Those Certain Underwirters at Lloyd's London Subscribing to Policy No.:B0501HF10AAZT 999 v. Art Crating, Inc. et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Accordingly, Plaintiffs Motion to Remand is GRANTED, Delta's Motion to Sever and Stay is DENIED, and the entire action is REMANDED to the Supreme Court of New York, Kings County. The Clerk of Court is directed to immediately send a certified copy of this Order to the Clerk of Civil Court of the City of New York, County of Kings, 120 Schermerhorn Street, Brooklyn, New York and to close the case in this court. 28 U.S.C. § 1447(c). So Ordered by Judge Nicholas G. Garaufis on 1/9/2014. (certified copy mailed to state court) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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THOSE CERTAIN UNDERWRITERS AT
LLOYD'S LONDON SUBSCRIBING TO
POLICY NO.: B0501HFlOAAZT999 a/s/o
EST ATE OF DAVID SMITH,
Plaintiff,

ORDER
-against12-CV-5078 (NGG) (VMS)

ART CRATING, INC., MASTERPIECE
INTERNATIONAL, LTD., ABC COMPANIES
1-5 (said corporations being fictitious, the true
names unknown, responsible for the design of the
crate used to transport Horizontal 9/4/52), ABC
COMPANIES 6-10 (said corporations being
fictitious, the true names unknown, said
corporations being responsible for the packing,
repacking, crating and re-crating of Horizontal
9/4/52), JOHN DOES 1-10 (said names being
fictitious, the true names unknown, said persons
being employees, agents or individuals
responsible for the design of the crate used to
transport Horizontal 9/4/52), and JOHN DOES
11-20 (said names being fictitious, the true names
unknown, said persons being employees, agents or
individuals responsible for the packing, repacking,
crating and re-crating of Horizontal 9/4/52),
Defendants.

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ART CRATING, INC.,
Third-party Plaintiff,
-againstDELTA AIR LINES, INC.,
Third-party Defendant.

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NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Those Certain Underwriters at Lloyd's London Subscribing to Policy No.:
B0501HFIOAAZT999 a/s/o Estate of David Smith ("Lloyd's") brought this action in the
Supreme Court of New York, Kings County, on September 4, 2012. (Not. of Removal &
Verified Compl. (Dkt. 1).) Lloyd's had insured the risk ofloss and damage to a sculpture created
by the late American sculptor David Smith and currently owned by his Estate ("the Sculpture").
(Verified Compl. at il 8.) Plaintiff alleged that damage to the Sculpture in transport from New
York City to Valencia, Spain, where it was to be exhibited, was due to negligence on the part of
a number of Defendants: Art Crating, Inc. ("Art Crating"); ABC Companies 1-5, fictitious names
for unknown corporations responsible for the design of the crate used the transport the Sculpture;
ABC Companies 6-10, fictitious names for unknown corporations responsible for the packing,
re-packing, crating, and re-crating of the Sculpture; John Does 1-10, fictitious names for
unknown employees, agents, or individuals responsible for the design of the crate used to
transport the Sculpture; and John Does 11-20, fictitious names for unknown employees, agents,
or individuals responsible for the packing, re-packing, crating, and re-crating of the Sculpture.
(Id. ilil 3-7.) Plaintiff added Masterpiece International, Ltd. ("Masterpiece") as a Defendant in its
Verified Amended Complaint filed in state court October 5, 2012.
On October 10, 2012, Art Crating removed this action to this court, pursuant to 28 U.S.C.
§ 1446 (Not. of Removal), and subsequently filed its Answer, asserting crossclaims against all
other Defendants. (Answer (Dkt. 4).) On December 20, 2012, Art Crating filed a Third-party
Complaint against Delta Air Lines, Inc. ("Delta"), alleging that Delta was liable for contribution
to or indemnification of Art Crating for any damages award that Plaintiff may recover, plus
costs. (Third-party Com pl. (Dkt. 11) ilil 12-13.)

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On April 2, 2013, Plaintiff filed a Motion to Remand the action to state court. (Mot. to
Remand (Dkt. 25).) Delta then filed a Motion to Sever on April 4, 2013, requesting that the
third-party action be severed and remain before the court pursuant to Federal Rule of Civil
Procedure 14(a)(4) regardless of the resolution of Plaintiffs Motion to Remand. (Mot. to Sever
& Stay (Dkt. 26).) Delta also requested that the third-party action be stayed pending the outcome
of the first-party action. (Id.)
The court referred the Motion to Remand and the Motion to Sever to Magistrate Judge
Vera M. Scanlon for a Report and Recommendation ("R&R") pursuant to 28 U.S.C.
§ 636(b)(l)(B) and Federal Rule of Civil Procedure 72(b)(l). (Nov. 5, 2013, Order; Nov. 14,

2013 Order.) On December 16, 2013, Judge Scanlon issued her R&R, recommending that
Plaintiffs Motion to Remand be granted and Delta's Motion to Sever be denied as moot. (R&R
(Dkt. 31 ).)
No party has objected to Judge Scanlon's R&R, and the time to do so has passed. See
Fed. R. Civ. P. 72(b)(2). (See also R&R at 45 ("Written objections to this Report and
Recommendation must be filed within fourteen days of service of this Report .... Failure to file
objections within the specified time waives the right to appeal.") (citations omitted).) Therefore,
the court reviews the R&R for clear error. See Gesualdi v. Mack Excavation & Trailer Serv.,
Inc., No. 09-CV-2502 (KAM), 2010 WL 985294, at *1 (E.D.N.Y. Mar. 15, 2010); La Torres v.
Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000); cf. 28 U.S.C. § 636(b)(l). Finding no clear
error, the court ADOPTS IN FULL the R&R. See Porter v. Potter, 219 F. App'x 112 (2d Cir.
2007).
Accordingly, Plaintiffs Motion to Remand is GRANTED, Delta's Motion to Sever and
Stay is DENIED, and the entire action is REMANDED to the Supreme Court of New York,

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Kings County. The Clerk of Court is directed to immediately send a certified copy of this Order
to the Clerk of Civil Court of the City of New York, County of Kings, 120 Schermerhorn Street,
Brooklyn, New York and to close the case in this court. 28 U.S.C. § 1447(c).
SO ORDERED.

s/Nicholas G. Garaufis
Dated:

I NICHOLAS G. GARAUFM

Brooklyn~New

January

York
, 2014

United States District Judge

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