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Boston Restaurant Associates, Inc. v. Ward, 17-CV-5557-FB-RML. (2018)

Court: District Court, E.D. New York Number: infdco20181204b87 Visitors: 4
Filed: Dec. 03, 2018
Latest Update: Dec. 03, 2018
Summary: MEMORANDUM AND ORDER FREDERIC BLOCK , Senior District Judge . On August 1, 2018, Magistrate Judge Levy issued a Report and Recommendation ("R&R") recommending that plaintiff's Motion for Default Judgment be denied. The R&R advised that "[a]ny objections to this Report and Recommendation must be filed . . . within fourteen (14) days," and that "[f]ailure to file objections within the specified time waives the right to appeal the district court's order." R&R at 16. The R&R was served on all
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MEMORANDUM AND ORDER

On August 1, 2018, Magistrate Judge Levy issued a Report and Recommendation ("R&R") recommending that plaintiff's Motion for Default Judgment be denied. The R&R advised that "[a]ny objections to this Report and Recommendation must be filed . . . within fourteen (14) days," and that "[f]ailure to file objections within the specified time waives the right to appeal the district court's order." R&R at 16. The R&R was served on all defendants at their last known address on August 1, 2018, making objections due by August 15, 2018.1 To date, no objections have been filed.

Where clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R&R without de novo review. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court, however, will excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

No such error appears on the face of the R&R. Therefore, the Court adopts it without de novo review and denies plaintiff's Motion for Default Judgment. The Clerk shall dismiss this action without prejudice.

SO ORDERED.

FootNotes


1. On September 26, 2018, the notice mailed to defendant Michael Ward, Chief Executive Officer of Regina's Family Pizza Inc. d/b/a Regina Café & Pizzeria was returned to sender as undeliverable. Given the outcome of the case, however, there is no prejudice against defendants here.
Source:  Leagle

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