HVT, Inc. v. Port Authority of New York and New Jersey

Filing 103

ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Order, the Court adopts 101 Magistrate Judge Vera M. Scanlon's report and recommendation. Ordered by Chief Judge Margo K. Brodie on 9/15/2023. (TD)

Case 1:15-cv-05867-MKB-VMS Document 103 Filed 09/15/23 Page 1 of 4 PageID #: 1313

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------HVT, INC.,
Plaintiff,
v.

ORDER
15-CV-5867 (MKB) (VMS)

PORT AUTHORITY OF NEW YORK AND NEW
JERSEY,
Defendant.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff HVT, Inc. commenced the above-captioned action on October 13, 2015, against
Defendant Port Authority of New York and New Jersey, pursuant to 42 U.S.C. §§ 1983 and
1988, alleging deprivation of property without due process in violation of the Fourteenth
Amendment and the New York State Constitution as well as claims for declaratory relief,
replevin, and municipal liability due to Defendant impounding a vehicle at John F. Kennedy
International Airport following the driver’s arrest. (Compl., Docket Entry No. 1.) On March 21,
2018, following the parties’ cross-motions for summary judgment,1 the Court adopted an
unopposed report and recommendation from Magistrate Judge Vera M. Scanlon, which, inter
alia, awarded Plaintiff nominal damages against Defendant, permitted Plaintiff to move for
compensatory damages and attorneys’ fees, and required the parties to submit joint proposed
revised regulations or procedures for the Court’s review. (Mem. & Order, Docket Entry No. 34.)
The parties then exchanged drafts of proposed rules and regulations and submitted letters to the

1

(Def. Mot. for Summ. J., Docket Entry No. 18; Def. Mem. of Law in Supp. of Def.
Mot. for Summ. J., Docket Entry No. 20; Pl. Mot. for Summ. J., Docket Entry No. 25; Pl. Mem.
of Law in Supp. of Pl. Mot., Docket Entry No. 25-4.)

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Court outlining their respective positions.2 On August 26, 2021, the Court adopted an
unopposed report and recommendation from Judge Scanlon requiring that (1) within five
business days of a vehicle seizure, the Port Authority Police Department must send notice of the
seizure to titled owners, registered owners and lienholders via certified mail; (2) the notice
should indicate the right to a hearing; (3) the notice should explain the hearing process; and (4)
the titled owner, registered owner or lienholder is responsible for paying the towing fee when a
car must be seized and towed for safekeeping after the arrest of the driver. (Order Adopting Rep.
& Recommendation, Docket Entry No. 78.)
On November 4, 2022, Plaintiff filed a motion for attorneys’ fees, which Defendant
opposed. (Pl.’s Mot. for Att’ys’ Fees & Costs (“Pl.’s Mot.”), Docket Entry No. 88; Def.’s Mem.
in Opp’n to Pl.’s Mot. (“Def.’s Mem.”), Docket Entry No. 96.) On November 10, 2022, the
Court referred Plaintiff’s motion to Judge Scanlon for a report and recommendation. (Order
referring Mot. dated Nov. 10, 2022.) By report and recommendation dated August 22, 2023,
(“R&R”) Judge Scanlon recommended granting in part and denying in part Plaintiff’s motion.
(R.&R, Docket Entry No. 101.) Judge Scanlon recommended that the Court award Plaintiff
attorneys’ fees in the amount of $92,263.50 and costs of $121.00, for a total award of
$92,384.50. (Id.)
No objections to the R&R have been filed and the time for doing so has passed.

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(See Letter dated Nov. 1, 2018, Docket Entry No. 53; Status Rep., Docket Entry No.
61; Mot. for Clarification, Docket Entry No. 64; Mot. for Extension of Time to File Proposed
Revised Rules and Regulations, Docket Entry No. 67; Second Mot. for Extension of Time to File
Proposed Revised Rules and Regulations, Docket Entry No. 68; Status Rep., Docket Entry No.
73; Status Rep., Docket Entry No. 75.)
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I.

Discussion
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). “Where parties receive clear notice of the consequences, failure to
timely object to a magistrate[] [judge’s] report and recommendation operates as a waiver of
further judicial review of the magistrate[] [judge’s] decision.” Smith v. Campbell, 782 F.3d 93,
102 (2d Cir. 2015) (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002));
see also Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022) (“[T]his court has
‘adopted the rule that when a party fails to object timely to a magistrate[] [judge’s]
recommended decision, it waives any right to further judicial review of that decision.’” (internal
quotation marks omitted) (quoting Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988)));
Phillips v. Long Island R.R. Co., 832 F. App’x 99, 100 (2d Cir. 2021) (observing the same rule);
Almonte v. Suffolk Cnty., 531 F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to
object to any purported error or omission in a magistrate judge’s report waives further judicial
review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Sepe v. N.Y.
State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (“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.’” (first quoting United States v. Male Juv., 121 F.3d 34,
38 (2d Cir. 1997); and then citing Thomas v. Arn, 474 U.S. 140, 155 (1985))); 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 [r]eport
and [r]ecommendation if the party fails to file timely objections designating the particular issue.”

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(first citing Cephas, 328 F.3d at 107; and then citing Mario, 313 F.3d at 766)).
The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R
pursuant to 28 U.S.C. § 636(b)(1).
II. Conclusion
Accordingly, the Court adopts the R&R and awards Plaintiff attorneys’ fees in the
amount of $92,263.50 and costs of $121.00, for a total award of $92,384.50.
Dated: September 15, 2023
Brooklyn, New York
SO ORDERED:

s/ MKB
MARGO K. BRODIE
United States District Judge

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