LG Capital Funding, LLC v. Wowio, Inc.

Filing 20

DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Clerk of Court is respectfully directed to vacate the notice of default entered on 3/10/17; the plaintiff's time to serve the defendant is extended, nunc pro tunc, to 5/12/17; the plaintiff's motion for default judgment is denied without prejudice; and the defendant is to respond to the complaint by 9/15/17. Ordered by Judge Ann M. Donnelly on 8/15/2017. (Greene, Donna)

FILED
IN CLERKS OFFICE

DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

if AUG 1 52017 -k
X

BROOKLYN OFFICE

LG CAPITAL FUNDING,LLC,
Plaintiff,

T>F.riS10N AND ORDER

- against -

16 Civ. 6632(AMD)

WOWIO,INC.,
Defendant,
X

ANN DONNELLY,District Judge.

The plaintiff, LG Capital Funding, LLC, commenced this diversity breach of contract
action on November 30, 2016, alleging that defendant Wowio,Inc. failed to make payments due
under three promissory notes. (ECF 1.)

The defendant did not plead otherwise or defend this action,resulting in an entry ofdefault
on March 10, 2017.(ECF 8.) On March 23, 2017, the plaintiff moved for default judgment

pursuant to Rule 55(b)(2)ofthe Federal Rules ofCivil procedure. The plaintiffpurportedly served
the defendant on December 13, 2016 through Amy Merkin, whom the plaintiff claimed was

"designated by law to accept service" on behalf of the defendant.(ECF 6.) The plaintiff now
concedes that Ms.Merkin was not actually the defendant's registered agent in Texas,where service

took place. The plaintiff asserts, however, that it served the defendant again on May 12, 2017.
(ECF 16.)

In a Report and Recommendation issued on June 13,2017,Magistrate Judge Roaime Mann
recommended that the Court vacate the notice of default entered on March 10, 2017 and extend

the plaintiffs time to serve the defendant, nunc pro tune, to May 12, 2017, since the plaintiff did
not properly serve the defendant at the outset of the litigation.(ECF 18 at 7-9.) Additionally, in
light of the "uncertainty surrounding plaintiffs service attempts and pending motion for default

judgment," Judge Mann recommended that the Court deny the plaintiffs motion for default
judgment without prejudice, and set a new date by which the defendant must respond to the
complaint.(ECF 18 at 8.) The defendants were served the Report and Recommendation on June
14, 2017. (ECF 19.) Neither party has objected to the Report and Recommendation within the
time prescribed by 28 U.S.C. § 636(b)(1).

In reviev^ng a Report and Recommendation,a district 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). Where,as here, no party has objected to the magistrate judge's recommendation,"a

district court need only satisfy itself 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

v. Smith,618 F.Supp.

1186,1189(S.D.N.Y. 1985)). I have reviewed Judge Mann's thorough and well-reasoned opinion,
and find no error. Accordingly, I adopt the Report and Recommendation in its entirety.

CONCLUSION

The Clerk ofCourt is respectfully directed to vacate the notice of default entered on March
10, 2017; the plaintiffs time to serve the defendant is extended, nunc pro tune, to May 12, 2017;
the plaintiffs motion for default judgment is denied without prejudice; and the defendant is to

respond to the complaint by September 15,2017.
SO ORDERED.

s/Ann M. Donnelly
Ann M. Donnelly
United States District Judge

Dated: Brooklyn, New York
August

,2017