Levy v. Law Offices Of J. Henry Nierman et al

Filing 158

OPINION & ORDER for 154 Report and Recommendation. For these reasons, the Court adopts Judge McCarthy's R&R in its entirety. The Court kindly directs the Clerk of Court to enter judgment as follows: Plaintiff is awarded $8,000.00 in actual damages, $500.00 in statutory damages, $103,214.37 in attorney's fees, and $5,924.87 in costs, for a total award of $117,639.24. The Clerk of Court is also respectfully directed to close this case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/24/2024) (mml) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SHAUL LEVY,

09/24/2024
Plaintiff,
No. 17-cv-4022 (NSR)

-againstLAW OFFICES OF J. HENRY NIERMAN, J.
HENRY NIERMAN, AND RECOVERY OF
JUDGMENT, LLC,

OPINION & ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge:
Shaul Levy (“Plaintiff”) brings this action against the Law Offices of J. Henry Nierman
(“LOHN”), J. Henry Nierman, and Recovery of Judgment LLC (“ROJ”) (collectively,
“Defendants”), alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq. (“FDCPA”). (See ECF No. 1.) On February 19, 2024, Defendants filed a motion to dismiss
Plaintiff’s FDCPA claim for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1).
(ECF No. 140.) On May 20, 2024, the Court denied Defendants’ motion to dismiss and referred
the matter to Magistrate Judge Judith C. McCarthy for an inquest on emotional damages and
attorney’s fees and costs. (See ECF No. 145.)
Now pending before the Court is a Report and Recommendation (“R&R”) issued by Judge
McCarthy, pursuant to 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b),
recommending that Plaintiff be awarded $8,000.00 in actual damages, $500.00 in statutory
damages, $103,214.37 in attorney’s fees, and $5,924.87 in costs, for a total award of $117,639.24.
(ECF No. 154.) Defendants made no objections to the R&R. For the following reasons, the Court

adopts the R&R, and awards Plaintiff $8,000.00 in actual damages, $500.00 in statutory damages,
$103,214.37 in attorney’s fees, and $5,924.87 in costs, for a total award of $117,639.24.
BACKGROUND
The Court presumes familiarity with the factual and procedural background of this case.
Plaintiff commenced the instant action on May 30, 2017. (ECF No. 1.) The parties cross-moved
for summary judgment in 2021, (ECF Nos. 84, 85, 86, 87, 91, 92), and on December 8, 2022, the
Court entered judgment for Plaintiff on his FDCPA § 1692e(5) and (13) claims, (ECF No. 93 at 34, 23-24). The Court also awarded Plaintiff $500.00 in statutory damages, pursuant to 15 U.S.C. §
1692k(a)(2)(A), and referred the case to Judge McCarthy for an inquest on actual damages and
attorney’s costs and fees. (Id. at 24.) Judge McCarthy held an inquest on June 12, 2023. (See June
12, 2023 Minute Entry.) At the end of the hearing, Defendants sought leave to file a motion to
dismiss the case on standing grounds. (ECF No. 109-1 at 9.) The Court granted leave and
Defendants filed their motion to dismiss on February 19, 2024. (ECF No. 140.) On May 20, 2024,
the Court denied Defendants’ motion and re-referred the case “for an inquest on emotional
damages, Plaintiff’s $3,000.00 legal fee, and the issue of attorney’s costs and fees.” (ECF No. 145
at 8.)
STANDARDS OF REVIEW
In reviewing a magistrate judge's report and recommendation, a district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Parties may raise specific, written objections to the report and
recommendation within 14 days of being served with a copy of the report. Id.; see also Fed. R.
Civ. P. 72(b)(2). When a party submits a timely objection, a district court reviews de novo the
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parts of the report and recommendation to which the party objected. 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3).
When neither party submits an objection to a report and recommendation, or any portion
thereof, a district court reviews the report and recommendation for clear error. Schiff v. Yayi Int'l
Inc., No. 15-CV-359 (VSB), 2020 WL 3893345, at *2 (S.D.N.Y. July 9, 2020); Santana v. Comm'r
of Soc. Sec., No. 17-CV-2648 (VSB) (BCM), 2019 WL 2326214, at *1 (S.D.N.Y. May 30, 2019);
Marte v. Berryhill, No. 17-CV-3567 (VSB) (JLC), 2018 WL 5255170, at *1 (S.D.N.Y. Oct. 22,
2018); Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008). “To accept the report and
recommendation of a magistrate, to which no timely objection has been made, a district court need
only satisfy itself that there is no clear error on the face of the record.” Wilds v. United Parcel
Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985) (internal quotation marks omitted); accord Feehan v. Feehan, No. 09-CV7016(DAB), 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011); see also Fed. R. Civ. P. Rule 72
advisory committee note (1983 Addition, Subdivision (b)) (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”).
DISCUSSION
Here, the R&R was issued on July 3, 2024. After requesting an extension, Defendants had
until July 31, 2024 to file objections, but they filed none. (See ECF No. 156.) Since Defendants
failed to file any objections, the Court has reviewed Judge McCarthy’s R&R for clear error and
found no clear error. As expressed more fully in the R&R, after considering the evidence submitted
by both parties, evidence supported Judge McCarthy’s decision that Plaintiff be awarded $8,000.00
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in actual damages, $500.00 in statutory damages, $103,214.37 in attorney’s fees, and $5,924.87 in
costs, for a total award of $117,639.24. (ECF No. 154 at 1-2.)
CONCLUSION
For these reasons, the Court adopts Judge McCarthy’s R&R in its entirety. The Court
kindly directs the Clerk of Court to enter judgment as follows: Plaintiff is awarded $8,000.00 in
actual damages, $500.00 in statutory damages, $103,214.37 in attorney’s fees, and $5,924.87 in
costs, for a total award of $117,639.24. The Clerk of Court is also respectfully directed to close
this case.
Dated: September 24, 2024
White Plains, New York

SO ORDERED:

________________________________
NELSON S. ROMÁN
United States District Judge

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