Dollar Phone Corp. et al v. St. Paul Fire and Marine Insurance Company

Filing 79

ORDER ADOPTING 77 REPORT AND RECOMMENDATIONS; AND GRANTING 63 Defendant's Motion for Summary Judgment; DENYING 64 Plaintiff's Cross-motion for Summary Judgment --- The Court referred the parties' motions for summary judgment to the Honorable Victor V. Pohorelsky, U.S. Magistrate Judge, who on March 9, 2012, issued a Report and Recommendation ("R & R"), recommending that the Court deny plaintiff's cross-motion for summary judgment, and, instead grant defendant 's motion for summary judgment and dismiss the complaint in its entirety. Dollar Phone timely objected to the R & R. For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER ADOPTING REPORT AND RECOMMENDATION, the R & R is adopted in its entirety. Accordingly, plaintiff's cross-motion for summary judgment is denied and defendant's motion for summary judgment is granted and this action is DISMISSED in its entirety with prejudice. The Clerk of the Court is directed to enter judgment in favor of defendant and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/30/2012. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DOLLAR PHONE CORP., et al.,
:
:
Plaintiffs,
:
:
-against:
:
ST. PAUL FIRE and MARINE INSURANCE :
COMPANY,
:
:
Defendant.
:
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SUMMARY ORDER ADOPTING
REPORT AND RECOMMENDATION
09-CV-1640 (DLI)(VVP)

DORA L. IRIZARRY, U.S. District Judge:
Dollar Phone Corporation and Dollar Phone Services, Inc. (collectively “Dollar Phone”
or “plaintiffs”) filed the instant action against St. Paul Fire and Marine Insurance Company (“St.
Paul”), with whom Dollar Phone holds a general commercial liability insurance policy. Dollar
Phone asserted various claims against St. Paul arising out of St. Paul’s decision to deny coverage
and defense of Dollar Phone in an action filed against Dollar Phone in the U.S. District Court for
the District of New Jersey by a competitor (“the New Jersey action”). St. Paul moved for
summary judgment on each of the claims in the complaint, contending that, under the policy, St.
Paul had no duty to defend Dollar Phone in its New Jersey action.

(See Defendant’s

Memorandum of Law in Support of its Motion for Summary Judgment (“Def. Mem.”), Doc.
Entry No. 63-17.) Dollar Phone opposed St. Paul’s motion and cross-moved on its breach of
contract claim. (See Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion and
in Support of Plaintiffs’ Motion for Summary Judgment (“Pl. Opp.”), Doc. Entry No. 69-1.) The
Court referred these motions to the Honorable Victor V. Pohorelsky, United States Magistrate
Judge for the Eastern District of New York. On March 9, 2012, the magistrate judge issued a
Report and Recommendation (“R & R”), recommending that the Court grant St. Paul’s motion
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and dismiss the complaint in its entirety. (See R & R, Doc. Entry No. 77.) Dollar Phone filed a
timely objection to the R & R. (See Plaintiffs’ Objection (“Pl. Obj.”), Doc. Entry No. 78.) For
the reasons set forth below, the R & R is adopted in its entirety.
DISCUSSION
When a party objects to a R & R, a district judge must make a de novo determination
with respect to those portions of the R & R to which the party objects. See FED. R. CIV. P. 72(b);
United States v. Male Juvenile, 121 F. 3d 34, 38 (2d Cir. 1997). If, however, a party makes
conclusory or general objections, or attempts to relitigate the party’s original arguments, the
court will review the R & R for clear error. See Robinson v. Superintendent, Green Haven
Correctional Facility, 2012 WL 123263, at *1 (E.D.N.Y. Jan. 17, 2012) (quoting Walker v.
Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002)). The district court may then “accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” FED. R. CIV. P. 72(b); see also 28 U.S.C. § 636(b)(1).
In recommending that this Court grant summary judgment in St. Paul’s favor, thereby
dismissing the complaint, the magistrate judge concluded that: (1) the claims asserted against
Dollar Phone in the New Jersey action did not constitute advertising injury claims, and, thus, did
not qualify for coverage or defense under the advertising injury defense provision, (2) even if the
claims asserted against Dollar Phone were valid advertising injury claims, St. Paul could have
denied coverage and defense under the “poor quality” exclusion to the advertising injury defense
provision, (3) no other exclusions to the advertising injury defense provision would have
supported St. Paul’s decision to deny coverage and defense, (4) St. Paul properly denied
coverage and defense of the New Jersey action under the trade law exclusion to the policy’s
errors and omissions provision, and (5) St. Paul’s denial of defense and coverage of Dollar

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Phone in the New Jersey action did not violate New York General Business Law § 349. (See
generally, R & R.)
Dollar Phone’s objection is limited to challenging the R & R’s first, second, and fourth
conclusions. Notably, Dollar Phone’s objections raise the same arguments supported by the
same legal authority it submitted in its original summary judgment brief. Thus, the Court
conducted a clear error review of the R & R. In doing so, the Court reviewed the original
submissions, Dollar Phone’s objections, and the relevant legal authority. The Court hereby
concludes that it need not reiterate the magistrate judge’s exceptionally thorough and wellreasoned legal analysis set forth in his R & R and that the magistrate judge correctly reached
each conclusion. Dollar Phone’s objections are denied and the R & R is adopted in its entirety.
CONCLUSION
Upon due consideration, and after finding no clear error, the R & R is adopted in its
entirety. Accordingly, St. Paul’s motion for summary judgment is granted and Dollar Phone’s
cross-motion for summary judgment is denied. The complaint is dismissed in its entirety.

SO ORDERED.
Dated: Brooklyn, New York
March 30, 2012
/s/
DORA L. IRIZARRY
United States District Judge

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