ASTA FUNDING, INC. v. NEAL et al

Filing 97

MEMORANDUM AND ORDER; affirming for the reasons expressed therein, and adopted by the Court, the Magistrate Judge's report and recommendation and order D.E. 83 and 84 . Defendant may submit a form or judgment within 7 days; etc. Signed by Judge Kevin McNulty on 11/9/2018. (sms)

UNITED STATES DISTRICT COURT
FOR TUE DISTRICT OF NEW JERSEY

ASTA FUNDING, INC,
Petitioner,

Civ. No. 2:14-2495
(KM) (MAR)

V.

MEMORANDUM and ORDER
DAVID SHAUN NEAL, et aL,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
On June 30, 2016, I entered judgment in favor of the plaintiff, Asta
Funding, Inc. (“Asta”). (DE 24, 25, 26)1 denied a motion for reconsideration.
(IDE 46, 48) I also denied a Rule 60(b) motion to reopen the judgment. (DE 72)
Plaintiffs filed notices of appeal (DE 51, 52) from my judgment and the denial of
the post-judgment motions. Recently, on November 8, 2018, the U.S. Court of
Appeals affirmed my judgment on the merits. (DE 95) In the ordinary course,
the mandate will issue in approximately 21 days. Fed. R. App. p. 41(b).
Meanwhile, Asta filed a motion, superseded by a renewed motion, for
attorney’s fees and costs. (DE 57) This was followed by motions to strike Asta’s
motion, contest service, and so on. The Magistrate Judge entered a report and
recommendation awarding fees and costs, with accompanying order. (DE 83,
84) The plaintiffs did not then file any objection pursuant to Fed. R. Civ. p. 72;

see also D.N.J. Local Civ. R. 72.lc.
Instead, the plaintiffs filed notices of appeal to the U.S. Court of Appeals
for the Third Circuit. (DE 85, 86) By amended orders dated November 28,
2017, the Third Circuit dismissed those appeals for lack of jurisdiction,
because there was no final order as to attorney’s fees. The Court noted that
there is no direct appeal to the Court of Appeals from a Magistrate Judge’s
report and recommendation on a dispositive matter. Such a report and

recommendation, the Court wrote, “must be accepted, rejected or modified by
the District Court.” (DE 89, 90). The Court of Appeals’ decision issued in the
form of a certified order in lieu of formal mandate, terminating the appeal. (Id.).
A few days later, concerned that the plaintiffs not forfeit procedural
rights as a result of a procedural misstep, I entered the following text order:
12/01/2017 TEXT ORDER: lam in receipt of an order from the
U.S. Court of Appeals essentially stating that plaintiffs’ notice of
appeal was premature because the Magistrate Judge’s award of
attorney’s fees must first be accepted, rejected, or modified by the
district court. Plaintiff Asta has filed a letter requesting that the
Magistrate Judge’s award be affirmed. Because of the evidence
procedural confusion, I will accept filing of objections in response
to plaintiffs letter within 14 days.
(DE 92)
I did not receive objections to the Magistrate Judge’s report &
recommendation, within 14 days or at any time thereafter.’ Asta sent a letter
requesting that I adopt the report and recommendation. (DE

93)2

Recently,

The Third Circuit has summarized the standards for review of a Magistrate
Judge’s report and recommendation on a dispositive issue as follows:
The product of a magistrate judge, following a referral of a dispositive
matter, is often called a “report and recommendation.” Parties “may serve
and file specific written objections to the proposed findings and
recommendations” within 14 days of being served with a copy of the
magistrate judge’s report and recommendation. Fed. 1?. Civ. P. 72(b)(2). If
a party objects timely to a magistrate judge’s report and
recommendation, the district court must “make a de novo detennination
of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3).
Equal Employment Opportunity Comm’n a City of Long Branch, 866 F.3d 93, 99—100
(3d Cir. 2017).
2
Meanwhile, still pending were two notices of appeal filed by Neal (DE 75, 76)
with respect to various ancillary rulings in connection with attorney’s fees. Once
again, the Court of Appeals dismissed the appeal for lack of jurisdiction, because the
orders being appealed (DE 71, 72) were not final. That decision, dated November 7,
2017, again took the form of a certified order in lieu of formal mandate, terminating
the appeal. (DE 94).

following the affirmance of my judgment on the merits, Asta renewed its letter
request that I adopt the Magistrate Judge’s report and recommendation
regarding attorney’s fees. (DE 96)
ORDER

IT APPEARING that the Magistrate Judge has entered a report and
recommendation and order (DE 83, 84) awarding attorney’s fees in the amount
of $694,174.07 and costs in the amount of $63,183.14; and
IT FURTHER APPEARING that plaintiffs filed no objection pursuant to

Fed. R. Civ. P. 72; and
IT FURTHER APPEARING that plaintiffs instead filed notices of appeal

to the U.S. Court of Appeals for the Third Circuit, which thereafter dismissed
the appeals for lack of jurisdiction (DE 89, 90); and
IT FURTHER APPEARING that this Court then afforded the plaintiffs a
second opportunity to file objections to the Magistrate Judge’s report and
recommendation within 14 days (DE 92); and
IT FURTHER APPEARING that the plaintiffs again failed to file any

objection pursuant to Fed. R. Civ. P. 72, then or at any time; and
THE COURT having reviewed the report and recommendation, and found

no error therein;
IT IS this 9th day of November, 2018,

ORDERED that the Magistrate Judge’s report and recommendation and
order (DE 83, 84) are AFFIRMED for the reasons expressed therein, and
adopted by the Court. Defendant may submit a form of judgment within 7
days.
KEVIN MCNULTY
United States District J

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