McDonald v. Elkholy

Filing 36

DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. Ordered by Judge Ann M. Donnelly on 8/14/2017. (Greene, Donna)

FILED
IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

^ AUG 1 5 2017

5

X

BROOKLYN OFFICE

ROBERT E. MCDONALD,
Plaintiff,

DECISION AND ORDER

- against -

ADOPTING REPORT &
RECOMMENDATION

AHMED Y.ELKHOLU,

16 Civ. 2201(AMD)
(LB)
Defendant.
X

ANN DONNELLY,District Judge.

The pro se plaintiff, Robert E. McDonald,brings this diversity action against his friend and
former business partner, Ahmed Elkholy, the pro se defendant. This dispute stems from property
that the plaintiff stored in the defendant's garage for more than six years. The plaintiff alleges

violations ofNew York state contract and tort law in connection with that property.' (ECF 1.)
On November 29, 2016, the defendant moved to dismiss the plaintiffs complaint in its
entirety. (ECF No. 17.) Before setting a briefing schedule. Magistrate Judge Lois Bloom held a
number of conferences in an effort to convince the parties to resolve their differences. (ECF 20.)

The parties could not come to an agreement, and the plaintiff responsed to the defendant's motion
to dismiss on March 14,2017. (ECF 33.) The plaintifffiled his reply briefon April 4,2017.(ECF
34.) 1 referred the fully briefed motion to dismiss to Judge Bloom for a report and recommendation
as to whether the motion should be granted.

' A thorough explanation of the relevant facts are set forth in Magistrate Judge Lois Bloom's report and
recommendation. (ECF 35, at 1-3.)
1

On July 27, 2017, Judge Bloom issued a thoughtful and thorough report recommending

that the defendant's motion to dismiss be granted in part and denied in part,^ (EOF 35.) Judge
Bloom recommended that I grant the defendant's motion to dismiss all of the plaintiffs claims,
except for his claim for conversion. While Judge Bloom also advised that any objections must be
filed within fourteen days of receipt ofthe report, neither party has filed any objections.

In considering a report and recommendation, the court "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). A district court is not required to review the factual or legal conclusions of a
magistrate judge as to those portions of a report and recommendation to which no objections are
addressed. See Thomas v. Arn, 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 ofHuntington, No.05 Civ. 339,2007 WL 2027913, at *2(E.D.N.Y. July 11, 2007).
In addition to Judge Bloom's report and recommendation, I have reviewed the complaint
and the parties' submissions. I find that the report and recommendation is well-reasoned,
thorough, and without any factual or legal errors. Thus, I adopt it in its entirety.
Accordingly, I adopt Judge Bloom's report and reconunendation in its entirety. The
defendant's motion to dismiss the plaintiffs promissory estoppel, breach offiduciary duty, unjust
enrichment, constructive trust, injurious falsehood, intentional infliction of emotional distress,

negligence,fraud,fraudulent misrepresentation,and negligent misrepresentation claims is granted.
The defendant's motion to dismiss the plaintiffs claim for conversion is denied.
SO ORDERED.

^ On the same day, Judge Bloom's chambers mailed copies of the report and recommendation to the parties via first
class mail.

s/Ann M. Donnelly
Ann M.Donnelly

United States District Judge
Dated: Brooklyn, New York
August 14,2017