Imperium Insurance Company et al. v. American Western Home Insurance Company

Filing 25

ORDER - For the reasons set forth herein, Magistrate Judge Locke's Report is accepted in its entirety and, for the reasons set forth therein, plaintiff's motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and judgment is entered declaring that New Jersey law applies to the interpretation of the insurance policy at issue in this case. The status conference scheduled to be held before me on 4/25/2017 is advanced to 2/15/2017 at 11:15AM. SO Ordered by Judge Sandra J. Feuerstein on 1/24/2017. (Tirado, Chelsea)

FILED 
CLERK 

3:07 pm, Jan 24, 2017

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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IMPERIUM INSURANCE COMPANY,
formerly known as Delos Insurance Company,
formerly known as Sirius America Insurance
Company,
Plaintiff,

ORDER
15-CV-5471 (SJF)(SIL)

-againstAMERICAN WESTERN HOME
INSURANCE COMPANY, (pertaining to an
underlying action entitled Archstone v. Tocci
Building Corp. of N.J., Inc., et al.)
Defendant.
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FEUERSTEIN, District Judge:

Pending before the Court is the Report and Recommendation of the Honorable Steven I.
Locke, United States Magistrate Judge, dated November 18, 2016 (“the Report”), (1)
recommending (a) that the motion of plaintiff Imperium Insurance Company (“plaintiff”) seeking
partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure declaring
that the insurance policy at issue is governed by New Jersey law be granted, and (b) that New
Jersey law be applied to the interpretation of the insurance policy; 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 14), and (b) that a “[f]ailure to file
objections within the specified time waives the right to appeal the District Court’s order.” (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
counsel for both parties via ECF on November 18, 2016, (See Docket Entry [“DE”] 24), but

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neither party has filed any objections to the Report, nor sought an extension of time to do so. For
the reasons stated herein, Magistrate Judge Locke’s Report is accepted in its entirety.

I.

DISCUSSION
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter 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).
Where a party “received clear notice of the consequences of the failure to object” to a report and
recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted); accord Small v. Secretary of Health and Human Svcs., 892 F.2d
15, 16 (2d Cir. 1989), his “failure to object timely to [that] report waives any further judicial
review of the report.” Frank, 968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d
Cir. 2015); Caidor v. Onondago County, 517 F.3d 601, 604 (2d Cir. 2008).
Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a
violation thereof “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) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993)); 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);
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accord King, 419 F. App’x at 27.

B

Review of Report

Since neither party has filed any objections to Magistrate Judge Locke’s Report, nor sought
an extension of time to do so, they have “waive[d] any further judicial review of the findings
contained in the [R]eport.” Spence, 219 F.3d at 174. Moreover, 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, plaintiff’s motion for partial summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and judgment is entered
declaring that New Jersey law applies to the interpretation of the insurance policy at issue in this
case.

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, plaintiff’s motion for partial summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure is granted and judgment is entered declaring that
New Jersey law applies to the interpretation of the insurance policy at issue in this case. The status
conference scheduled to be held before me on April 25, 2017 is advanced to February 15, 2017 at
11:15 a.m. in Courtroom 1010 at the Central Islip Courthouse, located at 100 Federal Plaza,
Central Islip, New York 11722.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: January 24, 2017
Central Islip, New York
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