Solares v. Financial Recovery Services, Inc.

• Court: District Court, E.D. New York
• Decided: January 2, 2020
• Docket: 2:19-cv-00991
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT CLE RK 1/2/2020 2:46 pm EASTERN DISTRICT OF NEW YORK --------------------------------------------------------X U.S. DISTRICT COURT MARIA M. SOLARES, on behalf of herself EASTERN DISTRICT OF NEW YORK and all others similarly situated, LONG ISLAND OFFICE

Plaintiff, ORDER -against- 19-CV-991 (SJF)(GRB)

FINANCIAL RECOVERY SERVICES, INC.,

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

Pending before the Court is the Report and Recommendation of the Honorable Gary R. Brown, United States Magistrate Judge, dated December 3, 2019 (“the Report”), (1) recommending that the motion of defendant Financial Recovery Services, Inc. (“defendant”) for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted to the extent set forth therein; and (2) advising, inter alia, (a) that “[a]ny written objections to th[e] Report . . . must be filed . . . within fourteen (14) days of service of th[e] [R]eport,” (Report at 11) (citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 6(a), 72(b)), and (b) that “[f]ailure to file objections within fourteen (14) days will preclude further review of th[e] [R]eport . . . either by the District Court or Court of Appeals.” (Id.) (citing Thomas v. Arn, 474 U.S. 140, 145, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008); and Mejia v. Roma Cleaning, Inc., 751 F. App’x 134, 136 (2d Cir. Oct. 5, 2018) (summary order)). A copy of the Report was served upon both parties via ECF on December 3, 2019. (See Docket Entry [“DE”] 23). Neither party has filed any timely objections to the Report, nor sought an extension of time to do so. For the reasons set forth below, the Report is accepted in its entirety. 1 I. Standard of Review Any party may serve and file written objections to a report and recommendation of a magistrate judge on a dispositive matter 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, however, 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, 106 S. Ct. 466. Where a party “received clear notice of the consequences of the failure to object” to a report and recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (quotations and citation omitted); accord Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002); Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989), his “failure to object timely to [that] report waives any further judicial review of the report.” Frank, 968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015); Caidor, 517 F.3d at 604.

Nonetheless, the waiver rule is non-jurisdictional and, thus, the Court may excuse a violation thereof “in the interests of justice.” Neita v. Precision Pipeline Sols., 768 F. App’x 12, 14 (2d Cir. Apr. 29, 2019) (summary order) (citing United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 39 (2d Cir. 1997)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is exercised 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 Neita, 768 F. App’x at 14.

2 II. Review of Report Since neither party has filed any timely objections to the Report, nor sought an extension of time to do so, they have “waive[d] any further judicial review of the findings contained in the [R]eport.” Spence, 219 F.3d at 174. As the Report is not plainly erroneous, the Court will not

exercise its discretion to excuse the parties’ default in filing timely objections to the Report in the interests of justice. Accordingly, the Report is accepted in its entirety and, for the reasons set forth therein, defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted to the extent set forth in the Report and defendant is granted judgment as a matter of law dismissing plaintiff’s claims against it in their entirety.

III. Conclusion For the reasons set forth above, the Report is accepted in its entirety and, for the reasons set forth therein, defendant’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted to the extent set forth in the Report and defendant is granted

judgment as a matter of law dismissing plaintiff’s claims against it in their entirety. The Clerk of the Court shall enter judgment in accordance with this Order and close this case. SO ORDERED.

___/s/ Sandra J. Feuerstein____ SANDRA J. FEUERSTEIN United States District Judge

Dated: January 2, 2020 Central Islip, New York 3