Deskcenter USA, Inc. v. Deskcenter Solutions, AG

Filing 26

ORDER: SO ORDERED that the Report is accepted in its entirety and, for the reasons set forth in the Report, defts motion seeking dismissal of this action based upon a forum selection clause is granted; this action is dismissed in its entirety without prejudice to renewal in the German court; and defts motion for attorneys fees is denied. The Clerk of the Court shall close this case. Ordered by Judge Sandra J. Feuerstein on 3/3/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
DESKCENTER USA, INC.,

FILED 
CLERK 

3/3/2016 11:40 am

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

Plaintiff,
ORDER
14-CV-5295 (SJF)(GRB)

-againstDESKCENTER SOLUTIONS, AG,
Defendant.
--------------------------------------------------------------X
FEUERSTEIN, District Judge:

Pending before the Court are objections by plaintiff Deskcenter USA, Inc. (“plaintiff”) to
so much of a Report and Recommendation of the Honorable Gary R. Brown, United States
Magistrate Judge, dated February 11, 2016 (“the Report”), as recommends that the motion of
defendant Deskcenter Solutions, AG (“defendant”) seeking dismissal of this action based upon a
forum selection clause be granted. For the reasons stated herein, the Report is accepted in its
entirety.

I.

DISCUSSION
A.

Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct
proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P.
72(b); see Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002).
Any portion of a report and recommendation on dispositive matters to which a specific, timely
objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
However, the court is not required to review the factual findings or legal conclusions of the
1

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); Wagner & Wagner, LLP v. Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives
[judicial] review of a decision in a magistrate judge’s report and recommendation if the party
fails to file timely objections designating the particular issue.”); Cephas v. Nash, 328 F.3d 98,
107 (2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or omission in a
magistrate judge’s report waives further judicial review of the point.”)
Objections to a magistrate judge’s report and recommendation “must be specific and
clearly aimed at particular findings in the magistrate judge’s proposal.” McDonaugh v. Astrue,
672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009) (quotations and citation omitted); see also Phillips v.
Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) (holding that objections must be
specific and “address only those portions of the proposed findings to which the party objects.”
(quotations and citation omitted)). General objections, or “objections that are merely perfunctory
responses argued in an attempt to engage the district court in a rehashing of the same arguments
set forth in the original papers will not suffice to invoke de novo review * * * [because] [s]uch
objections would reduce the magistrate’s work to something akin to a meaningless dress
rehearsal.” Owusu v. New York State Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009)
(alterations, quotations and citations omitted); see also Phillips, 955 F. Supp. 2d at 211 (accord);
Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (“In a case where a party makes
only conclusory or general objections, or simply reiterates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” (quotations and citation omitted)).
To accept the report and recommendation of a magistrate judge to which such general or
2

perfunctory objections are made, or to which no specific, timely objection has been made, the
district judge need only be satisfied that there is no clear error apparent on the face of the record.
See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162,
174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed
to determine whether the magistrate judge committed “plain error.”); Sibley v. Choice Hotels
Int’l, Inc., 304 F.R.D. 125, 129 (E.D.N.Y. 2015) (“[I]f a party makes only conclusory or general
objections, or simply reiterates his original arguments, the Court reviews the Report and
Recommendation only for clear error.” (quotations and citation omitted)); accord VOX
Amplification Ltd. v. Meussdorffer, 50 F. Supp. 3d 355, 370 (E.D.N.Y. 2014).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Mgmt., Inc., 295 F.R.D. 1, 2
(E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care Sys., Inc. v. MultiPlan, Inc., 953
F. Supp. 2d 419, 424 (E.D.N.Y. 2013).

B.

Objections

Plaintiff does not assign any specific error to any of Magistrate Brown’s findings or
conclusions in the Report. Rather, plaintiff merely reiterates its original arguments considered
and rejected by Magistrate Judge Brown, and “respectfully disagrees” with Magistrate Judge
Brown’s finding that it “failed to meet its burden that the discovery cannot be obtained in
Germany without undue hardship.” (Plf. Obj. at 3). As plaintiff fails to make any specific,
timely objection to the Report, and defendant has not objected to so much of the Report as
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recommends that its motion for attorneys’ fees be denied, I review the Report in its entirety only
for clear error. There being no clear error on the face of the Report, the Report is accepted in its
entirety.1 For the reasons set forth in the Report, defendant’s motion seeking dismissal of this
action based upon a forum selection clause is granted; this action is dismissed in its entirety
without prejudice to renewal in the German court; and defendant’s motion for attorneys’ fees is
denied.

II.

CONCLUSION
For the reasons set forth herein, the Report is accepted in its entirety and, for the reasons

set forth in the Report, defendant’s motion seeking dismissal of this action based upon a forum
selection clause is granted; this action is dismissed in its entirety without prejudice to renewal in
the German court; and defendant’s motion for attorneys’ fees is denied. The Clerk of the Court
shall close this case.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: March 3, 2016
Central Islip, New York
1

In any event, even upon de novo review, plaintiff’s arguments fail as, inter alia,
plaintiff has not met its burden of “making a sufficiently strong showing that enforcement [of the
forum selection clause] would be unreasonable or unjust,” Starkey v. G. Adventures, Inc., 796
F.3d 193, 196 (2d Cir. 2015) (quoting Martinez v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir.
2014)), i.e., that litigation in the German court “will be so difficult and inconvenient that [it]
effectively will be deprived of [its] day in court.” Martinez, 740 F.3d at 228 (quoting Phillips v.
Audio Active Ltd., 494 F.3d 378, 392 (2d Cir. 2007)). Accordingly, Magistrate Judge Brown
correctly found, inter alia, that “plaintiff has not overcome the presumption in favor of
enforcement of the forum selection clause.” (Report at 11).
4