FC Online Marketing, Inc. v. Burke's Martial Arts, LLC et al

Filing 109

ORDER ADOPTING REPORT AND RECOMMENDATIONS: For the reasons set forth herein, Magistrate Judge Locke's Report is accepted in its entirety and, for the reasons set for therein, defendants' motion for leave to file an amended answer and third party complaint is granted; defendants amended answer and third party complaint is accepted for filing nunc pro tunc; and FCOM's motion to strike the amended answer and third party complaint is denied. SO Ordered by Judge Sandra J. Feuerstein on 10/25/2016. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FC ONLINE MARKETING, INC.,

FILED 
CLERK 

10/25/2016 2:44 pm

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

Plaintiff,
ORDER
14-CV-3685 (SJF)(SIL)

-againstBURKE’S MARTIAL ARTS, LLC and
JOHN JACOB BURKE,
Defendants.
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BURKE’S MARTIAL ARTS, LLC,
Third-Party Plaintiff,
-againstFC ONLINE MARKETING, INC.,
Counterdefendant,
-andMICHAEL PARRELLA,
Third-Party Defendant.
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FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff FC Online Marketing, Inc.
(“FCOM”) to the Report and Recommendation of the Honorable Steven I. Locke, United States
Magistrate Judge, dated September 30, 2016 (“the Report”), recommending (1) that the motion
of defendants Burke’s Martial Arts, LLC and John Jacob Burke (collectively, “defendants”)
seeking leave to file an amended answer and third party complaint be granted; and (2) that
FCOM’s motion to strike the amended answer and third party complaint be denied. For the

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reasons stated herein, Magistrate Judge Locke’s Report is accepted in its entirety.

I.

DISCUSSION
A.

Standard of Review

Generally, motions for leave to amend are considered to be nondispositive and subject to
review under the “clearly erroneous or contrary to law” standard of Rule 72(a) of the Federal
Rules of Civil Procedure, see Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) (“[a]s a
matter of case management, a district judge may refer nondispositive motions, such as a motion
to amend the complaint, to a magistrate judge for decision without the parties’ consent”); Rienzi
& Sons, Inc. v. Puglisi, 638 F. App’x 87, 92 (2d Cir. Feb. 10, 2016) (summary order) (declining
to consider the merits of the plaintiff’s claim that the magistrate judge abused her discretion in
denying its motion to amend its pleading because it failed to timely object to the magistrate
judge’s order pursuant to Fed. R. Civ. P. 72(a)), unless the magistrate judge’s decision effectively
dismisses or precludes a claim, thereby rendering the motion to amend dispositive. See, e.g.
Jean-Laurent v. Wilkerson, 461 F. App’x 18, 25 (2d Cir. Feb. 8, 2012) (summary order). As
Magistrate Judge Locke determined, inter alia, that defendants’ motion to amend should be
granted, thereby allowing them to assert additional defenses, counterclaims and third party
claims, the motion is nondispositive and the Report is subject to review under Rule 72(a)’s
“clearly erroneous or contrary to law” standard.
28 U.S.C. § 636(b)(1)(A) permits a district judge to “designate a magistrate judge to hear
and determine any [nondispositive] pretrial matter,” not otherwise expressly excluded therein.
Any party may serve and file objections to a magistrate judge’s order on a nondispositive pretrial
matter within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(a).

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Upon consideration of any timely interposed objections and “reconsider[ation]” of the magistrate
judge’s order, 28 U.S.C. § 636(b)(1)(A), the district judge must modify or set aside any part of
the order that “is clearly erroneous or contrary to law.” Id.; see also Fed. R. Civ. P. 72(a). A
party may not assign as error any defect in a magistrate judge’s order to which he has not timely
objected. Fed. R. Civ. P. 72(a).

B.

FCOM’s Objections

FCOM has not demonstrated that any part of Magistrate Judge Locke’s Report is clearly
erroneous or contrary to law. Contrary to FCOM’s contention, it was not denied due process, as
it is clear from both the docket entry and the text of defendants’ letter motion filed May 3, 2016
that defendants were seeking leave to file an amended answer and third party complaint. (Docket
Entry [“DE”] 92).
Also contrary to FCOM’s contention, Magistrate Judge Locke did not “improperly
conflate[] the Rule 16(b)/Rule 15 legal analysis, . . . or focus on only one Foman [sic] factor,”
(Obj. at 4), in granting defendants’ motion for leave to amend. Rather, Magistrate Judge
properly considered and determined, inter alia, that “[t]here was no undue delay,” (Report at 14,
16); that “there is no indication of an improper motive,” or bad faith, on behalf of defendants, (id.
at 14, 16); that FCOM “has provided no argument whatsoever as to why the additional
affirmative defenses and counterclaims in the Second Amended Answer and Third Party
Complaint are futile[,]” (id. at 17); and that FCOM “does not identify any specific prejudice due
to the timing of [defendants’] motion.” (Id. at 18).
FCOM’s remaining objections are likewise without merit and fail to demonstrate any
basis upon which to modify or set aside Magistrate Judge Locke’s Report, i.e., that any finding or

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conclusion in the Report is clearly erroneous or contrary to law. Accordingly, upon consideration
of FCOM’s objections and reconsideration of the Report, the Report is accepted in its entirety
and, for the reasons set forth therein, defendants’ motion for leave to file an amended answer and
third party complaint is granted; defendants’ amended answer and third party complaint is
accepted for filing nunc pro tunc; and FCOM’s motion to strike the amended answer and third
party complaint is denied.

II.

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

entirety and, for the reasons set forth therein, defendants’ motion for leave to file an amended
answer and third party complaint is granted; defendants’ amended answer and third party
complaint is accepted for filing nunc pro tunc; and FCOM’s motion to strike the amended
answer and third party complaint is denied.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: October 25, 2016
Central Islip, New York

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