Ferrara et al v. BD Haulers Inc. et al

Filing 47

ORDER ADOPTING REPORT AND RECOMMENDATIONS re 44 ; 39 granted. Accordingly, IT IS HEREBY ORDERED that Gillette shall appear before this Court on Monday, September 24, 2018, at 4:30 p.m. to show cause as to why he should not be adjudged in contempt of the November 12, 2016, December 16, 2016, and October 23, 2017 Orders issued by Judge Spatt, by reason of the certified facts set forth in Judge Lindsay's R&R. Gillette is warned that failure to respond to this Order may result in the imposit ion of sanctions against him, including contempt of court. IT IS FURTHER ORDERED that plaintiffs shall personally serve a copy of this Order on Gillette and file proof of service with the Court. Ordered by Judge Joseph F. Bianco on 8/22/2018. (Cubano, Jazmin)

FILED

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,

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
JOSEPH A. FERRARA, SR., et al.,

*

AUG 22 2018

*

LONG ISLAND OFFICE

Plaintiffs,
-against-

ORDER
11-CV-0940 (JFB)(ARL)

BD HAULERS INC., et al.,
Defendants.
---------------------------------------------------------------X
JOSEPH F. BIANCO, District Judge:
On February 22, 2018, plaintiffs moved for an Order findingpro se defendant Frank
Gillette in contempt. (Dkt. Nos. 39-41.) By Order dated February 24, 2018, Judge Arthur D.
Spatt 1 referred the matter for a recommendation regarding whether plaintiffs' motion for
contempt should be granted, and if so, what relief should be awarded. (Dkt. No. 42.)
Presently before the Court is a Report and Recommendation from Magistrate Judge
Arlene R. Lindsay ("R&R," Dkt. No. 44), certifying facts giving rise to Gillette's contempt and
recommending that the Court issue an order requiring Gillette to appear before the Court on a
date certain to show cause as to why he should not be adjudged in contempt for failure to comply
with the November 12, 2016, December 16, 2016, and October 23, 2017 Orders issued by Judge
Spatt. The R&R also recommends that plaintiffs be awarded sanctions in the amount of
$5,557.25 in attorney's fees and $1,704.23 in costs. (R&R at 6.) · The R&R was personally
served on Gillette on May 2, 2018. (Dkt. No. 45.) The R&R instructed that any objections be
submitted within fourteen (14) days. (R&R at 6-7.) The date for filing any objections has thus
expired, and no party has filed any objection to the R&R.

1

By Order dated May 30, 2018, Judge Spatt recused himself from the case. {0kt. No. 46.) The case was reassigned
to the undersigned that same day.

Where there are no objections, the Court may adopt a report and recommendation without

de novo review. See Thomas v. Arn, 474 U.S. 140, 150 ( 1985) ("It does not appear that Congress
intended to require district court review of a magistrate's factual or legal conclusions, under a de

novo or any other standard, when neither party objects to those findings."); see also Mario v. P &
C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the
consequences, failure timely to object to a magistrate's report and recommendation operates as a
waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. § 636(b)(l)(c) and
Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the
failure to file timely objections is not jurisdictional, a district judge may still excuse the failure to
object in a timely manner and exercise its discretion to decide the case on the merits to, for
example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause
the waiver rule is non jurisdictional, we 'may excuse the default in the interests of justice."'
(quoting Thomas, 474 U.S. at 155)).
Although no party has objected to the R&R, the Court has conducted a de novo review of
the R&R in an abundance of caution. Having conducted a review of the record and the
applicable law, and having reviewed the R&R de novo, the Court adopts the R&R's findings and
recommendation Court issue an order requiring Gillette to show cause as to why he should not be
held in civil contempt. The Court, however, defers ruling on any request for sanctions until
Gillette has an opportunity to be heard with respect to the civil contempt.
Accordingly, IT IS HEREBY ORDERED that Gillette shall appear before this
Court on Monday, September 24, 2018, at 4:30 p.m. to show cause as to why he should not
be adjudged in contempt of the November 12, 2016, December 16, 2016, and October 23,

2

2017 Orders issued by Judge Spatt, by reason of the certified facts set forth in Judge
Lindsay's R&R. Gillette is warned that failure to respond to this Order may result in the
imposition of sanctions against him, including contempt of court.
IT IS FURTHER ORDERED that plaintiffs shall personally serve a copy of this Order on
Gillette and file proof of service with the Court.
The Court certifies pursuant to 28 U.S.C. § l 915(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 (1962).

S~D;

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Dated:

August~ 2018
Central Islip, New York

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