Advance Coating Technology, Inc. v. LEP Chemical Ltd.

142 F.R.D. 91, 1992 WL 104924, 1992 U.S. Dist. LEXIS 6243
CourtDistrict Court, S.D. New York
DecidedMay 7, 1992
DocketNo. 90 Civ. 1752 (WCC)
StatusPublished
Cited by11 cases

This text of 142 F.R.D. 91 (Advance Coating Technology, Inc. v. LEP Chemical Ltd.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advance Coating Technology, Inc. v. LEP Chemical Ltd., 142 F.R.D. 91, 1992 WL 104924, 1992 U.S. Dist. LEXIS 6243 (S.D.N.Y. 1992).

Opinion

[93]*93OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

Defendants LEP Industrial Holdings, Ltd. (“Industrial”) and LEP Group PLC (“Group”) moved to dismiss the Complaint in this action pursuant to Rule 12(b)(2), Fed.R.Civ.P., for lack of personal jurisdiction. By Memorandum Decision dated January 28, 1991, familiarity with which is presumed, this Court referred the motion to Chief Magistrate Judge Nina Gershon, pursuant to 28 U.S.C. § 636(b)(1)(B), for a hearing and report. On March 9, 1992, Chief Magistrate Judge Gershon filed her Report and Recommendation (the “Report”), in which she recommended that the action against Group be dismissed since plaintiffs had not made a prima facie showing of jurisdiction as against that entity. The Magistrate recommended that the action as against Industrial proceed to trial since plaintiffs had made the required pri-ma facie showing of jurisdiction over it. Report at 10-11.1

Defendants object to that part of the Report that refused to dismiss for lack of personal jurisdiction as to Industrial. Defendants argue that, properly interpreted, the evidence submitted by both sides cannot support Magistrate Gershon’s conclusion that plaintiffs had made a prima facie showing of jurisdiction over Industrial. Having considered de novo those portions of the Magistrate’s Report to which defendants have objected, the Court hereby adopts the Report in its entirety.

BACKGROUND

This action arises out of the sale by LEP Chemical Ltd. (“Chemical”) to plaintiffs Advance Coating Technology, Inc. (“ACT”) and Molecular Engineering and Maintenance Systems Company (“MEMSCO”) of belt repair products which it manufactured, and an alleged distribution agreement between plaintiffs and Chemical concerning the same. Chemical is a wholly-owned subsidiary of Industrial, which, in turn, is a wholly-owned subsidiary of Group. Each of the three defendants is organized under the laws of England. Plaintiffs have sued defendants for alleged fraud in the inducement, breach of contract, and breach of express and implied warranties.

DISCUSSION

Standard of Review

Magistrates are empowered by statute to preside over pretrial matters upon being appointed by a district judge. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. Rule 72(a). Rule 72(b), Fed.R.Civ.P., instructs a district court judge to “make a de novo determination ... of any portion of the magistrate’s disposition to which specific written objection has been made____” See also 28 U.S.C. § 636(b)(1); East River Savings Bank v. Secretary of HUD, 702 F.Supp. 448, 453 (S.D.N.Y.1988). After conducting its review, the court may then “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). The rule also permits the court to accept any portion of a magistrate’s disposition to which no objection has been made as long as there is no clear error on the face of the record. See Rule 72, Fed.R.Civ.P., Notes of Advisory Committee on Rules (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974)).2

A district court’s obligation to make a de novo determination of properly contested portions of a magistrate’s report does not require a second evidentiary hearing. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). The judge’s review may be [94]*94based solely upon the record. Fed.R.Civ.P. Rule 72(b). “To this end, the court must ‘exercise ... sound judicial discretion with respect to whether reliance should be placed on [the magistrate’s] findings.’ ” East River, 702 F.Supp. at 453 (quoting American Express Int’l Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y.1981), aff'd without opinion, 697 F.2d 287 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982)).

In making its determination, this Court has reviewed the transcript of the conference conducted by Magistrate Gershon on October 30, 1991, all briefs, memoranda, and letters submitted by counsel, Magistrate Gershon’s Report, defendants’ objections to the Report, and plaintiffs’ response thereto.

Timeliness of the Objections

Contrary to plaintiffs’ assertions, defendants’ objections to the Report were filed within the time permitted pursuant to 28 U.S.C. § 636(b). Under 28 U.S.C. § 636(b) and Rule 72(b), Fed.R.Civ.P., a party has ten days after being served with a recommendation of a magistrate in which to file any objections thereto. However, in computing the time available to file objections, the Court must take into consideration Fed.R.Civ.P. Rule 6(a) and (e). Under Rule 6(a), when a “time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Additionally, when the last day for taking an action falls on a Saturday or Sunday, it is extended until the following Monday. Rule 6(e) adds three days to a response period whenever the responding party is served by mail.

Therefore, under Rule 6(a), defendants’ filing of objections on March 23, 1992 was timely. Magistrate Gershon’s Report was served on defendants by mail on March 9, 1992. Ten days from March 9, excluding the weekend of March 14-15, falls on Saturday, March 21. Accordingly, under Rule 6(a), defendants had until Monday, March 23, 1992, to file objections, even without taking into consideration the additional three days defendants were granted under Rule 6(e) due to the mailing of the Report. Cf. Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (S.D. Ala.1987) (objection to magistrate’s report was timely filed after ten-day period for filing was extended through application of Rule 6(a), which excluded intervening Saturdays, Sundays, and legal holidays, and through application of Rule 6(e), which added three additional days for mailing).3

Jurisdiction over Industrial

A district court has “considerable procedural leeway” in deciding a pre-trial motion to dismiss for lack of personal jurisdiction. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). “It may determine the motion on the basis of affidavits alone; or it may permit discovery in aid of the motion or it may conduct an evidentiary hearing on the merits of the motion.” Id. (citations omitted).

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Bluebook (online)
142 F.R.D. 91, 1992 WL 104924, 1992 U.S. Dist. LEXIS 6243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advance-coating-technology-inc-v-lep-chemical-ltd-nysd-1992.