Friendly's Restaurants Franchise, LLC v. Rappan Restaurants, Inc. et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Magistrate Judge Cheryl L. Pollak on 3/28/2013. The action is dismissed for lack of prosecution. ( Ordered by Judge Sandra L. Townes on 7/31/2013 ) *Forwarded for jgm. (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------------FRIENDLY'S RESTAURANTS FRANCHISE , LLC ,
Plaintiff,

MEMORANDUM AND ORDER

-against-

ADOPTING THE REPORT
AND RECOMMENDATION

12-cv-81 (SL T) (CLP)

RAPPAN RESTAURANTS, INC. and PATRICK E.
RAPILLLO,
Defendants.

x

TOWNES, United States District Judge:

On January 6, 2013, Friendly's Restaurants Franchise, LLC ("Plaintiff') commenced this
action against Rappan Restaurants, Inc. and Patrick E. Rapillo ("Defendants"), asserting claims
for breach of contract, trademark infringement and dilution, and unfair competition. On April 4,
2012, after both defendants failed to file an answer or otherwise respond to the complaint, a
notation of default was entered against them. (Document No.8.)
On February 25, 2013, noting that no action had been taken by any party in the case
since Plaintiff requested entry of the certificate of default, Magistrate Judge Cheryl L. Pollak
ordered Plaintiff to file a status report by March 20, 2013. Judge Pollak further directed Plaintiff
to file any motion for default judgment by March 25, 2012 and warned that should Plaintiff fail to
do so, the court would recommend that the case be dismissed for lack of prosecution.
(Document No.9.)
Despite this warning, Plaintiff did not submit a status report or a motion for default
judgment and did not contact the court in any way. Accordingly, on March 28, 2013, Judge
Pollak filed a report and recommendation (the "R&R"), recommending that Plaintiff's complaint
be dismissed for failure to prosecute. The R&R advised the parties that any objections needed

to be filed by April 11, 2013. To date, none of the parties has filed an objection.
A district court is not required to review the factual or legal conclusions of the magistrate
judge as to those portions of a report and recommendation to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 150 (1985). Nonetheless, when no objections
are filed, many courts seek to satisfy themselves "that there is no clear error on the face of the
record." Fed. R. Civ. P. 72(b) advisory committee note (1983 Addition); see also Edwards v.
Town of Huntington, 2007 WL 2027913, at *2 (E.D.N.Y. July 11, 2007). Accordingly, this court

has reviewed the R&R for clear error on the face of the record. The court finds no clear error,
and therefore adopts the R&R in its entirety as the opinion of the court pursuant to 28 U.S.C.

§ 636(b) (1).
CONCLUSION

For the reasons set forth above, the R&R [10] is hereby ADOPTED in its entirety and
this action is dismissed for lack of prosecution. The Clerk of Court is respectfully directed to
close this case.
SO ORDERED.

/s/(SLT)
-r,V{(L

. SANDRA L. TOWNES
United States District Judge
Dated:

,2013

Brooklyn, New York

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