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J&J Sports Productions, Inc. v. Byza Restaurant Corp.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


March 10, 2010

J&J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
BYZA RESTAURANT CORP. D/B/A BYZANTIO CAFÉ & BAR, PETER PETERS, AND GEORGIA PETERS, DEFENDANTS.

The opinion of the court was delivered by: Block, Senior District Judge

MEMORANDUM AND ORDER

After defendants failed to appear in this action, plaintiff moved for a default judgment. See Docket Entry # 7 (Motion). Defendants subsequently appeared through counsel and moved to set aside plaintiff's service of the summons and complaint. See Docket Entry # 10 (Motion). The Court referred defendants' motion to the magistrate judge assigned to the case; on February 17, 2010, Magistrate Judge Carter issued a Report and Recommendation ("R&R") recommending that the Court grant defendants' motion, which it construed as a Fed. R. Civ. P 12(b)(5) motion to dismiss, because plaintiff failed to properly effectuate service of process on any defendant. See R&R at 10. The R&R also stated that failure to object within fourteen days would preclude appellate review. See id. Attorney for plaintiff was electronically notified of the R&R on February 18, 2010; no objections have been filed.

If 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 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 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 here.

The Court adopts the findings set forth in the R&R. Accordingly, defendants' motion is granted, and the complaint is dismissed.

SO ORDERED.

FREDERIC BLOCK Senior United States District Judge

20100310

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