Emilio Alcazar v. Select Portfolio Servicing, Inc.

• Court: District Court, W.D. Texas
• Decided: September 5, 2025
• Docket: 5:25-cv-00532
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

EMILIO ALCAZAR, § § Plaintiff, § SA-25-CV-00532-FB § vs. § § SELECT PORTFOLIO SERVICING, § INC., § § Defendant. §

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery: This Report and Recommendation concerns the above-styled cause of action, which was referred to the undersigned for all pretrial proceedings [#6]. The undersigned therefore has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that the District Court dismiss this action for failure to prosecute. I. Background and Analysis The record reflects that Plaintiff’s counsel, Gregory T. Van Cleave, has been suspended from the practice of law by the State Bar of Texas for a period of five years, until June 30, 2030. The State Bar suspension has also resulted in the suspension of Mr. Van Cleave’s license to practice in the Western District of Texas. In light of the suspension, the Court ordered Mr. Van Cleave to withdraw his representation of Plaintiff after notifying Plaintiff of the withdrawal. The Court ordered Plaintiff to either find a new attorney or advise the Court of his intent to proceed pro se by August 28, 2025. To date, the Court has not received any further correspondence from Mr. Van Cleave, his law office, or Plaintiff. The Court does not have any contact information for Plaintiff. A district court may dismiss an action for failure to prosecute or to comply with any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir.1988) (per curiam); Fed. R. Civ. P. 41(b). At this juncture, the best course is to dismiss this case for failure to prosecute but

for the dismissal to be without prejudice so that Plaintiff may refile this action with representation by another attorney or proceed pro se. II. Conclusion and Recommendation Having considered the record in this case, the undersigned recommends that this case be dismissed without prejudice for failure to prosecute. III. Instructions for Service and Notice of Right to Object/Appeal The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified

mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party’s failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 (1985); Acufia v. Brown & Root, Inc., 200 F.3d 335, 340 (Sth Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (Sth Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). SIGNED this 5th day of September, 2025.

UNITED STATES MAGISTRATE JUDGE