287 Franklin Avenue Residents' Association et al v. Meisels et al

Filing 146

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Order Adopting Report and Recommendation, the Report and Recommendation issued by Magistrate James Orenstein on 8/27/12 is adopted in its entirety. The Clerk of Co urt is respectfully directed to strike the answer of defendants Nathan Smith, Josh Bosch, and People Choice Real Estate, LLC (a.k.a. "Peoples Choice Real Estate, L.L.C." and "People's Choice Realty, Inc.") to the First Amende d Complaint (ECF No. 43) and to enter their default. Plaintiffs shall serve a copy of this Memorandum and Order upon each of the PCRE Defendants, as defined herein, and are ordered to file a certificate of service via ECF by September 28, 2012. Ordered by Judge Kiyo A. Matsumoto on 9/25/2012. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
287 FRANKLIN AVENUE RESIDENTS’
ASSOCIATION, ET AL.,
ORDER ADOPTING REPORT
AND RECOMMENDATION

Plaintiffs,
-against-

11-CV-0976(KAM)(JO)

CHAIM MEISELS, ET AL.,
Defendants.
X
--------------------------------------MATSUMOTO, United States District Judge:
On March 1, 2011, plaintiffs 287 Franklin Avenue
Residents’ Association, Jon Sasmor, Lisa Lin, Willie Osterweil,
Kurt Fletcher, and Vilija Skubutyte (“plaintiffs”) commenced
this action against various defendants, including Nathan Smith
(“Smith”), Josh Bosch (“Bosch”), and People Choice Real Estate,
LLC 1 (“People’s Choice”) (collectively, the “PCRE Defendants”),
seeking damages and equitable relief for violations of Federal
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §
1962 (“RICO”) and the New York Consumer Protection Act, New York
General Business Law § 349.

(See generally ECF No. 1.)

The

PCRE Defendants were served with the Complaint in March 2012,
but failed to answer or otherwise move, causing plaintiffs to
move for entry of their default.

(See ECF Nos. 6, 12, 15, 21.)

The Clerk of this Court entered the defaults of Smith and Bosch
1

People’s Choice is also known as “Peoples Choice Real Estate, L.L.C.” and
“People’s Choice Realty, Inc.”

1

on April 13, 2011 and of People’s Choice on April 21, 2012.
(See ECF Nos. 16-17.)
On July 7, 2011, plaintiffs filed their First Amended
Complaint.

(ECF No. 41.)

The PCRE Defendants eventually did

appear and retained counsel, who assisted them in obtaining
vacatur of the default judgments against them on August 18,
2011.

(See ECF No. 33, 34, 36, 40, 52.)

The PCRE Defendants

then answered the First Amended Complaint on July 15, 2011.
(ECF No. 43.)

Plaintiffs served their initial discovery demands

on the PCRE Defendants on October 1, 2011.
1.)

(See ECF No. 64 at

The PCRE Defendants, however, failed to provide a complete

response, and on November 28, 2011, plaintiffs moved for an
order to compel them to do so.

(ECF No. 64.)

Magistrate Judge

Orenstein granted plaintiffs’ request in part and ordered the
PCRE Defendants to complete their discovery responses by January
31, 2012.

(ECF No. 73.)

The PCRE Defendants again failed to

comply with the court’s order, and on April 17, 2012, plaintiffs
filed their second motion to compel.

(ECF No. 99.)

The PCRE Defendants did not respond directly to the
second motion to compel, but their attorney, Marc Illish, Esq.,
sought leave of the court to withdraw his representation of the
PCRE Defendants due to his inability to get the PCRE Defendants
to communicate with him or to otherwise respond to his efforts
to do so.

(ECF No. 100.)

On April 14, 2012, Judge Orenstein

2

issued an order scheduling a status conference and ordering all
of the PCRE Defendants to appear in person.
dated 4/23/12.)

(See docket entry

The conference was held on May 7, 2012; Smith

appeared, Odelia Berlianshik appeared on behalf of the People’s
Choice entities, and Bosch failed to appear.

(ECF No. 104.)

Judge Orenstein noted in the minute entry for the status
conference that Smith intended to represent himself and
Berlianshik intended not to engage new counsel for the People’s
Choice entities (even though she understood that would result in
the entry of default against the People’s Choice entities).
(Id.)

Judge Orenstein also ordered the PCRE Defendants to

discharge their outstanding discovery obligations by May 29,
2012, after which he would grant Mr. Illish’s motion to be
relieved as counsel.

(Id.)

Once again, the PCRE Defendants did not meet the
court-ordered deadline, and plaintiffs made their third motion
to compel on June 13, 2012.

(ECF No. 208.)

Plaintiffs reported

that on May 29, 2012, Mr. Illish contacted them seeking an
extension of time for his clients to fulfill their discovery
obligations, and plaintiffs agreed to the extension and also
agreed not to seek court assistance until after June 11, 2012.
(Id.)

Yet, no additional documents or information were provided

to plaintiffs.

(Id.)

On June 21, 2012, Mr. Illish informed the court via

3

letter that he had not been able to obtain cooperation or
communication from his clients.

(ECF No. 110.)

On June 22,

2012, Judge Orenstein issued an order directing the PCRE
Defendants to appear in person at the next status conference to
discuss their failure to comply with court orders, and
specifically warned them that their failure to appear could
result in default judgments.

(See docket entry dated 6/22/12.)

Nonetheless, none of the PCRE Defendants appeared at the next
status conference held on July 9, 2012, nor did they seek leave
to be excused.

(See ECF No. 114.)

Mr. Illish did appear,

although he did not present an argument as to why, in light of
the PCRE Defendants’ repeated failures to provide discovery or
otherwise comply with court orders, the court should not strike
their answer and enter default judgments.

(Id.)

Presently before the court is a Report and
Recommendation issued by Magistrate James Orenstein on August
27, 2012, recommending that the court, sua sponte, direct the
Clerk of Court to strike the PCRE Defendants’ answer to the
First Amended Complaint and to enter their default.

(ECF No.

123, Report and Recommendation dated 8/27/2012 (“R&R”), at 1,
6.)
As explicitly noted at the end of the Report and
Recommendation, any objections to the Report and Recommendation
were to be filed on or before September 13, 2012.

4

(R&R at 6.)

Plaintiffs served the Report and Recommendation on the PCRE
Defendants on August 30, 2012.

(See ECF Nos. 124-125,

Certificates of Service dated 8/30/12.)

The period for filing

objections has now expired, and no objections to Magistrate
Judge Orenstein’s Report and Recommendation have been filed.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

28

Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that 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 review of Magistrate Judge Orenstein’s thorough
and well-reasoned Report and Recommendation and the record in
this case, and considering that neither party has objected to
any of Magistrate Judge Orenstein’s recommendations, the court
finds no clear error in the Report and Recommendation and hereby
affirms and adopts it as the opinion of the court.
CONCLUSION
For the foregoing reasons, the Clerk of Court is
respectfully directed to strike the answer of defendants Nathan
Smith, Josh Bosch, and People Choice Real Estate, LLC (a.k.a.

5

“Peoples Choice Real Estate, L.L.C.” and “People’s Choice
Realty, Inc.”) to the First Amended Complaint (ECF No. 43) and
to enter their default.
Plaintiffs shall serve a copy of this Memorandum and
Order upon each of the PCRE Defendants, as defined herein, and
are ordered to file a certificate of service via ECF by
September 28, 2012.

SO ORDERED.

Dated:

September 25, 2012
Brooklyn, New York
___/s/______ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

6