Badu et al v. Allen et al
ORDER - Based on the foregoing, the Court overrules the Plaintiffs Objections and adopts the October 29, 2015 14 Report and Recommendation of Magistrate Judge Locke in its entirety. Accordingly, the Plaintiffs 12 motion for a default judgment is denied and this action is dismissed without prejudice to refiling at a later date, if it is appropriate to do so. The Clerk of the Court is directed to close this case. So Ordered by Judge Arthur D. Spatt on 1/22/2016.c/ecf Judgment Clerk. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ENTERPRISE and FREDA O. BONSU,
1/22/2016 2:35 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
-againstELIZABETH ALLEN and CARS FOR LESS
Jack M. Bernard, Esq.
Attorney for the Plaintiffs
100 South Broad Street
Philadelphia, PA 19110
Cars for Less a/k/a Copart
SPATT, District Judge:
On February 25, 2014, the Plaintiffs Kwabena Badu t/a Kwabenabe
Enterprise (“Badu”) and Freda O. Bonsu (“Bonsu,” together with Badu, the
“Plaintiffs”) commenced this action against the Defendants Elizabeth Allen (“Allen”)
and Cars for Less a/k/a Copart (“Copart”), alleging violations of the Federal
Odometer Act, 49 U.S.C. § 32701 et seq., a subchapter of the Federal Motor Vehicle
Information and Cost Savings Act (the “Odometer Act”).
On March 28, 2015, the Plaintiffs filed a motion, pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) 55, seeking a default judgment against Copart
On March 29, 2015, this Court referred the motion to United States
Magistrate Judge Steven I. Locke for a recommendation as to whether the motion
for a default judgment should be granted, and if so, the appropriate amount of
damages, including costs and attorneys’ fees.
On October 29, 2015, Judge Locke issued a Report and Recommendation (the
“R&R”), recommending that the motion be denied and no damages be awarded. In
view of the fact that the Defendants have not appeared in this action, Judge Locke
further recommended that, if this Court were to adopt the R&R, the complaint
should be dismissed without prejudice, and the Plaintiffs be granted leave to file an
Presently before the Court are objections to the R&R (the “Objections”),
which were timely filed by the Plaintiffs on November 5, 2015, pursuant to
28 U.S.C. § 636(b)(1).
The relevant factual background of this case is appropriately set forth in
Judge Locke’s R&R, and will not be repeated here.
Therefore, after an initial
discussion of the law, the Court will review the Plaintiffs’ Objections.
The Standard of Review
To the extent that the Plaintiffs make specific and timely written objections
to the R&R, the Court must review de novo those portions of the report to which
objection is made. See Leser v. United States Bank Nat’l Ass’n, 09-cv-2362, 2013
28 U.S.C. § 636(b)(1)(C)). In this regard, “[d]e novo review requires that the court
‘give fresh consideration to those issues to which specific objections have been
made’ ” and “examine the entire record, and make an independent assessment of
the magistrate judge’s factual and legal conclusions.’ ” Singleton v. Caron, 03-cv455, 2006 U.S. Dist. LEXIS 49117, at *5-*6 (N.D.N.Y. July 18, 2006) (quoting
Almonte v. N.Y. State Div. of Parole, 04-cv-484, 2006 U.S. Dist. LEXIS 2926, at *15
(N.D.N.Y. Jan. 18, 2006)). After review, “the district court ‘may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge.’ ”
Leser, 2013 U.S. Dist. LEXIS 32464, at *6 (quoting
28 U.S.C. § 636(b)(1)).
However, “where ‘the objecting party makes only conclusory or general
objections, or simply reiterates the original arguments, the Court will review the
report and recommendation strictly for clear error.’ ” Id. at *6-*7 (quoting Zaretsky
v. Max-Aids, Inc., 10-cv-3771, 2012 U.S. Dist. LEXIS 64291, at *4 (E.D.N.Y. June
18, 2012), aff’d, 529 F. App’x 97 (2d Cir. 2013)). In this regard, the Second Circuit
has held that “bare statement[s], devoid of any reference to specific findings or
recommendations to which [the plaintiff] objected and why, and unsupported by
legal authority,” are insufficient to warrant de novo review. Mario v. P & C Food
Mkts., 313 F.3d 758 (2d Cir. 2002); see Rothenberger v. N.Y. City Police Dep’t, 06cv-868, 2008 U.S. Dist. LEXIS 46614, at *3 (E.D.N.Y. June 16, 2008) (finding the
plaintiff’s objections to be insufficient where they consisted of “little more than a list
of documents and facts that he believe[d] the court should have considered in
arriving at its findings” and failed to “provide any reasoning – legal or otherwise –
to support his argument that [the] Magistrate Judge [ ] erred either in her
consideration of the evidence or in arriving at any conclusion or recommendation”).
Brief Overview of the Applicable Legal Principles
Congress enacted the Odometer Act “to prohibit tampering with motor
vehicle odometers” and “to provide safeguards to protect purchasers in the sale of
motor vehicles with altered or reset odometers.” 49 U.S.C. § 32701(b)(1)-(2). As this
statement of legislative purpose suggests, there are two primary components of the
Act, namely: (i) the anti-tampering provision established by 49 U.S.C. § 32703; and
(ii) the disclosure provision established by 49 U.S.C. § 32705.
determined that both statutory components are implicated in this case, and issued
recommended rulings as to each.
The anti-tampering provision of the Odometer Act prohibits people from
disconnecting, resetting, or altering an odometer of a motor vehicle, with the intent
to change the mileage registered by the odometer. See 49 U.S.C. § 32703(2).
The disclosure provision of the Act requires “a person transferring ownership
of a motor vehicle [to] give the transferee . . . written disclosure . . . of the
cumulative mileage registered on the odometer.”
Id. § 32705(a)(1)(A)-(B).
applicable interpretive regulations clarify that, for purposes of the statute,
“[t]ransferor means any person who transfers his ownership of a motor vehicle . . .”
49 C.F.R. § 580.3.
The Plaintiffs’ Objections
As to Liability under the Anti-Tampering Provision
In the R&R, Judge Locke found that the complaint did not contain sufficient
facts to establish liability under the Act’s anti-tampering provision. In this regard,
the Plaintiffs did not specify which of the named Defendants they contend may be
liable under this provision. In fact, although the instant motion seeks a default
judgment as against the Defendant Copart only, the complaint fails to allege that
Copart or its employees actually altered or otherwise tampered with the odometer
on the Plaintiffs’ automobile. Instead, the relevant allegations of tampering are
conclusory and directed at the Defendants jointly.
Accordingly, Judge Locke
appropriately found that the Plaintiff’s allegations were not well-pleaded and were
insufficient to sustain their burden on their motion for a default judgment.
The Plaintiffs’ objection to this portion of the R&R is also conclusory. In
particular, they rely on paragraph 2 of the complaint, which alleges that the
“Defendants advertised and represented that the motor vehicle, a 2011 Honda
Civic[,] had 16,000 miles on its odometer.” Allegedly, this was later discovered to be
untrue. However, as Judge Locke correctly noted, this allegation fails to indicate
which party engaged in the improper behavior, and fails to state any facts relating
to odometer tampering. Relying solely on this paragraph, the Plaintiffs contend
that “liability [under the anti-tampering provision] is alleged by implication from
the fact that that vehicle was so advertised and represented.” The Court disagrees.
The Plaintiffs’ Objection in this regard does not address any of the relevant
reasoning set forth by Judge Locke, nor does it identify any legal authority for their
summary conclusion that statutory liability was adequately pled. Thus, the Court
finds that this objection is conclusory and insufficient to warrant de novo review.
Consequently, the Court reviews this portion of the R&R for clear error, and finding
none, now concurs in its reasoning and result.
As to Liability under the Disclosure Provision
Judge Locke also found that the complaint was insufficient to establish
liability under the Odometer Act’s disclosure provision. In particular, the court
noted that the Plaintiffs did not allege that Copart had an ownership interest in the
subject automobile, and therefore, could not be a “transferor” under the relevant
statutory definition. To the extent that only “transferors” can be held liable for
failing to disclose relevant information, namely, the automobile’s true mileage,
Judge Locke appropriately found that liability against Copart had not been
Again, the Plaintiffs object only in conclusory fashion. For example, they
contend primarily that the “complaint and the exhibits clearly demonstrate that the
true mileage, 125,894 was not disclosed.” This is a legal conclusion, which does not
address any of the relevant reasoning set forth in the R&R.
Further, the Plaintiffs state, without any reference to legal authority, that
“[a] transferor is not necessarily an owner of the vehicle.” This bare, unsupported
assertion is contrary to the relevant interpretive regulations, and is therefore
insufficient to warrant de novo review.
In this regard, the Court notes that the Plaintiffs dispute Judge Locke’s
characterization of Copart as an “auto auction.” However, the court’s use of this
term was not relevant to its ultimate conclusion that Copart is not a transferor
under the statute. Even if it were relevant, cursory research reveals that Copart
identifies itself as an auto auction, and therefore the court’s characterization was
See, e.g., Copart Website, Section entitled “About Copart” (selfas
Jan. 20, 2016); see also Copart, Inc. v. Sparta Consulting, Inc., 14-cv-46, 2015 U.S.
Dist. LEXIS 74662, at *4 (E.D. Cal. June 9, 2015) (noting that Copart alleged in a
federal complaint that it sells vehicles “in a virtual auction to a range of commercial
Finally, Judge Locke found that the Act’s disclosure requirement was
satisfied as of October 4, 2013, when written title accurately reflecting the vehicle’s
true mileage was provided to the Plaintiff Bonsu. In this regard, the court cited
49 C.F.R. § 580.5(c), which states, in part, that a transferor satisfies the disclosure
requirement by “disclos[ing] the mileage to the transferee in writing on the title . . .”
The Plaintiffs object to this finding, but again do not advance any pertinent
reasoning or citation to contrary legal authority.
Accordingly, it is clear that the Plaintiffs have not established their
entitlement to a de novo review of the portion of the R&R relating to liability under
the Act’s disclosure provision.
In this regard, none of the Plaintiffs’ Objections
provides “any reasoning – legal or otherwise – to support [their] argument that
Magistrate Judge [Locke] erred either in h[is] consideration of the evidence or in
arriving at any conclusion or recommendation.
Rothenberger, 2008 U.S. Dist.
LEXIS 46614, at *3. Therefore, the Court reviews this portion of the R&R for clear
error, and finding none, now concurs in its reasoning and result.
Based on the foregoing, the Court overrules the Plaintiff’s Objections and
adopts the October 29, 2015 Report and Recommendation of Magistrate Judge
Locke in its entirety. Accordingly, the Plaintiff’s motion for a default judgment is
denied and this action is dismissed without prejudice to refiling at a later date, if it
is appropriate to do so.
The Clerk of the Court is directed to close this case.
It is SO ORDERED
Central Islip, New York
January 22, 2016
/s/ Arthur D. Spatt_______________________
ARTHUR D. SPATT
United States District Judge
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