Bocksel v. DG3 North America, Inc.

Filing 43

ORDER: SO ORDERED that Magistrate Judge Lockes Report is accepted in its entirety, and, for the reasons set forth therein, the branches of defts motion seeking summary judgment dismissing plaintiffs claims in the amended complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted; plaintiffs claims in the amended complaint are dismissed in their entirety with prejudice; and the branch of defts motion seeking summary judgment on its counterclaim against plaintiff pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied. There being no just reason for delay, the Clerk of the Court shall enter judgment dismissing plaintiffs claims against deft in their entirety with prejudice pursuant to Rule 54 (b) of the Fed eral Rules of Civil Procedure. The parties shall appear in Courtroom 1010 at the Central Islip Courthouse, located at 100 Federal Plaza, Central Islip, New York 11722, for a status conference before me on March 16, 2016 at 11:00 a.m.. Ordered by Judge Sandra J. Feuerstein on 3/1/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT K. BOCKSEL,

FILED 
CLERK 

3/1/2016 2:20 pm

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

Plaintiff,
ORDER
14-CV-6015 (SJF)(SIL)

-againstDG3 NORTH AMERICA, INC.,
Defendant.
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FEUERSTEIN, District Judge:

Pending before the Court is a Report and Recommendation of the Honorable Steven I.
Locke, United States Magistrate Judge, dated February 12, 2016 (“the Report”), (1)
recommending that the motion of defendant DG3 North America, Inc. (“defendant”) seeking
summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted in
part and denied in part; and (2) advising the parties, inter alia, (a) that “[a]ny objections to th[e]
Report . . . must be filed with the Clerk of the Court within fourteen (14) days of receipt of th[e]
[R]eport,” (Report at 29), and (b) that a “[f]ailure to file objections within the specified time
waives the right to appeal. . . ,” (id.) (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72; Ferrer
v. Woliver, No. 05-3696, 2008 WL 4951035, at * 2 (2d Cir. Nov. 20, 2008); Beverly v. Walker,
118 F.3d 900, 902 (2d Cir. 1997); and Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996)).
A copy of the Report was served upon the attorneys of record for the parties via ECF on February
12, 2016. (Doc. No. 42). No party has filed any objection to the Report, nor sought an extension
of time to do so. For the reasons set forth herein, Magistrate Judge Locke’s Report is accepted in
its entirety and, for the reasons set forth in the Report, defendant’s motion for summary judgment
is granted in part and denied in part.
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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 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). Specifically, where, as here, the parties
“received clear notice of the consequences of the failure to object” to a report and
recommendation, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (quotations and citation
omitted), their “failure to object timely to [that] report waives any further judicial review of the
report.” Id.; see also Caidor v. Onondago County, 517 F.3d 601, 604 (2d Cir. 2008); Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993).
“Although this rule applies equally to counseled and pro se litigants, it is ‘a
nonjurisdictional waiver provision whose violation [the Court] may excuse 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)
(quoting Roldan, 984 F.2d at 89); 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

Although the Report provided the parties with the requisite “express warning” of the
consequences of a failure to timely file objections thereto, Caidor, 517 F.3d at 603, neither party
filed any objections to the Report, nor sought an extension of time to do so. Accordingly, the
parties have “waive[d] any further judicial review of the findings contained in the [R]eport.”
Spence, 219 F.3d at 174.
As the Report is not plainly erroneous, the Court will not exercise its discretion to excuse
the parties’ 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, the
branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the
amended complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted;
plaintiff’s claims in the amended complaint are dismissed in their entirety with prejudice; and the
branch of defendant’s motion seeking summary judgment on its counterclaim against plaintiff
pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied.

III.

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

entirety, and, for the reasons set forth therein, the branches of defendant’s motion seeking
summary judgment dismissing plaintiff’s claims in the amended complaint pursuant to Rule 56
of the Federal Rules of Civil Procedure is granted; plaintiff’s claims in the amended complaint
are dismissed in their entirety with prejudice; and the branch of defendant’s motion seeking
summary judgment on its counterclaim against plaintiff pursuant to Rule 56 of the Federal Rules

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of Civil Procedure is denied. There being no just reason for delay, the Clerk of the Court shall
enter judgment dismissing plaintiff’s claims against defendant in their entirety with prejudice
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The parties shall appear in
Courtroom 1010 at the Central Islip Courthouse, located at 100 Federal Plaza, Central Islip, New
York 11722, for a status conference before me on March 16, 2016 at 11:00 a.m.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: March 1, 2016
Central Islip, New York

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