Elder et al v. David J. Gold, P.C.

Filing 29

ORDER granting 5 Motion to Dismiss; granting in part and denying in part 9 Motion to Dismiss. Case is referred back to Magistrate Judge for further proceedings. Signed by Hon. Richard J. Arcara on 10/19/2009. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK J O H N ELDER, et al., Plaintiffs, v. ORDER 08-CV-733 DAVID J. GOLD, P.C., D e fe n d a n t. T h is case was referred to Magistrate Judge Hugh B. Scott, pursuant to 28 U .S .C . 636(b)(1). On November 11, 2008, plaintiff filed a motion to dismiss the c o u n te rc la im . On December 5, 2008, defendant filed a motion to dismiss the c o m p la in t. On August 18, 2009, Magistrate Judge Scott filed a Report and R e c o m m e n d a tio n , recommending that the motion to dismiss the counterclaims be g ra n te d and the motion to dismiss the complaint be granted to the extent the p la in tiffs asserted claims under 1692e(2)(A) and 1692e(5); and that the motion b e otherwise denied. D e fe n d a n t filed objections to the Report and Recommendation on August 2 8 , 2009 and plaintiff filed a response thereto. Oral argument on the objections w a s held on September 29, 2009. The Court notes that defendant objected only to Magistrate Judge Scott's nondispositive finding concerning attorney fees. (See D k t. No. 21 at 11.) Pursuant to 28 U.S.C. 636(b)(1)(A), the district court "may reconsider any p re tria l matter under this [section] where it has been shown that the magistrate's o rd e r is clearly erroneous or contrary to law." The Court has reviewed d e fe n d a n t's objections and Magistrate Judge Scott's Report and R e c o m m e n d a tio n . Upon such review and after hearing argument from counsel, th e Court finds that the portion of Magistrate Judge Scott's Report and R e c o m m e n d a tio n to which defendant has objected, is neither clearly erroneous n o r contrary to law. The Court has carefully reviewed the remainder of the Report and Recommendation, the record in this case, and the pleadings and materials s u b m itte d by the parties, and no objections having been timely filed, it is hereby ORDERED, that for the reasons set forth in Magistrate Judge Scott's R e p o rt and Recommendation, the motion to dismiss the counterclaims is granted a n d the motion to dismiss the complaint is granted to the extent the plaintiffs a s s e rte d claims under 1692e(2)(A) and 1692e(5); and that the motion is o th e rw is e denied. T h e case is referred back to Magistrate Judge Scott for further p r o c e e d in g s . 2 SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: October 19, 2009 3

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