The opinion of the court was delivered by: WOOD
In a Report and Recommendation dated February 6, 1997 (the "Report"), Magistrate Judge Andrew J. Peck recommended that I: grant defendant Edward Greenberg ("Greenberg")'s motion for summary judgment pursuant to Fed. R. Civ. P. 56 on the Fair Credit Reporting Act claim; deny plaintiffs's motion to file a second amended complaint to assert a negligence claim against defendant Greenberg; dismiss plaintiffs' pendent state law invasion of privacy claim against defendant Greenberg without prejudice;
and deny defendant Vincent Parco ("Parco")'s motion for summary judgment.
Plaintiff Lucille Turecki ("Turecki") filed objections to the Report on February 19, 1997.
Accordingly, I review the sections of the Report to which plaintiff Turecki objects de novo pursuant to 28 U.S.C. § 636(b).
Defendant Parco never objected to the Report. In conformity with Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989), the Magistrate Judge's Report explicitly cautioned that failure to file timely objections could constitute a waiver of those objections. I therefore accept and adopt the Magistrate Judge's recommendation with respect to Parco's motion for summary judgment. See Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985) (failure to file timely objections constitutes waiver of objections, and district court review not required).
Familiarity with the facts of this case, which are clearly laid out in both the Report and in an earlier opinion, Berman v. Parco, 1996 U.S. Dist. LEXIS 11921, 96 Civ. 0375, 1996 WL 46579 (S.D.N.Y. Aug. 15, 1996), is assumed. In brief, this case arose in the aftermath of Turecki's contentious divorce from her ex-husband, Stanley Turecki. Turecki and Berman, Turecki's current husband, have sued Turecki's ex-husband's private investigator, Parco; Parco's company, International Investigations, Inc.; and Turecki's ex-husband's divorce attorney, Greenberg, for alleged violations the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"). The basis of the complaint comes from a report written by Parco and dated June 15, 1995 (the "June 15 Report"), that contained credit profiles of Turecki and Berman. This report was faxed to defendant Greenberg after a conversation between Parco and Greenberg, and was intended for use in the arbitration proceedings between Turecki and her ex-husband surrounding their divorce.
Turecki has two main objections to Magistrate Judge Peck's Report. First, Turecki argues that Magistrate Judge Peck exceeded his authority in finding that Greenberg did not act willfully and recommending that I grant Greenberg's summary judgment motion. Second, she argues that it would be an abuse of this Court's discretion to deny her leave to amend her complaint to state a claim for negligent violation of the FCRA. I will discuss these objections in turn.
A. Summary Judgment on Greenberg's Alleged Violation of FCRA §§ 1681n and 1681q
The relevant sections of the FCRA
at issue in this case, prohibit the willful use of credit reports for improper purposes.
Specifically, Section 1681n provides that:
Any consumer reporting agency or user of information which willfully fails to comply with any requirement imposed under this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of
(1) any actual damages sustained by the consumer as a result ...