Kahan v. Chase Bank

Filing 26

ORDER ADOPTING IN PART AND MODIFYING IN PART 23 REPORT AND RECOMMENDATIONS for 21 Motion to Dismiss. For the reasons set forth in the attached Order, the court adopts in part and modifies in part Judge Mann's Report and Recommendation. Acc ordingly, plaintiff Abraham Kahan's claims against Chase Bank are dismissed with prejudice. Defendant Chase Bank shall move for default judgment or voluntarily dismiss its counterclaims against Abraham Kahan by no later than 3/4/2011. Defendant Chase Bank is further directed to serve a copy of this Order on plaintiff Abraham Kahan and file a Declaration of Service on ECF by no later than 2/28/2011. So Ordered by Judge Kiyo A. Matsumoto on 2/25/2011. (Iguina, Carmen)

-RLM Kahan v. Chase Bank

Doc. 26

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------- X ABRAHAM KAHAN, Plaintiff, -againstCHASE BANK, Defendants. --------------------------------------- X MATSUMOTO, United States District Judge: Presently before the court is a Report and Recommendation ("R&R") issued by Magistrate Judge Roanne L. Mann on December 23, 2010, recommending that the court dismiss with prejudice plaintiff Abraham Kahans claims against defendant Chase Bank for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and for violations of judicial discovery orders pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(v), and that default judgment be entered on defendants counterclaims pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). at 2-3.) Notice and a copy of the R&R were sent electronically to defendant Chase Bank via the courts electronic filing system and by mail to plaintiff Abraham Kahan at his last known address via Federal Express on December 23, 2010. (See Notice of (See ECF No. 23, R&R dated 12/23/2010 NOT FOR PUBLICATION ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATION 10-CV-0335 (KAM)(RLM)

Electronic Filing accompanying R&R dated 12/23/2010; ECF 23-1,

Dockets.Justia.com

Addtl Attachment to R&R added 1/13/2011, Certificate of Service FedEx Airbill.) As explicitly noted at the end of the R&R, any (See

objections to the R&R were to be filed by January 3, 2011. R&R at 3.)

Because, at the time, service of the R&R on plaintiff

was not evident from the electronic docket, the court directed the Clerk to serve another copy of the R&R, along with a copy of the courts order setting a new deadline of January 31, 2011 for filing objections to the R&R, on plaintiff Abraham Kahan via Federal Express at his last known address. 1/12/2011.) (See ECF Order dated

The Clerk served a copy of the R&R and of the

courts order on plaintiff Abraham Kahan on January 12, 2011. (See ECF Certificate of Service dated 1/12/2011.) The period for

filing objections has expired, and no objections to Magistrate Judge Manns R&R have been filed. In reviewing a R&R, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." § 636(b)(1). 28 U.S.C.

Where no objection to the R&R has been filed, the

district court ",,need only satisfy itself that there is no clear error on the face of the record." Urena v. New York, 160 F.

Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). Upon a review of the R&R, and considering that the parties have failed to object to any of Judge Manns wellgrounded recommendations, the court finds no clear error in Judge 2

Manns recommendation that the court dismiss with prejudice plaintiff Abraham Kahans claims against Chase Bank, and hereby adopts that portion of the R&R as the opinion of the court. However, in an excess of caution and to ensure that plaintiff receives notice on any motion to enter a default judgment on the counterclaims, the court respectfully modifies the R&R with respect to the entry of default judgment on Chase Banks counterclaims. Rather than entering judgment on the

counterclaims, defendant Chase Bank is hereby granted leave to move for default judgment or shall otherwise dismiss its counterclaims against Abraham Kahan by no later than March 4, 2011. Accordingly, plaintiff Abraham Kahans claims against Chase Bank are hereby dismissed with prejudice. Defendant Chase

Bank shall move for default judgment or voluntarily dismiss its counterclaims against Abraham Kahan by no later than March 4, 2011. Defendant shall serve a copy of this Order on plaintiff

and file a Declaration of Service by no later than February 28, 2011. SO ORDERED. Dated: February 25, 2011 Brooklyn, New York _________ /s/ Kiyo A. Matsumoto United States District Judge

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