Shibata et al v. Swingle et al

Filing 104

ORDER adopting 98 Report and Recommendations and granting 58 Motion to Dismiss the counterclaims. Defendants' counterclaims are dismissed without prejudice. Signed by Judge Brenda K. Sannes on 12/3/2018. (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TOMO SHIBATA, et al.,
Plaintiffs,

3:16-CV-1349 (BKS/DEP)

v.
ROGER A. SWINGLE, et al.,
Defendants.
Appearances:
Plaintiffs, pro se:
Tomo Shibata
Yayoi Shibata
Alturas, CA 96101
Attorney for Defendants:
Alan J. Pope, Esq.
Pope, Schrader Law Firm
2 Court Street, 4th Floor
P.O. Box 510
Binghamton, NY 13902
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Presently before the Court is Plaintiffs’ motion to dismiss the counterclaims asserted by
Defendants. (Dkt. No. 58). Defendants consent to the requested dismissal, provided that
dismissal is without prejudice. (Dkt. No. 97). This matter was assigned to United States
Magistrate Judge David E. Peebles who, on October 23, 2018, issued a Report and
Recommendation recommending that Defendants’ counterclaims be dismissed without prejudice.
(Dkt. No. 98). Magistrate Judge Peebles advised the parties that under 28 U.S.C. § 636(b)(1),
they had fourteen days within which to file written objections to the report, and that the failure to

object to the report within fourteen days would preclude appellate review. (Dkt. No. 98, at 2–3).
No objections to the Report-Recommendation have been filed.
As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 98) is ADOPTED in its
entirety; and it is further
ORDERED that Plaintiffs’ motion to dismiss the counterclaims (Dkt. No. 58) is
GRANTED; and it is further
ORDERED that Defendants’ counterclaims are DISMISSED without prejudice; and it is
further
ORDERED that the Clerk is directed to close this action and serve a copy of this Order
upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 3, 2018
Syracuse, New York

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