Lackawanna Chiropractice P.C. v. Tivity Health Support, LLC

Filing 72

DECISION & ORDER accepting and adopting the 66 Report and Recommendation and denying the 54 motion for preliminary approval of the modified class action settlement. The case is referred back to Judge McCarthy for further proceedings consistent with the referral order of August 21, 2019, Docket Item 40. SO ORDERED. Issued by Hon. Lawrence J. Vilardo on 11/15/2021. (WMH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LACKAWANNA CHIROPRACTIC P.C., a
New York professional corporation,
individually and on behalf of all others
similarly situated,
Plaintiff,

18-CV-649-LJV-JJM
DECISION & ORDER

v.
TIVITY HEALTH SUPPORT, LLC, a
Delaware limited liability company,
Defendant.

On June 7, 2018, the plaintiff, Lackawanna Chiropractic P.C. (“Lackawanna”),
commenced this putative class action alleging that Tivity Health Support, LLC, violated
the Telephone Consumer Protection Act, 47 U.S.C. § 227. Docket Item 1. On August
21, 2019, this case was referred to United States Magistrate Judge Jeremiah J.
McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 40.
On March 6, 2020, Lackawanna moved for preliminary approval of a modified
class action settlement. Docket Item 54. On July 7, 2020, Judge McCarthy issued a
Report and Recommendation (“R&R”) finding that Lackawanna’s motion should be
denied because the proposed settlement class lacked Article III standing. Docket Item
61. On August 27, 2021, this Court concluded that Lackawanna had adequately alleged
Article III standing and referred the motion for preliminary approval back to Judge
McCarthy for further consideration. Docket Item 65.

On September 20, 2021, Judge McCarthy issued a second R&R, again finding
that Lackawanna’s motion for preliminary approval should be denied. Docket Item 66.
More specifically, Judge McCarthy found that the motion should be denied because
Lackawanna “failed to demonstrate that this court would be likely to certify the proposed
settlement class” and “failed to demonstrate that this court would be likely to approve
the settlement proposal under Rule 23(e)(2).” Id. at 6-7. On November 1, 2021, the
plaintiff notified this Court that the parties would not be filing objections to the second
R&R. Docket Item 71. In any event, no objections were filed, and the time to object
now has expired.
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).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge McCarthy’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
McCarthy’s recommendation to deny the plaintiff’s motion.
For the reasons stated above and in the R&R, the plaintiff’s motion for
preliminary approval of the modified class action settlement, Docket Item 54, is

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DENIED. The case is referred back to Judge McCarthy for further proceedings
consistent with the referral order of August 21, 2019, Docket Item 40.

SO ORDERED.
Dated:

November 15, 2021
Buffalo, New York

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

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