Galvez et al v. Aspen Corporation et al

Filing 49

MEMORANDUM AND ORDER: This Court ADOPTS Magistrate Judge Tomlinson's report and recommendation in its entirety, and therefore GRANTS Defendants' motion to dismiss this action for lack of prosecution. Ordered by Judge William F. Kuntz, II on 11/21/2013. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOSE GALVEZ, ELIGJO HERNANDEZ,
DOUGLAS LUND, DONALD A. MORRIS, and
WILLIAM SCHAFER,

MEMORANDUM AND ORDER
09-cv-4493 (WFK) (AKT)

Plaintiffs,
-againstASPEN CORPORATION and/or ASPEN
IRRIGATION INC. and/or MANAGEMENT
CONSULTING LABORERS and any related
corporate entities, DONALD ADKINS, RONALD
ADKINS, and THE CINCINNATI INSURANCE
COMPANY,
Defendants.

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WILLIAM F. KUNTZ, II, United States District Judge
On October 31, 2013, United States Magistrate Judge Kathleen Tomlinson issued a report
and recommendation recommending that this Court dismiss Plaintiffs' complaint for lack of
prosecution. Dkt. No. 46. For the reasons set forth below, Magistrate Judge Tomlinson's report
and recommendation is ADOPTED in its entirety. Accordingly, the Court GRANTS
Defendants' motion to dismiss this action.
A district court reviewing a report and recommendation "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)(l)(C); see also McGrigs v. Killian, No. 08 Civ. 6238,2009 WL 3762201, at *2 (S.D.N.Y.
Nov. 10,2009) (Berman, J.). Under 28 U.S.C. § 636(b)(I) and Rule 72(b)(2) of the Federal
Rules of Civil Procedure, parties may submit "specific written objections" to a magistrate
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judge's report and recommendation "[w]ithin 14 days after being served with a copy of the
recommended disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(I). A party's
"failure to object timely to a magistrate's report operates as a waiver of any further judicial
review of the magistrate's decision." F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566,569 (2d Cir.
1995) (internal quotation marks omitted).
Where, as here, a party does not object to a report and recommendation, "a district court
need only satisfy itself that there is no clear error on the face of the record." Reyes v. Mantello,
No. 00 Civ. 8936,2003 WL 76997, at *1 (S.D.N.Y. Jan. 9, 2003) (Cote, J.) (internal quotation
marks omitted); see also Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224,
226 (S.D.N.Y. 2008) (Marrero, J.) ("A district court evaluating a Magistrate Judge's report and
recommendation may adopt those portions of the ... report to which no 'specific written
objection' is made, as long as the factual and legal bases supporting the findings and conclusions
set forth in those sections are not clearly erroneous or contrary to law.") (quoting Fed. R. Civ. P.
neb»~.

No objections to Magistrate Judge Tomlinson's report and recommendation have been
filed. Accordingly, this Court has reviewed the report and recommendation for clear error only.
Magistrate Judge Tomlinson's report thoroughly reviewed the procedural history of this
action. See generally Dkt. No. 46. This Court also observes that Plaintiffs have not filed any
communication with this Court since November 9,2012, when Plaintiffs filed their motion for
attorney fees. See Dkt. Nos. 35-40. Plaintiffs did not object to Magistrate Judge Tomlinson's
earlier report and recommendation, which recommended Plaintiffs' motion for attorney fees be
denied, nor did Plaintiffs respond to Defendants' motion to dismiss this action for lack of
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prosecution. Plaintiffs also failed to respond to Magistrate Judge Tomlinson's order of August
30,2013 "directing Plaintiffs' counsel to notify the Court in writing by September 6,2013
whether Plaintiffs intend to move forward with the case, withdraw the case, or take some other
action." Dkt. No. 46 at 3 (citing Aug. 30. 2013 Dkt. Entry). Accordingly, Magistrate Judge
Tomlinson recommended dismissal of this action pursuant to Rule 4l(b) of the Federal Rules of
Civil Procedure, which permits a district court "to dismiss a complaint for 'failure to comply
with a court order, treating the noncompliance as a failure to prosecute. '" Id. at 3 (quoting

Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995)); see also Fed. R. Civ. P. 41(b). This Court
finds no clear error in this analysis, or in the report and recommendation overall.
For the foregoing reasons, this Court ADOPTS Magistrate Judge Tomlinson's report and
recommendation in its entirety, and therefore GRANTS Defendants' motion to dismiss this
action for lack of prosecution. The Clerk of the Court is ORDERED to close this action.

SO ORDERED
Dated: Brooklyn, New York
November 21, 2013

s/WFK
HON. WILLIA

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