Hopkins et al v. Booth

Filing 59

DECISION AND ORDER granting 26 the plaintiffs' motion to dismiss the defendant's first amended counterclaim; adopting 37 Report and Recommendations. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 09/06/2019. (RFI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

COLLEEN HOPKINS,
KATHRYN DISALVO, and
DOUGLAS MORRIS, Executor of the
Estate of Margaret Morris,
Plaintiffs,

16-CV-1020
DECISION AND ORDER

v.
JOHN S. BOOTH, III,
Defendant.

On December 21, 2016, the plaintiffs commenced this action. Docket Item 1.
On August 21, 2017, this Court referred this case to United States Magistrate Judge
Leslie G. Foschio for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket
Item 13. On January 26, 2018, the plaintiffs moved to dismiss the defendant’s first
amended counterclaim, Docket Item 26; on February 23, 2018, the defendant
responded, Docket Item 29; and on March 2, 2018, the plaintiffs replied, Docket
Item 30. On February 20, 2019, Judge Foschio issued a Report and Recommendation
("R&R") finding that the plaintiffs' motion should be granted. Docket Item 37. The
parties did not object to the R&R, and the time to do so now has expired. 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). A district court
must conduct a de novo review of 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).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Foschio's R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts
Judge Foschio's recommendation to grant the plaintiffs' motion.
For the reasons stated above and in the R&R, the plaintiffs' motion to dismiss the
defendant’s first amended counterclaim, Docket Item 26, is GRANTED. The case is
referred back to Judge Foschio for further proceedings consistent with the referral order
of August 21, 2017, Docket Item 13.

SO ORDERED.
Dated:

September 6, 2019
Buffalo, New York

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

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