Michaels v. Agros Trading Confectionery Spolka Akcyjna

Filing 122

DECISION AND ORDER: Michaels's complaint is dismissed for lack of subject matter jurisdiction, and Unitop's motion to dismiss the complaint or, in the alternative, for summary judgment, Docket Item 57 , is DENIED as moot. The case is refer red back to Judge McCarthy—in particular, to address the viability of the counterclaims—consistent with the referral order of May 19, 2017. Docket Item 10 . SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 3/28/2024. (CRT)This was mailed to: the plaintiff.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID T. MICHAELS,
Plaintiff-Counterclaim
Defendant,
16-CV-1015-LJV-JJM
DECISION & ORDER

v.
UNITOP SP. Z.O.O.,
Defendant-Counterclaimant.

On December 19, 2016, the plaintiff, David T. Michaels, commenced this action
for “reverse domain name hijacking” under 15 U.S.C. § 1114(2)(D)(iv-v) and for a
declaratory judgment under the Anti-Cybersquatting Consumer Protection Act, 15
U.S.C. § 1125(d). Docket Item 1. On April 20, 2017, the defendant, Unitop Sp. Z.O.O.
(“Unitop”), formerly Agros Trading Confectionery Spolka Akcyjna (“Agros”),1 filed an
answer with counterclaims for, among other things, trademark and trade dress
infringement. Docket Item 5. On May 19, 2017, this Court referred this case to United
States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C.
§ 636(b)(1)(A) and (B). Docket Item 10.
On February 28, 2022, Unitop moved to dismiss the complaint under Federal
Rule of Civil Procedure 41(b) based on Michaels’s failure to prosecute; in the
alternative, Unitop moved for summary judgment. Docket Item 57; see Docket Item 57-

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Michaels commenced this action against Agros. Docket Item 1. The Court later
ordered that Unitop be substituted as a defendant, Docket Item 45, based on the
parties’ stipulation that Agros had been dissolved and Unitop had acquired the
company, Docket Item 44

3. After Michaels responded to that motion, Docket Item 91, Unitop replied, Docket
Item 93, and—with Judge McCarthy’s leave, Docket Item 95—Michaels filed a
supplemental memorandum, Docket Item 96.
Judge McCarthy then issued an order seeking additional briefing from the parties
on subject matter jurisdiction, an issue that neither party had raised. Docket Item 97;
see Madison Stock Transfer, Inc. v. Exlites Holdings Int’l, Inc., 368 F. Supp. 3d 460, 473
n.10 (E.D.N.Y. 2019) (“[A district c]ourt has an independent obligation to assure itself
that it has subject matter jurisdiction and may raise the issue sua sponte[.]”). The
parties—as well as an amicus curiae, Gerald M. Levine—responded to Judge
McCarthy’s request. See Docket Items 98, 101, and 103.
On September 29, 2023, Judge McCarthy issued a preliminary Report and
Recommendation (“R&R”) in which he stated that he “intend[ed] to recommend that
Michaels’[s] [c]omplaint be dismissed for lack of subject matter jurisdiction.” Docket
Item 107 at 8. But because that “recommendation [was] based on certain factors” that
neither side yet “had a full opportunity to address,” Judge McCarthy invited “additional
submissions as to whether [he] should reconsider [his] intended recommendation.” Id.
Both Levine, as amicus, and Michaels did so. See Docket Items 108-10.
On October 17, 2023, Judge McCarthy issued a final R&R stating that the latest
submissions had given him “no reason to reconsider [his intended] recommendation,”
and he therefore recommended that Michaels’s complaint be dismissed for lack of

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subject matter jurisdiction. Docket Item 113. The parties did not object to the R&R, and
the time to do so now has expired.2 See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636
nor Federal Rule of Civil Procedure 72 requires a district court to review the
recommendation of a magistrate judge to which no objections are raised. See Thomas
v. Arn, 474 U.S. 140, 149-50 (1985). So based on the absence of any objections, the
Court accepts and adopts Judge McCarthy’s recommendation to dismiss the complaint
for lack of subject matter jurisdiction.
Michaels’s complaint therefore is dismissed for lack of subject matter jurisdiction,
and Unitop’s motion to dismiss the complaint or, in the alternative, for summary
judgment, Docket Item 57, is DENIED as moot. The case is referred back to
Judge McCarthy—in particular, to address the viability of the counterclaims—consistent
with the referral order of May 19, 2017. Docket Item 10.

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Michaels sought four extensions of time to file objections, see Docket Items
114, 116, 118, and 120, and this Court granted him four extensions, Docket Items 115,
117, 119, and 121. In granting the fourth extension, the Court informed Michaels that
“[n]o further extensions w[ould] be granted” and that “if Michaels d[id] not file objections
by [March 1, 2024], the Court [would] review the R&R based on the submissions made
as of that date.” Docket Item 121. Michaels did not file any objections—or, indeed, any
response whatsoever—and the time to do so now has passed.

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SO ORDERED.

Dated:

March 28, 2024
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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