Eliya, Inc. v. Kohl's Corporation et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS : IT IS HEREBY ORDERED that defendants' motion to dismiss the Lanham Act trade dress infringement claim is granted; this Court will decline supplemental jurisdiction over the state law claims; and plaint iff is granted leave to amend the complaint. Plaintiff must file its second amended complaint within thirty (30) days of this Order.Plaintiff is warned that if it fails to file an amended complaint within thirty days, the Court may dismiss this case with prejudice, without further notice, for failure to prosecute, pursuant to Rule 4l(b) of the Federal Rules of Civil Procedure. Ordered by Judge Joseph F. Bianco on 3/9/2016. (Bollbach, Jean)

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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ELIYA, INC.,

:

*

MAR 09 2016

*

LONG ISLAND OFFICE

Plaintiff,
ORDER
15-CV-2123 (JFB)(GRB)

-againstKOHL'S CORPORATION and DOES 1-10,
Defendants.

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JOSEPH F. BIANCO, District Judge:

Before the Court is a Report and Reconunendation ("R&R'') from Magistrate Judge Brown,
advising the Court to grant the defendants' motion to dismiss and to grant plaintiff leave to replead.
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 February 22, 2016, at 14.) 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&R in its entirety, dismisses plaintiff's
Lanham Act trade dress claim, declines to exercise jurisdiction over plaintiff's state Jaw claims,
and grants leave to replead.
Where there are no objections, the Court may adopt the report and reconunendation without
de novo review. See Thomas v. Arn, 474 U.S. 140, !50 (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 reconunendation operates as a
waiver of further judicial review of the magistrate's decision."); cf 28 U.S.C. § 636(b)(l)(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, I 07 (2d Cir. 2003) ("(B]ecause the waiver
rule is non jurisdictional, we 'may excuse the default in the interests ofjustice.'" (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.
Having conducted a review of the full record and the applicable law, and having reviewed the
R&R de novo, the Court adopts the findings and recommendations contained in the well-reasoned
and thorough R&R in their entirety. Accordingly, IT IS HEREBY ORDERED that defendants'
motion to dismiss the Lanham Act trade dress infringement claim is granted; this Court will decline
supplemental jurisdiction over the state law claims; and plaintiff is granted leave to amend the
complaint.

Plaintiff must file its second amended complaint within thirty (30) days of this Order.
Plaintiff is warned that if it fails to file an amended complaint within thirty days, the Court may
dismiss this case with prejudice, without further notice, for failure to prosecute, pursuant to Rule
4l(b) of the Federal Rules of Civil Procedure.

SO ORDERED
II

.BIANCO
STATES DISTRICT JUDGE
Dated: March 9, 2016
Central Islip, New York