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Avanti Enterprises, Inc. v. A&T Produce

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


September 30, 2010

AVANTI ENTERPRISES, INC., PLAINTIFF,
v.
A&T PRODUCE, INC., ENVER SABANOVIC, AND TAIP SABANOVIC DEFENDANTS.

The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.

ORDER

Plaintiff Avanti Enterprises, Inc. ("Avanti") brings an action under the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. §§ 499a -- 499t, against A&T Produce, Inc. ("A&T"), and Enver Sabanovic and Taip Sabanovic (collectively, "Defendants"), alleged to be principal officers of A&T. (Complaint (Docket Entry # 1).) Avanti seeks damages for A&T's alleged failure to pay for a shipment of produce. (Id.) On August 12, 2009, Avanti moved for a default judgment against Defendants. (Docket Entry # 7.) On November 9, 2009, the Clerk of the Court entered a default against Defendants. (Docket Entry # 8.) On December 21, 2009, the court referred the matter to Magistrate Judge Steven M. Gold for a damages inquest. (Docket Entry # 9.) On July 21, 2010, Judge Gold recommended that the court deny Avanti's Motion for Default Judgment because Avanti effected improper service on A&T, and because the Complaint fails to sufficiently plead a cause of action under PACA against the individual Defendants. ("R&R" (Docket Entry # 16.) Judge Gold further recommended that Avanti be allowed leave to file an amended complaint addressing the concerns outlined in his R&R, and properly serve the amended complaint on Defendants.

No party has objected to Judge Carter's R&R, and the time for doing so has passed. See Fed. R. Civ. P. 72(b)(2). Having reviewed Judge Gold's thoroughly reasoned R&R, the court adopts it in its entirety. See, e.g., Brown v. Ebert, No. 05-CV-5579 (DLC), 2006 U.S. Dist. LEXIS 94265, at *6 (S.D.N.Y. Dec. 29, 2006) (where no party objects to a magistrate judge's report and recommendation, review is for "clear error"). Accordingly, the court DENIES Avanti's Motion for Default Judgment. The court also grants Avanti leave to file an amended complaint by Friday, October 22, 2010.

SO ORDERED.

NICHOLAS G. GARAUFIS United States District Judge

20100930

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