Eng v. Cash et al

Filing 22

ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS and granting 17 Motion to Dismiss for Failure to State a Claim. SO ORDERED that the Court acceptsMagistrate Judge Wall's Report in its entirety. Defts' motion to dismiss the amended complai nt pursuant to Rules 12(b)(l) and (6) of the Federal Rules of Civil Procedure is granted and the amended complaint is dismissed in its entirety with prejudice. The Clerk of the Court shall close this case and serve notice of entry of this Order in ac cordance with Rule 77(d)(l) of the Federal Rules of Civil Procedure, including mailing a copy of the Order to the prose plaintiff at her last known address. 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. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 3/26/2012. (Florio, Lisa)

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IN CLERl<'S OFFICE N y
U S OISTRICi COURT E 0

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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LONG 1: •t\ND OFFICE
LILY ENG,
Plaintiff,

ORDER
CV-10-3117(SJF)(WDW)

-againstRICK CASH, CHRISTINA BIRNER and
MARGARET MILIDANTRI,
Defendants.

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FEUERSTEIN, J.

Pending before the Court is the Report and Recommendation ("the Report") of Magistrate
Judge William D. Wall, dated March 8, 2012, recommending that defendants' motion to dismiss
the amended complaint pursuant to Rules l2(b)(l) and l2(b)(6) of the Federal Rules of Civil
Procedure be granted and that plaintiff's amended complaint be dismissed in its entirety for lack of
subject matter jurisdiction. No objections have been filed to the Report. For the reasons stated
herein, the Court accepts Magistrate Judge Wall's Report in its entirety.

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 of the record. See, Fed. R. Civ. P. 72(b);
I

'
Johnson v. Goord, 487 F.Supp.2d 377,379 (S.D.N.Y. 2007), affd, 305 Fed. Appx. 815 (2d Cir.
Jan. I, 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)(l); 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 amended
complaint pursuant to Rules 12(b)(l) and (6) of the Federal Rules of Civil Procedure is granted and
the amended complaint is dismissed in its entirety with prejudice. The Clerk of the Court shall
close this case and serve notice of entry ofthis Order in accordance with Rule 77(d)(l) of the
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 Copoedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed.2d 21
(1962).

SO ORDERED.

s/ Sandra J. Feuerstein
SANDRA J. FEUERSTEIN
United States District Judge
Dated: March 26, 2012
Central Islip, New York
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