Lunger et al v. Iberostar Hotels & Resorts

Filing 93

ORDER ADOPTING REPORT AND RECOMMENDATIONS IT IS HEREBY ORDERED that the motion to dismiss the complaint with prejudice (ECF No. 90) is granted. The Clerk of the Court shall close the case.IT IS FURTHER ORDERED that the defendant serve a copy of this Order on plaintiffsOrdered by Judge Joseph F. Bianco on 2/7/2019. (Bollbach, Jean)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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EDWARD E. LUNGER and
LINDA M. LUNGER,
Plaintiffs,
ORDER
13-CV-4699 (JFB)(ARL)

-againstIBEROSTAR HOTELS & RESORTS,
Defendant.

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FILED

IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.

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FEB 07 2019

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LONG ISLAND OFFICE

JOSEPH F. BIANCO, District Judge:
On December 20, 2018, Magistrate Judge Lindsay issued a Report and Recommendation
(the "R&R," ECF No. 91) recommending that the Court grant the motion to dismiss for lack of
prosecution filed by defendant Iberostar Hotels & Resorts. (ECF No. 90.) The R&R was served
on plaintiffs on December 27, 2019. (ECF No. 92.) The R&R instructed that any objections to
the R&R be submitted within fourteen ( 14) days of service of the R&R, i.e., by January 10,
2019. (R&R 3.) The date for filing any objections has thus expired, and plaintiffs have not filed
any objection to the R&R. For the reasons set forth below, the Court adopts the thorough and
well-reasoned R&R in its entirety, grants the motion to dismiss the complaint with prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Where there are no objections to a report and recommendation issued by a magistrate
judge, the Court may adopt the 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 plaintiffs have waived any objection to the R&R and thus de novo review is not
required, the Court has conducted a de novo review of the R&R in an abundance of caution. As
noted in the R&R, applying the factors for failure to prosecute under Rule 41 (b ), it is clear that
the complaint should be dismissed with prejudice. Particularly, with regard to factor (1), the
Court notes this matter has been pending since 2013 (ECF No. 1), that plaintiffs' lack of
communication with counsel caused counsel to withdraw (ECF. No. 87), and that plaintiffs have
failed to respond or otherwise appear since Magistrate Judge Lindsay extended plaintiffs'
deadline to show cause on September 20, 2018, and thus concludes that plaintiffs' failure to
prosecute has caused a delay of significant duration in this matter. As to factor (2), plaintiffs
were warned by Magistrate Judge Lindsay on at least two occasions that continued failure to
respond would result in dismissal with prejudice. (See ECF No. 87; Order dated 9/20/18.) As
regards factor (3 ), it is apparent to the Court that defendant would be prejudiced by the burden of
continuing to retain counsel if required to continue to defend this action. As to factor (4), the

Court concludes that plaintiffs have been provided ample opportunity to be heard, and that the
Comi's interest in managing its docket should prevail in this instance. Finally, with regard to
factor (5), the Court has considered the efficacy of lesser sanctions and determined them to be
insufficient, as evidenced by the repeated warnings and extensions provided to plaintiffs in this
matter.
In sum, having conducted a review of the Complaint, the motion papers, and the
applicable law, and having reviewed the R&R de novo, the Court adopts the findings and
recommendations contained in the R&R in their entirety. Accordingly,
IT IS HEREBY ORDERED that the motion to dismiss the complaint with prejudice
(ECF No. 90) is granted. The Clerk of the Court shal l close the case.
IT IS FURTHER ORDERED that the defendant serve a copy of this Order on plaintiffs.

so G.RJ)pR:Bp.

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j/ JOSEPH F BIANCO
JO~ H F. J3'fANCO

V
Dated:

7,

February
2019
Central Islip, NY

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EfnfrATES DISTRICT JUDGE