Amtrust Bank v. Hodge et al

Filing 251

ORDER ADOPTING REPORT AND RECOMMENDATIONS. This Court has reviewed the unopposed Report and Recommendation 248 , and, finding no clear error, the Court adopts Magistrate Judge Orenstein's Report and Recommendation in its entirety pursuant to 28 U.S.C. § 636(b)(1). The Court strikes Defendant Jordan's answer, and the Clerk of Court is directed to enter a default against Defendant Lea Jordan. Ordered by Judge Margo K. Brodie on 4/29/2013. (Olson, Kristin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FDIC AS RECEIVER FOR AMTRUST BANK,
Plaintiff,
MEMORDANDUM & ORDER
09-CV-3234 (MKB)

v.
MICHAEL HODGE, et al.,
Defendants.
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MARGO K. BRODIE, United States District Judge:

AmTrust Bank (“AmTrust”) filed a Complaint on July 28, 2009, against Defendant Lea
Jordan and others. (Docket Entry No. 1.) On January 7, 2010, the Federal Deposit Insurance
Corporation (“FDIC”), as Receiver for AmTrust Bank, was substituted as Plaintiff. (January 7,
2010 Order.) According to the Complaint, the defendants, including Jordan, defrauded AmTrust
out of millions of dollars through a series of fraudulent mortgage loans. (Docket Entry No. 1.)
Defendant Jordan filed an answer to the original Complaint and asserted cross-claims against the
other Defendants on July 9, 2010. (Docket Entry No. 130.) On July 31, 2012 and August 6,
2012, Plaintiff filed an Amended Complaint and a corrected Amended Complaint against Jordan
and others. (Docket Entries Nos. 210 and 211.) Jordan never answered or sought to dismiss the
Amended Complaint.1 By Report and Recommendation (“R&R”) dated March 27, 2013,
Magistrate Judge James Orenstein recommended that the Court sua sponte strike Defendant

1

The Court notes that Defendant Jordan’s failure to respond to the Amended Complaint,
on its own, would justify default. S.E.C. v. Anticevic, No. 05 Civ. 6991, 2009 WL 4250508, at
*2 (S.D.N.Y. Nov. 30, 2009) (“Default is proper where a defendant fails to answer an amended
complaint, even where the defendant has answered the original complaint.” (citing Parise v..
Riccelli Haulers, Inc., 672 F.Supp. 72, 74 (N.D.N.Y. 1987)).

Jordan’s answer to the Complaint and direct the Clerk to enter her default. (Docket Entry No.
248.) Defendant Jordan did not file any objections.
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. New York State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Wagner & Wagner, LLP v.
Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010)
(“[A] party waives appellate review of a decision in a magistrate judge’s Report and
Recommendation if the party fails to file timely objections designating the particular issue.”).
This Court has reviewed the unopposed R&R, and, finding no clear error, the Court
adopts Magistrate Judge Orenstein’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). The
Court strikes Defendant Jordan’s answer, and the Clerk of Court is directed to enter a default
against Defendant Lea Jordan.

SO ORDERED:

s/MKB
MARGO K. BRODIE
United States District Judge
Dated: Brooklyn, New York
April 29, 2013