Nogueira v. Travelers Casualty Company
Filing
68
MEMORANDUM AND ORDER; By Report and Recommendation dated February 9, 2016, Magistrate Judge Brown recommended that both of the within actions (Nogueira v. Travelers Casualty Co., No. 14-CV-3369 and Sperber v. Am. Sec. Ins. Co., No. 14-CV-3410) be dis missed pursuant to Federal Rule of Civil Procedure 41(b), for failure to prosecute. For the reasons stated herein, the Report and Recommendation is hereby adopted and both of the above-captioned cases are dismissed, with prejudice, for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). (Ordered by Judge Leonard D. Wexler on 3/18/2016.) (Fagan, Linda)
FILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IN CLERK'S OFFlGE
U S DISTRICT COURTED-NY
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IN RE HURRICANE SANDY CASES
*
LONG ISLAND OFFICE
*
MAR 18 Z016
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THIS DOCUMENT APPLIES TO:
MEMORANDUM AND ORDER
Nogueira v. Travelers Casualty Co.,
No. 14-CV-3369
14-MC-41
(Wexler, J.)
Sperber v. Am. Sec. Ins. Co.,
No. 14-CV-3410
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WE)(LER, District Judge:
The above-captioned insurance disputes, both arising out of Hurricane Sandy, were
commenced on May 29, 2014, alleging claims for breach of contract. In both cases, Defendants
were not properly served within 120 days of the filing of the Complaint, as required by Federal
Rule of Civil Procedure 4(m). 1
By Report and Recommendation dated February 9, 2016, Magistrate Judge Brown
recommended that both ofthe within actions be dismissed pursuant to Federal Rule of Civil
Procedure 41(b), for failure to prosecute. 2 Magistrate Brown's Report and Recommendation
advised Plaintiffs that any written objections were to be filed within fourteen days of service of
1
The Federal Rules of Civil Procedure were amended subsequent to the commencement
of the above-captioned actions to now require service within ninety days of the filing of the
complaint. See Fed. R. Civ. P. 4(m) (as amended, effective Dec. 1, 2015).
2
In Sperber, Defendant filed a motion to dismiss for failure to prosecute, despite never
being properly served with the Complaint, which Magistrate Brown recommends granting.
Magistrate Brown's recommendation that the complaint in Nogueira be dismissed is issued sua
sponte.
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the Report and Recommendation. (R&R at 6.) The Report and Recommendation was dated and
docketed on the Court's electronic filing system on February 9, 2016. To date, no objections
have been received.
The Report and Recommendation states that it was mailed to Plaintiffs' last known
addresses. The Report and Recommendation sent to PlaintiffNogueira was returned as
undeliverable and unable to be forwarded on February 29, 2016. The Report and
Recommendation sent to Plaintiff Sperber was not returned. Notwithstanding that Plaintiff
Nogueira did not receive the Report and Recommendation, as Magistrate Brown notes, it is the
plaintiffs obligation to update the Court as to any change of address. (R&R at 5 (citing Desouza
v. Fischer, No. 12-CV-0821, 2015 WL 4104794, at *5 (E.D.N.Y. July 8, 2015) (collecting
cases)). PlaintiffNogueira has failed to fulfill this obligation.
Accordingly, the time to file objections to the recommendation of Magistrate Brown
having passed without receipt of any objections thereto, the Report and Recommendation is
hereby adopted and both of the above-captioned cases are dismissed, with prejudice, for failure to
prosecute, pursuant to Federal Rule of Civil Procedure 41(b).
SO ORDERED:
Dated: Central Islip, New York
March 18, 2016
- - - - -Is/- - - - - - - LEONARD D. WEXLER
United States District Judge
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