McGillivray has failed to
participate in this litigation since its removal and has
violated deadlines provided in the Local Rules. Meanwhile, he
has still not submitted a single payment on the Loan. The
dilatory tactics must end.
these reasons, the Court GRANTS
Defendants' motion to dismiss. (Dkt. 5). All of
McGillivray's claims in this action are DISMISSED
the Court expressly warns McGillivray that continued dilatory
tactics through the court system will result in severe
 Because Plaintiffs failed to respond
to the motion, the Court may consider it as unopposed.
See W.D. Tex. Loc. R. CV-7(e)(2) (requiring party
opposed to a dispositive motion to respond within 14 days and
allowing a district court to grant the motion as unopposed if
no timely response is filed). The Court may not, however,
invoke a local rule to automatically grant an unopposed
motion that is dispositive of the litigation. See ...