Neogenix Oncology, Inc. v. Gordon et al

Filing 113

ORDER ADOPTING REPORT AND RECOMMENDATION in its entirety. IT IS HEREBY ORDERED that Plaintiff's Rule 12(f) motion to strike paragraphs 14 and 15 as well as Exhibit B of the original Answer filed by Defendant Peter Gordon is granted. Also 69 motion to strike is granted Ordered by Judge Joseph F. Bianco on 9/29/2015. (Bollbach, Jean) Modified on 9/30/2015 (Bollbach, Jean).

FILE 0
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.O.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SEP 29 2015

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LONG ISLAND OFFICE

NEOGENIX ONCOLOGY, INC.,

Plaintiff,
ORDER
14-CV -4427 (JFB)(AKT)

-againstPETER GORDON; MINTZ LEVIN COHN FERRIS
GLOVSKY AND POPEO P.C.; NIXON PEABODY LLP;
DANIEL J. SCHER; HARRY GURWITCH; AND
MAlE LEWIS, AS REPRESENTATIVE OF THE ESTATE OF :
BRIAN LEWIS,

Defendants.

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JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Recommendation ("R&R") from Magistrate Judge
Tomlinson, advising the Court to strike portions of Defendant Peter Gordon's Answer. The R&R
instructed that any objections to the R&R be submitted within fourteen (14) days of service of the
R&R. (See R&R, dated August 28,2015, at 21 .) The date for filing any objections has since expired,
and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the Court
adopts the thorough and well-reasoned R&Rin its entirety and strikes paragraphs 14 and 15 as well
as Exhibit B of the original Answer filed by Defendant Peter Gordon.
Where there are no objections, 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)(1)(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 plaintiff has 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 and
HEREBY ADOPTS the well-reasoned and thorough R&R in its entirety.
IT IS HEREBY ORDERED that Plaintiff's Rule 12(f) motion to strike paragraphs 14 and
15 as well as Exhibit B of the original Answer filed by Defendant Peter Gordon is granted.

SO ORDERl"n

rr:

EP F.BIANCO
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Dated: September 29, 2015
Central Islip, New York

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STATES DISTRICT JUDGE