The Standing Issue.
In their reply papers, the defendant argues that plaintiff lacks standing inasmuch as the copyright in question was never properly re-assigned from Longwin Inc. to plaintiff. In support of this proposition, attached as Exhibit A to the Affidavit of Ralph L. Halpern, Esq. is a certified statement from the Copyright Office of the United States Library of Congress attesting to the fact that there has been no recordation of any document purporting to re-assign the copyright from Longwin to plaintiff (or anyone else). Inasmuch as this issue was raised in the defendant's reply papers, and not in its original motion papers, the plaintiff has not had an appropriate opportunity to respond. Thus, particularly in light of this Court's findings as to the substantive issues above, this Court declines to address this issue.
Based on the above, this Court recommends that the defendant's motion for summary judgment be GRANTED, and that plaintiff's cross-motion for summary judgment and sanction be DENIED.
Pursuant to 28 USC § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy to the Report & Recommendation to all parties.
ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report & Recommendation in accordance with 28 USC § 636(b)(1), Fed. R. Civ. P. 72(b) and WDNY Local Rule 72(a)(3).
FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to WDNY Local Rule 72(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72(a)(3)may result in the District Court's refusal to consider the objection.
Hon. Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
November 27, 1996