George & Company LLC v. Spin Master Corp. et al

Filing 122

MEMORANDUM & ORDER: As set forth in the attached Memorandum & Order, the Court adopts the November 29, 2023 Report and Recommendation of Magistrate Judge Sanket J. Bulsara, ECF No. 117; Plaintiff's motion to enforce settlement, ECF No. 10 5, and Defendants' motion to enforce settlement, ECF No. 107, are each GRANTED in part and DENIED in part as specified in the R&R; with respect to Case Nos. 19-CV-04391 (DG) (SJB), 19-CV-04883 (DG) (SJB), and 21-CV-04254 (DG) (SJB), the relevant parties shall, by February 20, 2024, jointly file on the relevant docket a proposed Judgment consistent with this Order; and Defendant Target Corporation's motion to dismiss, ECF No. 25 in Case No. 21-CV-04254 (DG) (SJB), is DENIED as moot. Ordered by Judge Diane Gujarati on 2/5/2024. (ECS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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George & Company LLC,
Plaintiff,
-against-

MEMORANDUM & ORDER
19-CV-04391 (DG) (SJB)

Spin Master US Holdings, Inc., Spin Master, Inc.,
Cardinal Industries, Inc., WalMart, Inc., and Joel
Berger,
Defendants.
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DIANE GUJARATI, United States District Judge:
On November 29, 2023, Magistrate Judge Sanket J. Bulsara issued a Report and
Recommendation (“R&R”) recommending that Plaintiff’s motion to enforce settlement, ECF No.
105, be granted in part and denied in part and that Defendants’ motion to enforce settlement,
ECF No. 107, be granted in part and denied in part. See generally R&R, ECF No. 117. 1
Specifically, the R&R recommended that the Neutral’s Proposal be interpreted to extend only to
the United States and Canada; that the motions be denied insofar as they seek any other form of
relief or interpretation of the Neutral’s Proposal; and that the Clerk of Court enter judgment
consistent with the R&R’s interpretation of the Neutral’s Proposal and close Case Nos. 19-CV04391 (DG) (SJB), 19-CV-04883 (DG) (SJB), and 21-CV-04254 (DG) (SJB). See R&R at 27. 2

1

ECF No. 117 is the redacted version of the R&R. ECF No. 115 is the unredacted, sealed
version of the R&R, which references settlement amount. The Court has considered both
versions of the R&R and their respective attachments. The Court cites herein only to the
publicly available R&R, ECF No. 117.

2

Although the R&R was issued only on the docket for Case No. 19-CV-04391 (DG) (SJB), the
R&R is with respect to all three of the above-referenced cases, see generally R&R, and
familiarity with the detailed procedural history and background of all three cases is assumed
herein.

On December 13, 2023, Plaintiff filed its objections to the R&R, styled as a response to
the R&R. See Plaintiff’s Response to R&R (“Pl.’s Obj. Br.”), ECF No. 119. In its objections
briefing, Plaintiff argues that the Court should find that the Neutral’s Proposal “applies only to
the territorial extent of the United States.” See Pl.’s Obj. Br. at 11. Specifically, Plaintiff argues
(1) that there is no latent ambiguity in the Neutral’s Proposal and, therefore, extrinsic evidence
should not be considered; and (2) that even if extrinsic evidence is considered, it supports the
notion that the parties only contemplated that the Neutral’s Proposal would apply to U.S.
domestic activity. See Pl.’s Obj. Br. at 4-11.
Defendants did not file any objections to the R&R but did file a response to Plaintiff’s
objections in which Defendants argue, inter alia, that clear error review applies and that the
Court should adopt the R&R without modification. See generally Defendants’ Response to
Plaintiff’s Objections to R&R (“Defs.’ Obj. Br.”), ECF No. 121. 3
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); see also Fed. R. Civ. P.
72(b)(3). A district court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that a district court “must determine de
novo any part of the magistrate judge’s disposition that has been properly objected to”); Arista
Recs., LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (“As to a dispositive matter, any part of
the magistrate judge’s recommendation that has been properly objected to must be reviewed by
the district judge de novo.”); Lorick v. Kilpatrick Townsend & Stockton LLP, No. 18-CV-07178,

3

In a footnote in their objections briefing, Defendants request that, should the Court find –
contrary to the R&R – that the Neutral’s Proposal is unambiguous, the Court should conclude
that the Neutral’s Proposal is worldwide in scope. See Defs.’ Obj. Br. at 8 n.5.
2

2022 WL 1104849, at *2 (E.D.N.Y. Apr. 13, 2022). To accept those portions of an R&R to
which no timely objection has been made, however, “a district court need only satisfy itself that
there is no clear error on the face of the record.” Lorick, 2022 WL 1104849, at *2 (quoting Ruiz
v. Citibank, N.A., No. 10-CV-05950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014)); see
also Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011).
The Court has reviewed the R&R de novo. A review of the R&R, the record, and the
applicable law reveals that Judge Bulsara properly concluded that the parties’ respective motions
should be granted in part and denied in part as specified in the R&R. The Court therefore adopts
the R&R.
Plaintiff’s motion to enforce settlement, ECF No. 105, and Defendants’ motion to enforce
settlement, ECF No. 107, are each GRANTED in part and DENIED in part as specified in the
R&R. See R&R at 27. 4
With respect to each of the cases at issue – Case Nos. 19-CV-04391 (DG) (SJB), 19-CV04883 (DG) (SJB), and 21-CV-04254 (DG) (SJB) – the relevant parties are directed to, by
February 20, 2024, jointly file on the relevant docket a proposed Judgment consistent with this
Order.
SO ORDERED.
/s/ Diane Gujarati
DIANE GUJARATI
United States District Judge
Dated: February 5, 2024
Brooklyn, New York

4

In light of the above, Defendant Target Corporation’s motion to dismiss, ECF No. 25 in Case
No. 21-CV-04254 (DG) (SJB), is DENIED as moot.
3