Trustees of the Northeast Carpenters Health, Pension, Annuity, Apprenticeship, and Labor Management Cooperation Funds v. Energy Smart Insulation, Inc. et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth herein, Magistrate Judge Lindsay's Report is accepted in its entirety and, for the reasons set forth therein, defendants' motion to dismiss plaintiffs' claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is denied. SO Ordered by Judge Sandra J. Feuerstein on 2/9/2018. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE NORTHEAST CARPENTERS
HEALTH, PENSION, ANNUITY, APPRENTICESHIP,
AND LABOR MANAGEMENT COOPERATION FUNDS,

FILED 
CLERK 

4:00 pm, Feb 09, 2018

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

Plaintiffs,
ORDER
16-CV-6225 (SJF)(ARL)

-againstENERGY SMART INSULATION, INC. and A TO Z
COATINGS, INC.,
Defendants.
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FEUERSTEIN, District Judge:

Pending before the Court is the Report and Recommendation of the Honorable Arlene
R. Lindsay, United States Magistrate Judge, dated January 23, 2018 (“the Report”), (1)
recommending that the motion of plaintiffs Trustees of the Northeast Carpenters Health,
Pension, Annuity, Apprenticeship, and Labor Management Cooperation Funds (“plaintiffs”)
seeking to dismiss plaintiffs’ claims against them in their entirety pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure be denied; and (2) advising, 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 service[,]” (Report at 11), (b) that “[a]ny requests for an extension of time for filing
objections must be directed to Judge Feuerstein prior to the expiration of the fourteen (14) day
period for filing objections[,]” (id.), and (c) that a “[f]ailure to file objections within this period
waives the right to appeal the District Court’s Order.” (Id.) (citing 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72; 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 all
parties via ECF on January 23, 2018. (See Docket Entry [“DE”] 23). No party has filed any
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timely objections to the Report, nor sought an extension of time to do so. For the reasons set
forth below, Magistrate Judge Lindsay’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

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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.

B.

Review of Report

Since no party has filed any timely objections to Magistrate Judge Lindsay’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, defendants’ motion to dismiss
plaintiffs’ claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
is denied.

II.

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

entirety and, for the reasons set forth therein, defendants’ motion to dismiss plaintiffs’ claims
against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is denied.

SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: February 9, 2018
Central Islip, New York
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