Opinion
CIVIL 15-1641CCC
04-12-2017
BANCO POPULAR DE PUERTO RICO Plaintiff v. FERNANDO LUIS ROSADO-RAMIREZ, MARIA ISABEL RIVERA-VAZQUEZ, and the conjugal partnership constituted between them Defendants v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Doral Bank Counterclaim-Defendant
OPINION AND ORDER
Before the Court is plaintiff Federal Deposit Insurance Corporation, as Receiver of Doral Bank's ("FDIC-R's") Motion to Dismiss Counterclaim for Lack of Prosecution (d.e. 18) filed on February 8, 2017. The motion is unopposed. For the reasons stated below, the Court GRANTS plaintiff's motion to dismiss.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 2013, prior to FDIC-R's appointment as receiver of Doral Bank, Doral Bank commenced a foreclosure action against defendant María Isabel Rivera-Vázquez ("Rivera-Vázquez") and Fernando Luis Rosado-Ramírez ("Rosado-Ramírez") and their conjugal partnership in the Commonwealth of Puerto Rico Court of First Instance, Ponce Part. On September 26, 2014, defendant Rivera-Vázquez filed a counterclaim in said court alleging that Doral Bank had failed to notify her that the loan was in arrears and that the purpose of Doral's complaint was to deprive her of her mortgaged property. On February 27, 2015, the FDIC-R was appointed receiver of Doral Bank.
Doral Bank was closed by the Office of the Commissioner of Financial Institutions of the Commonwealth of Puerto Rico on the same date. By operation of federal law, the FDIC-R, as receiver, succeeded to all of Doral's rights, titles, powers, privileges, assets, and liabilities, including Doral's interests and status as a party in this pending action. See 12 U.S.C. §§ 1821(d)(2)(A) and 1821(d)(2)(B). --------
On May 26, 2015, the FDIC-R removed the instant case to this Court. (d.e. 1). On October 17, 2016, this Court entered an order substituting Banco Popular de Puerto Rico as plaintiff in place of Doral Bank, and FDIC in place of Doral Bank as counterclaim defendant. (d.e. 16). As of this date, Rivera-Vázquez has not entered an appearance, or filed any documents FDIC-R moves to dismiss defendant's counterclaim pursuant to Rule 41(b) and (c) of the Federal Rules of Civil Procedure on the grounds that defendant has failed to prosecute the case.
II. DISCUSSION
Rule 41(b) provides for the involuntary dismissal of an action: "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed. R. Civ. P. 41(b). "It expressly authorizes a district court to dismiss a case with prejudice in order to punish a plaintiff for failure to prosecute." Jardines Ltd. P'ship v. Exec. Homesearch Realty Servs., Inc., 178 F.R.D. 365, 366 (D.P.R. 1998) "[T]he provisions of this rule apply to the dismissal of any counterclaim . . . ." George v. Martin, No. CIV. 432/1999, 2001 WL 1568480, at *3 (Terr. V.I. Oct. 29, 2001) (quoting Fed. R. Civ. P. 41(c)).
A dismissal for lack of prosecution is a harsh sanction "which should be employed only when the district court, in the careful exercise of its discretion, determines that none of the lesser sanctions available to it would truly be appropriate." Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir. 1977).
The instant case has been on the Court's docket since it was removed from the Commonwealth court by counter-defendant on May 26, 2015. Copies of the notice of removal and the FDIC-R's motion for substitution of party were served on Rivera through her attorney. As of this date, counter-plaintiff has not appeared. Accordingly, we find it proper to dismiss Rivera's counterclaim against FDIC-R.
III. CONCLUSION
In light of the foregoing, FDIC-R's Motion to Dismiss Defendant's Counterclaim (d.e. 10) and the Motion Requesting that the Motion to Dismiss be Taken Under Advisement without Objection (d.e. 19) are GRANTED. Accordingly, the Court will enter judgment dismissing defendant's counterclaim.
SO ORDERED.
At San Juan, Puerto Rico, on April 12, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge