Hassanein et al v. The Standard Fire Insurance Company

Filing 90

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth herein (PLEASE SEE ORDER FOR FURTHER DETAILS), Magistrate Judge Lindsays Report is accepted in its entirety and, for the reasons set forth therein, so much of defendants motion as s eeks to dismiss plaintiffs complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is granted and this case is dismissed in its entirety with prejudice for failure to prosecute. The Clerk of the Court shall enter judgment in favor of defendant, close this case and, pursuant to Rule 77(d)(1) of the Federal Rules of Civil Procedure, serve notice of entry of this order upon plaintiffs by mailing a copy of the order to them at both their address of record and their apparently new address, i.e., 2 Mannetto Court, Huntington, New York 11743. So Ordered by Judge Sandra J. Feuerstein on 7/19/2016. (c/m to pro se at both addresses) (Ortiz, Grisel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SALLY HASSANEIN and WAIEL HUSSEIN,

FILED 
CLERK 

7/19/2016 10:57 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
ORDER
14-CV-2470 (SJF)(ARL)

-againstTHE STANDARD FIRE INSURANCE COMPANY,
Defendant.
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FEUERSTEIN, District Judge:

Pending before the Court is the Report and Recommendation of the Honorable Arlene R.
Lindsay, United States Magistrate Judge, dated June 28, 2016 (“the Report”) (a) recommending
that so much of the unopposed motion of defendant The Standard Fire Insurance Company
(“defendant”) as seeks to dismiss the complaint of plaintiffs Sally Hassanein and Waiel Hussein
(“plaintiffs”) pursuant to Rule 41(b) of the Federal Rules of Civil Procedure be granted and that
this case be dismissed with prejudice for failure to prosecute; and (b) advising the parties, inter
alia, (i) that they “shall have fourteen (14) days from service of th[e] Report . . . to file written
objections[,]” (Report at 4), and (ii) that a “[f]ailure to file objections within th[at] period waives
the right to appeal the District Court’s Order[,]” (id.) (emphasis omitted) (citing 28 U.S.C. §
636(b)(1); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir. 2010); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); and
Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996)). Defendant served a copy of the Report
upon plaintiffs via first class mail to both their address of record and their apparently new address
in Huntington, New York on June 29, 2016. (See Docket Entry [“DE”] 87). Nonetheless,
plaintiffs have not filed any objections to the Report, nor sought an extension of time to do so. For
the reasons stated herein, Magistrate Judge Lindsay’s Report is accepted in its entirety.
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I.

DISCUSSION
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). 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. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).
Where a party “received clear notice of the consequences of the failure to object” to a report and
recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted); accord Small v. Secretary of Health and Human Svcs., 892 F.2d
15, 16 (2d Cir. 1989), his “failure to object timely to [that] report waives any further judicial
review of the report.” Frank, 968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d
Cir. 2015); Caidor v. Onondago County, 517 F.3d 601, 604 (2d Cir. 2008).
Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a
violation thereof “in the interests of justice.” King v. City of New York, Dep’t of Corr., 419 F.
App’x 25, 27 (2d Cir. Apr. 4, 2011) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is
exercised based on, among other factors, whether the defaulted argument has substantial merit or,
put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting
party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000);
accord King, 419 F. App’x at 27.

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B

Review of Report

Since plaintiffs have not filed any objections to Magistrate Judge Lindsay’s Report, nor
sought an extension of time to do so, they have “waive[d] any further judicial review of the
findings contained in the [R]eport.” Spence, 219 F.3d at 174. Moreover, as the Report is not
plainly erroneous, the Court will not exercise its discretion to excuse plaintiffs’ default in filing
timely objections to the Report in the interests of justice. Accordingly, the Report is accepted in its
entirety and, for the reasons set forth therein, so much of defendant’s motion as seeks to dismiss
plaintiffs’ complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is granted and
this case is dismissed in its entirety with prejudice for failure to prosecute.

II.

CONCLUSION
For the reasons set forth herein, Magistrate Judge Lindsay’s Report is accepted in its

entirety and, for the reasons set forth therein, so much of defendant’s motion as seeks to dismiss
plaintiffs’ complaint pursuant to Rule 41(b) of the Federal Rules of Civil Procedure is granted and
this case is dismissed in its entirety with prejudice for failure to prosecute. The Clerk of the Court
shall enter judgment in favor of defendant, close this case and, pursuant to Rule 77(d)(1) of the
Federal Rules of Civil Procedure, serve notice of entry of this order upon plaintiffs by mailing a
copy of the order to them at both their address of record and their apparently new address, i.e., 2
Mannetto Court, Huntington, New York 11743.

SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: July 19, 2016
Central Islip, New York
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