Report and Recommendation, and included plaintiff's objections to the original Report and Recommendation with those objections. Thus, plaintiff's Rule 6(b)(2) motion would have the effect, if granted, of rendering plaintiff's objections to the original Report and Recommendation timely for purposes of appellate review.
Defendants oppose plaintiff's Rule 6(b)(2) motion arguing that the concluding paragraph of the original Report and Recommendation expressly established a deadline for submission of objections, and that plaintiff failed to file timely any objections to that report. Plaintiff's counsel responds that he considered the concluding language of the original Report and Recommendation to be "boilerplate language," and assumed that because Magistrate Bernikow had stated, in the original report, his intention to issue a supplemental report and recommendation, the deadline for submission of objections had been extended until after that report was filed.
Rule 6(b)(2) provides that the Court may "upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect." The determination of whether neglect is "excusable" in a particular case is within the district court's sound discretion. Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984); Supermarkets Gen. Corp. v. Grinnell Corp., 490 F.2d 1183, 1186 (2d Cir. 1974).
Plaintiff's counsel's assumption that the concluding paragraph of the original Report and Recommendation, which set a clear deadline for filing objections, was mere "boilerplate language" does not fall within the ambit of "excusable neglect." Magistrate Bernikow included in his report all of the language setting forth the deadline and procedures for filing of objections required by the Second Circuit, see Small, 892 F.2d at 16, including the caveat, "Failure to object by that date will preclude appellate review." Plaintiff's counsel has not demonstrated reasons sufficient to excuse his failure to observe this clear deadline.
Accordingly, plaintiff's Rule 6(b)(2) motion for a retroactive enlargement of the time for filing objections to the original Report and Recommendation is DENIED.
For the reasons set forth above, this Court adopts Magistrate Bernikow's Report and Recommendation in its entirety. The motions to dismiss the complaint are hereby GRANTED and the complaint is dismissed as to defendants Satinder Vohra, Sunil (Sanjit) Vohra, Sunil Bhasin, Walji Raghvani, William Capparelli, the Sarova Group, Empat Enterprises, Inc., M.R.N. & S., Inc., M.D. Contractors (N.Y.) Corp., and Service Plus Demolition, Inc. The motion for the imposition of sanctions is hereby DENIED.
This Court also adopts Magistrate Bernikow's Supplemental Report and Recommendation in its entirety. Accordingly, leave to replead is hereby DENIED.
Finally, plaintiff's motion for a retroactive enlargement of the time for filing objections to the original Report and Recommendation is hereby DENIED.
DATED: New York, New York
July 21, 1994
David N. Edelstein