Indymac Bank, F.S.B. v. Barth Sullivan Behr, LLP et al

Filing 61

ORDER granting 20 Motion to Dismiss; granting 35 Motion to Dismiss; adopting Report and Recommendation re 59 . Case is referred back to Magistrate Judge Scott for further proceedings. Signed by Hon. Richard J. Arcara on 9/25/2009. (JMB) (Additional attachment(s) added on 9/24/2009: # 1 order) (JMB).

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UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK FEDERAL DEPOSIT INSURANCE CORPORATION AS CONSERVATOR FOR INDYMAC FEDERAL BANK, F.S.B., Plaintiff, ORDER 08-CV-476A v. BARTH SULLIVAN BEHR, LLP, et al., Defendants. The above-referenced case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U.S.C. 636(b)(1)(B). Plaintiff moved to dismiss the defendant's counterclaim and on October 24, 2008, Magistrate Judge Scott issue a report and recommendation recommending that the motion to dismiss the counterclaim be granted. The defendant filed a objection to the report and recommendation and the plaintiff filed a response. On July 20, 2009, this Court held oral argument on the defendant's objections. Pursuant to 28 U.S.C. 636, this Court must conduct a de novo review of the objections to the report and recommendation. Upon such de novo review, it became clear to the Court that the defendant does not challenge the Magistrate Judge's recommendation that his counterclaim be dismissed. Rather, the defendant challenged certain factual statements made in the report and recommendation. In light of that, the Court recommended that the defendant move to have the Magistrate Judge amend his report and recommendation so as to correct the factual errors. The defendant did so and on September 17, 2009, the Magistrate Judge filed an amended report and recommendation. Because the Magistrate Judge has amended the report and recommended to address the defendant's objections, it appears that the defendant's objections are now moot. Accordingly, the Court hereby adopts Magistrate Scott's report and recommendation, as amended by the amended report and recommendation, and denies the defendant's objections as moot. Further, for the reasons stated by Magistrate Judge Scott, the plaintiff's motion to dismiss the defendant's counterclaim (Dkt. No. 20 and 35) is granted. The case is referred back to Magistrate Judge Scott for further proceedings. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: September 24, 2009

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