Eng v. Cash et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 8 Motion to Dismiss; adopting Report and Recommendations as to 11 Report and Recommendations. Defendants' motion to dismiss the complaint is granted, the complaint is dismissed in its en tirety without prejudice and plaintiff is granted leave to file an amended complaint in accordance with the Report and this Order within 30 days from the date this Order is served upon her. SO ORDERED. Ordered by Judge Sandra J. Feuerstein on 9/28/2011. Copies mailed to pro se plaintiff on 9/29/11. (Brienza, Lauren)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

____________________________________ X
LILY ENG,
Plaintiff,

F fL E 0
ORDER
cv-to-3117(§¥.'~1<·c: o'~:-tce

-against-

.{)fSffilct COuRT E,D.N.Y

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RICK CASH, CHRISTINA BIRNER and
MARGARET MILIDANTRI,
Defendants.

___________________________________ X

SEP 2 8 2011

LONG JSLAND OFFICE

FEUERSTEIN, J.
Pending before the Court is the Report and Recommendation ("the Report") of Magistrate
Judge William D. Wall, dated July 5, 2011, recommending that defendants' motion to dismiss the
complaint pursuant to Rules 12(b)(l) and 12(b)(6) ofthe Federal Rules of Civil Procedure be
granted, that the complaint be dismissed in its entirety without prejudice and that plaintiff be
granted leave to file an amended complaint. No objections have been filed to the Report. For the
reasons stated herein, the Court accepts Magistrate Judge Wall's Report in its entirety.
I

Any portion of a report and recommendation on dispositive matters, to which a timely
objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(l); Fed.R.Civ.P. 72(b). The
court, however, is not required to review the factual findings or legal conclusions of the magistrate
judge as to which no proper objections are interposed. See, Thomas v. Am. 474 U.S. 140, 150,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate
judge on a dispositive matter, to which no timely objection has been made, the district judge need
only be satisfied that there is no clear error on the face ofthe record. See, Fed. R. Civ. P. 72(b);
Johnson v. Goard, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007), affd, 305 Fed. Appx. 815 (2d Cir.
1

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Jan. 1, 2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451,453 (E.D.N.Y. 2004), affd,
125 Fed.Appx. 374 (2d Cir. 2005). Whether or not proper objections have been filed, the district
judge may, after review, accept, reject, or modify any of the magistrate judge's findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
II

No party has filed any objections to Magistrate Judge Wall's Report. Upon review, the
Court is satisfied that the Report is not facially erroneous. Accordingly, the Court accepts
Magistrate Judge Wall's Report in its entirety. Defendants' motion to dismiss the complaint
pursuant to Rules 12(b)(l) and (6) of the Federal Rules of Civil Procedure is granted, the complaint
is dismissed in its entirety without prejudice and plaintiff is granted leave to file an amended
complaint in accordance with the Report and this Order within thirty (30) days from the date

this Order is served with notice of entry upon her. The Clerk of the Court shall serve notice of
entry ofthis Order in accordance with Rule 77(d)(l) ofthe Federal Rules of Civil Procedure,
including mailing a copy of the Order to the prose plaintiff at her last known address, see Fed. R.
Civ. P. 5(b)(2)(C).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of
any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d 21
(1962).

SO ORDERED.

J7

/

u

SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 28, 2011
Central Islip, New York
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