Furia v. Independent Recovery Resources, Inc.

• Court: District Court, E.D. New York
• Decided: February 11, 2020
• Docket: 2:18-cv-06102
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT CLERK EASTERN DISTRICT OF NEW YORK 2/11/2020 2 :55 pm ------------------------------------------------------------X JOSHUA FURIA, on behalf of himself and all U.S. DISTRICT COURT others similarly situated, EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE Plaintiff, ORDER 18-CV-6102 (SJF)(ARL) - against-

INDEPENDENT RECOVERY RESOURCES, INC.,

Defendant. ------------------------------------------------------------X FEUERSTEIN, District Judge:

Plaintiff commenced this action alleging that Defendant violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Before the Court is a Report and Recommendation (“the Report”) of the Honorable Arlene R. Lindsay, United States Magistrate, dated January 27, 2020, see Docket Entry (“DE”) [33], (1) recommending that defendant’s motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure be granted; and (2) advising inter alia, (a) that “the parties shall have fourteen (14) days from service of th[e] Report . . . to file written objections and (b) that “[f]ailure to file objections will result in a waiver of those objections for purposes of appeal.” Report at 8 (citing 28 U.S.C. § 636(b)(1)(c); FED. R. CIV. P. 72; Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Beverly v. Walker, 118 F.3d 900, 901 (2d Cir.1997); and Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996)). A copy of the Report was served upon counsel for all parties via ECF on January 27, 2020. Despite such service, no objections have been filed, nor has any party sought an extension of time to do so. For the reasons set forth below, Magistrate Judge Lindsay=s Report is adopted in its entirety. I. DISCUSSION A. Standard of Review Any party may serve and file written objections to a report and recommendation of a magistrate judge within fourteen (14) days after being served with a copy thereof. 28 U.S.C. '

636(b)(1); FED. R. CIV. P. 72(b)(2). Any portion of such a report and recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P. 72(b)(3). The Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas, 474 U.S. at 150. Indeed, “[w]here parties receive clear notice of the consequences, failure to timely object to a magistrate’s report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (quoting Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)). Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a violation thereof “in the interests of justice.” King v. City of N.Y., Dept of Corr., 419 F. App=x 25, 27 (2d Cir. 2011) (summary order)

(internal quotation marks and citation omitted). The Court’s exercise of its discretion is based on “among other factors, whether the defaulted argument has substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000); accord King, 419 F. App=x at 27. To accept the magistrate=s report and recommendation absent a timely objection, the court need only be satisfied that there is no clear error on the face of the record. See FED. R. CIV. P. 72(b); Baptichon v. Nevada State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y. 2004), aff'd, 125

2 F. App'x 374 (2d Cir. 2005). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. ' 636(b)(1); FED. R. CIV. P. 72(b). B. Review of the Report

No party has filed objections to the Report within the time prescribed in 28 U.S.C. §636(b)(1)(C), nor has any party sought an extension of the deadline. As the parties were provided with adequate notice of the Report and an express warning of the consequences of a failure to timely file objections thereto, their failure to interpose timely objections to the Report operates as a waiver of further judicial review. See Caidor v. Onondaga Cnty., 517 F.3d 601, 602-03 (2d Cir. 2008); Mario, 313 F.3d at 766. As a result, this Court need not conduct a de novo review of the findings and conclusions in the Report, but rather “need only satisfy itself that there is no clear error on the face of the record to accept a magistrate judge’s report and recommendation.” Safety-Kleen Sys., Inc. v. Silogram Lubricants Corp., No. 12-CV-4849, 2013 WL 6795963, at *1 (E.D.N.Y. Dec. 23, 2013). After a careful review of the Report, the Court finds no plain error in either the reasoning or the conclusions reached therein.

II. CONCLUSION The Report is adopted in its entirety. Defendant’s motion for judgment on the pleadings, DE [22], is granted and the Clerk of the Court is directed to close the case. SO ORDERED. /s/ Sandra J. Feuerstein Sandra J. Feuerstein United States District Judge Dated: Central Islip, New York February 11, 2020