United States District Court, S.D. New York
VALERIE CAPROINI UNITED STATES DISTRICT JUDGE.
Jeneice Edmond, who administers the estate of Clara Edmond,
commenced this pro se action alleging fraud and
racketeering by various entities allegedly involved in Clara
Edmond's mortgage and the subsequent foreclosure
proceeding. See Compl. (Dkt. 1) ¶¶ 112-17.
Defendants were allegedly part of a scheme to defraud Clara
Edmond by intentionally misappraising and inflating the value
of the mortgaged property, which caused Clara Edmond to agree
to a loan far in excess of the property's actual value.
See Id. at 2 & ¶¶ 1-4. The Court
referred this matter to Magistrate Judge Sarah Netburn, Dkt.
4, who recommended that the Court grant the motions to
dismiss filed by five of the defendants (“Moving
Defendants”); as to the remaining defendants except
Live Well Financial, Inc.,  Judge Netburn recommended
dismissal based on failure to serve. See Report
& Recommendation (R&R) (Dkt. 30) at 19. Judge Netburn
also ordered Plaintiff to propose an amended complaint if
Plaintiff believes that the defects identified in the R&R
could be cured, and to either provide proof of service or
show good cause why Plaintiff's time to serve should be
extended. See R&R (Dkt. 30) at 19. Plaintiff was
required to respond to Judge Netburn's instructions
within 14 days of the R&R, which was issued on December
2, 2019. As of the date of this Order, 35 days have elapsed,
and the Court has received no objection to the R&R or any
other response from Plaintiff.
no objections were timely filed, the Court “need only
find that there is no clear error on the face of the record
in order to accept the Report and Recommendation.”
Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211
(S.D.N.Y. 2013) (citation omitted); McChriston v.
Diversified Consultants, No. 18-CV-185, 2019 WL 2912172,
at *1 (S.D.N.Y. July 8, 2019). Regarding Plaintiff's
Racketeer Influenced and Corrupt Organizations Act (RICO)
claims (Counts I and II), Judge Netburn recommended dismissal
because Plaintiff failed to allege a pattern of racketeering
activity or the existence of an “enterprise.”
R&R (Dkt. 30) at 8-12 (explaining that Plaintiff failed
to allege existence of coordination between defendant
entities or more than one instance of wrongdoing). As for
Plaintiff's third and final claim, which sounds in fraud,
Judge Netburn recommended dismissal because Plaintiff failed
to allege fraud with particularity as required by Rule 9(b)
of the Federal Rules of Civil Procedure, in part because
Plaintiff failed to allege that Defendants knew that the
appraisal value had been “inflated.” R&R
(Dkt. 30) at 17.
careful review, the Court finds no clear error in the
R&R, which is adopted in full. The pending motions to
dismiss at docket entries 14 and 15 are therefore granted,
and the Defendants Schiller Knapp, Lefkowitz & Hertzel,
LLP; Mortgage Electronic Registration Systems, Inc.; Champion
Mortgage; Nationstar Mortgage LLC d/b/a Champion Mortgage;
and Nationstar Reo Sub 1B, LLC, are hereby DISMISSED with
prejudice from this action. Furthermore, because Plaintiff
has failed to provide either proof of service or even an
explanation of her attempts to effectuate service, the Court
agrees that the case must be DISMISSED as to all remaining
defendants without prejudice, except Live Well Financial,
Inc., which is the subject of a litigation stay due to
bankruptcy proceedings. Additionally, because Judge Netburn
has provided Plaintiff an opportunity to submit a proposed
amended complaint in response to the R&R and Plaintiff
has not done so, the Court declines to grant further leave to
Well Financial, Inc. must provide a status update on the
first business day of every sixth month, as to whether the
bankruptcy stay has been lifted; the first such report shall
be due on June 1, 2020.
Clerk of Court is respectfully directed to terminate the
pending motions at docket entries 14 and 15 and terminate all
defendants except Live Well Financial, Inc. from this action.
The Clerk is further instructed to STAY this action because
the only remaining claims have been stayed due to Live Well
Financial, Inc.'s bankruptcy proceeding. The Clerk is
also requested to mail a copy of this Order to Plaintiff and
note mailing on the docket.
 Live Well Financial, Inc. is the
subject of an automatic litigation stay due to the filing of
a bankruptcy petition. See Dkts. 28-29.
 The Court notes that, prior to the
issuance of the R&R, Plaintiff attempted to file an
amended complaint, which Judge Netburn rejected for reasons
of futility. See Dkt. 29. That proposed amended
complaint appears to abandon Plaintiff's RICO claims.
See Dkt. 24-1 ¶¶ 60-88. Plaintiff's
proposed amendment did not contain any allegations that would
address the defects identified in the R&R. The Court
further agrees with the R&R that any amendment as to