Hoikam Garment Co., Ltd. v. Rand International Acquisition LLC
Filing
28
MEMORANDUM OF DECISION AND ORDER - The Court has reviewed Judge Walls Report and finds it to be persuasive and without any legal or factual errors. There being no objection to Judge Walls Report, it is hereby ORDERED, that Judge Walls 27 Report an d Recommendation is adopted in its entirety and Hoikams complaint is dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute, and it is further ORDERED, that the Clerk of the Court is directed to close this case. Ordered by Senior Judge Arthur D. Spatt on 9/9/11. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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HOIKAM GARMENT CO., LTD,
Plaintiff,
-against-
MEMORANDUM OF
DECISION AND ORDER
09-CV-47 (ADS)(WDW)
RAND INTERNATIONAL ACQUISITION
LLC,
Defendant.
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APPEARANCES:
Wellman & Warren LLP
Attorneys for the plaintiff
24411 Ridge Route Road Suite 200
Laguna Hills, CA 92653
By: Brooke C. Robinson, Esq.
Cathy Zotti, Esq.
Scott Wellman, Esq., Of Counsel
Kreinces & Rosenberg, P.C.
Attorneys for the defendant
900 Merchants Concourse, Suite 305
Westbury, NY 11590
By: Howard Rosenberg, Esq.
SPATT, District Judge.
Presently before the Court is a Report and Recommendation by United States
Magistrate Judge William D. Wall dated July 26, 2011 (“the Report”), recommending
that the Court dismiss this case pursuant to Federal Rule of Civil Procedure (“Fed. R.
Civ. P.”) 41(b) based on the plaintiff’s failure to comply with the court’s orders of March
25, 2010 and May 18, 2011. For the reasons set forth below, the Court adopts the Report
in its entirety.
On October 7, 2008 the Hoikam Garment Co., Ltd (“Hoikam”) commenced this
action against Rand International Acquisition LLC (“Rand”) in the Southern District of
New York. Subsequently, on January 5, 2009, the case was transferred to the Eastern
District of New York. On February 11, 2009, Rand answered the complaint and asserted
three counterclaims against Hoikam.
On March 25, 2010, counsel for Rand wrote to Judge Wall in advance of a pretrial
conference in order to advise the court that an involuntary bankruptcy petition had been
filed against Rand and therefore the above-captioned case was subject to an automatic
stay. As a result, Judge Wall adjourned the conference and issued an order dated March
25, 2010 directing the parties to file a status letter by October 1, 2010.
Neither party submitted a status a letter on or after October 1, 2010. Thus, on
May 18, 2011, Judge Wall entered an order for a written status report stating:
Counsel for plaintiff shall inform the court in writing,
within ten days of the date of this order, of the present
status of this case. . . . Failure to respond could result in a
report and recommendation that the case be dismissed.
(Docket Entry 26.) Despite being informed of the potential consequences, the plaintiff
did not respond to the May 18, 2011 order. Accordingly, based on the plaintiff’s failure
to comply with the March 25, 2010 order and the May 18, 2011 order, Judge Wall issued
the Report on July 26, 2011 recommending that this Court dismiss the case pursuant to
Fed. R. Civ. P. 41(b) for failure to prosecute. To date, there have been no objections filed
to the Report.
In reviewing a report and recommendation, a 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). “To accept the report and recommendation of a magistrate, to
which no timely objection has been made, a district court need only satisfy itself that
there is no clear error on the face of the record.” Wilds v. United Parcel Serv., 262 F.
Supp. 2d 163, 169 (S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985)). The Court has reviewed Judge Wall’s Report and finds it to be
persuasive and without any legal or factual errors. There being no objection to Judge
Wall’s Report, it is hereby
ORDERED, that Judge Wall’s Report and Recommendation is adopted in its
entirety and Hoikam’s complaint is dismissed pursuant to Fed. R. Civ. P. 41(b) for failure
to prosecute, and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
September 9, 2011
___/s/ Arthur D. Spatt______
ARTHUR D. SPATT
United States District Judge
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