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Bay Chevrolet, Inc v. General Motors Corp.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


October 3, 2011

BAY CHEVROLET, INC., PLAINTIFF,
v.
GENERAL MOTORS CORP., ARGONAUT HOLDINGS, INC., AND KENNETH BRODLIEB,
DEFENDANTS.

The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

On January 15, 2008, plaintiff Bay Chevrolet Inc. ("plaintiff") commenced its first action (No. 08-CV-233, the "First Action") against defendants General Motors Corporation ("General Motors") and Argonaut Holdings, Inc. ("Argonaut Holdings") in New York Supreme Court, alleging, inter alia, breach-of-contract claims. (First Action, ECF No. 1, Notice of Removal, at 2.) On September 23, 2008, plaintiff commenced a second action (No. 08-CV-4631, the "Second Action") against General Motors and Kenneth Brodlieb ("Brodlieb") in New York Supreme Court, asserting claims similar to those in the First Action, based on the same facts and circumstances. (Second Action, ECF No. 1, Notice of Removal, at 2.) Defendant General Motors removed both actions to this court on January 16, 2008,*fn1 and November 14, 2008, respectively. Before the court is

Magistrate Judge Azrack's Report and Recommendation that both of plaintiff's actions be dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (See First Action, ECF No. 49, Report & Recommendation, dated 8/11/2011; Second Action, ECF No. 31, Report & Recommendation, dated 8/11/2011.)

As explicitly noted at the end of the Report and Recommendation, any objections to the Report and Recommendation were to be filed within fourteen days of August 11, 2011. (Id. at 4.) According to a notation entered on the docket sheet, copies of the Report and Recommendation were sent via first-class mail, postage pre-paid, to plaintiff's two last known addresses and to plaintiff's "Chairman or Chief Executive Officer," Robert

A. Benjamin, on August 12, 2011. (See First Action, ECF No. 50, Affidavit/Affirmation of Service, dated 8/12/11; Second Action, ECF No. 32, Affidavit/Affirmation of Service, dated 8/12/11.) The period for filing objections has now expired, and no objections to Magistrate Judge Azrack's Report and Recommendation have been filed.

In reviewing a Report and Recommendation, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Where no objection to the Report and Recommendation has been filed, the district court "need only satisfy itself that there is no clear error on the face of the record." Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).

Having reviewed Magistrate Judge Azrack's well-reasoned and thorough Report and Recommendation, the record before the court which indicates multiple extensions for the corporate plaintiff to obtain counsel and warnings of dismissal for failure to do so, and the relevant case law, the court finds that there is no clear error in the Report and Recommendation and hereby affirms and adopts the Report and Recommendation in its entirety as the opinion of the court. Accordingly, plaintiff's actions, 08-cv-233 and 08-cv-4631, are dismissed with prejudice for failure to prosecute.

Defendant General Motors is directed to serve a copy of this Memorandum and Order on plaintiff and to file a declaration of service by October 5, 2011, and the Clerk of the Court is respectfully ordered to enter judgments in favor of defendants and close both cases.

SO ORDERED.

Kiyo A. Matsumoto United States District Judge


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