Kloppel v. Sears Holdings Corporation et al

Filing 186

DECISION AND ORDER denying 177 Motion to Intervene or, in the Alternative, Amend the Complaint; granting 181 Motion to Strike; adopting 184 Report and Recommendations. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 1/26/2023. (MDS)

Case 6:17-cv-06296-FPG-MJP Document 186 Filed 01/26/23 Page 1 of 2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MIKE KLOPPEL and
ADAM WILSON,
Plaintiff,
v.

Case # 17-CV-6296-FPG
DECISION AND ORDER

HOMEDELIVERYLINK, INC.,
Defendant.

On September 1, 2022, Plaintiffs filed a Motion to Intervene or, in the Alternative, Amend
the Complaint. ECF No. 177. On September 19, 2022, Defendant responded. ECF No. 178. On
September 30, 2022, Plaintiffs replied. ECF No. 179-80. On October 10, 2022, Defendant filed
a Motion to Strike Plaintiffs’ reply. ECF No. 181. On November 29, 2022, Magistrate Judge
Pedersen—pursuant to a referral by the undersigned, ECF No. 86—issued a Report &
Recommendation (“R&R”) in which he recommended that Plaintiffs’ Motion to Intervene or
Amend the Complaint be denied and Defendant’s Motion to Strike be granted. ECF No. 184.
Neither party has objected to Magistrate Judge Pedersen’s R&R. 1
As a general matter, a district court reviews portions of an R&R to which a party makes
specific objections de novo. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). When a party
does not object to the R&R, however, the court will review it for clear error. EEOC v. AZ Metro
Distributors, LLC, 272 F. Supp. 3d 336, 339 (E.D.N.Y. 2017). “When performing such a clear
error review, the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Boice v. M+W U.S., Inc., 130 F. Supp. 3d 677, 686

On December 12, 2022, Plaintiffs filed a response to the R&R stating that Plaintiffs “are not appealing or objecting
to” the R&R. ECF No. 185.
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Case 6:17-cv-06296-FPG-MJP Document 186 Filed 01/26/23 Page 2 of 2

(N.D.N.Y. 2015) (internal quotation marks omitted). After conducting the appropriate review, the
court may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
After due consideration, the Court concludes that Magistrate Judge Pedersen’s R&R is free
of “clear error.” Boice, 130 F. 3d at 686. With respect to Plaintiffs’ motions, Magistrate Judge
Pedersen correctly concluded that the motions should be denied because Plaintiffs (i) failed to
satisfy the criteria for intervention as of right under Federal Rule of Civil Procedure 24(a), and (ii)
amendment of the complaint would be inappropriate at this stage of litigation. ECF No. 184 at 910. With respect to Defendant’s motion, Magistrate Judge Pedersen correctly concluded that the
motion should be granted because Plaintiffs failed to state an intention to reply in their notice of
motion to intervene or amend, in violation of Local Rule 7(a)(1). Id. at 5. The Court fully concurs
with Magistrate Judge Pedersen’s R&R.
CONCLUSION
For the reasons stated above, the Court ADOPTS Magistrate Judge Pedersen’s R&R (ECF
No. 184). Plaintiffs’ Motion to Intervene or Amend the Complaint (ECF No. 177) is DENIED.
Defendant’s Motion to Strike (ECF No. 181) is GRANTED.
IT IS SO ORDERED.
Dated: January 26, 2023
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

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