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Lopa v. Fireman's Fund Insurance Co.

United States District Court, E.D. New York

March 31, 2014

FRANK LOPA and ROSEMARY LOPA, Plaintiffs,
v.
FIREMAN'S FUND INSURANCE COMPANY, Defendant.

LAW OFFICES OF JERRY BROWN Jerry Brown Chicago, IL, Attorney for Plaintiffs.

ROBINSON & COLE LLP John P. Malloy Benjamin B. Adams Hartford, CT, Attorney for Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

STERLING JOHNSON, Jr., District Judge.

Plaintiff Frank Lopa and Rosemarie Lopa (collectively, "Plaintiffs" or "the Lopas") brought this action alleging breach of contract against Defendant Fireman's Fund Insurance Company ("Defendant" or "Fireman's Fund") after a fire caused extensive damage to their residence.

Presently before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b), alleging failure to prosecute. The matter was referred to Magistrate Judge Vera M. Scanlon for a Report and Recommendation ("Report"). Judge Scanlon issued a Report on February 18, 2014, recommending: (1) Defendant's motion be denied without prejudice, (2) Plaintiffs be ordered to pay Defendant's reasonable attorneys' fees and costs in bringing this motion, or some portion thereof, and (3) Defendant be ordered to submit its time records concerning the present motion.

Following the issuance of the Report, Defendant made a timely objection to the Court on March 4, 2014. In its submission, Defendant objected to the Report insofar as Judge Scanlon recommended denying the Motion to Dismiss for Failure to Prosecute, without prejudice. Upon review of the parties' filings, the Report, and Defendant's objection, this Court adopts and affirms Judge Scanlon's Report in its entirety.

DISCUSSION

I. Applicable Law

a. Standard of Review

A district court judge may designate a magistrate judge to hear and determine certain motions pending before the Court and to submit to the Court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within 14 days of service of the recommendation, any party may file written objections to the magistrate's report. See id. If either party objects to the magistrate judge's recommendations, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See id.; see also United States v. Tortora, 30 F.3d 334, 337 (2d Cir. 1994). A de novo determination entails an independent review of all objections and responses to the magistrate's findings and recommendations. See, e.g., Tortora, 30 F.3d at 337-38; cf. Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1045 (2d Cir. 1992).

The Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections may waive the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(1); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

b. Failure to Prosecute

Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). However, dismissal for failure to prosecute is a "harsh remedy to be utilized only in extreme situations." Storey v. O'Brien, 482 F.Appx. 647, 648 (2d Cir. 2012) (quoting U.S. ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004)).

"Because the sanction of dismissal with prejudice has harsh consequences for clients, who may be blameless, we have instructed that it should be used only in extreme situations, ... and even then only upon a finding of willfulness, bad faith, or reasonably serious fault." Drake, 375 F.3d at 254 (internal quotation marks and citations omitted). With respect to a pro se litigant, claims should be dismissed for failure to prosecute "only when the circumstances are ...


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