United States District Court, E.D. New York
IMPERIUM INSURANCE COMPANY, formerly known as Delos Insurance Company, formerly known as Sirius America Insurance Company, Plaintiff,
AMERICAN WESTERN HOME INSURANCE COMPANY, pertaining to an underlying action entitled Archstone
Tocci Building Corp. of N.J., Inc., Defendant.
J. FEUERSTEIN United States District Judge
before the Court is the Report and Recommendation of the
Honorable Steven I. Locke, United States Magistrate Judge,
dated November 18, 2016 (“the Report”), (1)
recommending (a) that the motion of plaintiff Imperium
Insurance Company (“plaintiff”) seeking partial
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure declaring that the insurance policy at issue
is governed by New Jersey law be granted, and (b) that New
Jersey law be applied to the interpretation of the insurance
policy; and (2) advising the parties, inter
alia, (a) that “[a]ny objections to th[e]
Report . . . must be filed with the Clerk of the Court within
fourteen (14) days of receipt of th[e] [R]eport[, ]”
(Report at 14), and (b) that a “[f]ailure to file
objections within the specified time waives the right to
appeal the District Court's order.” (Id.)
(citing 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 72;
Ferrer v. Woliver, No. 05-3696, 2008 WL 4951035, at
* 2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118
F.3d 900, 902 (2d Cir. 1997); and Savoie v. Merchants
Bank, 84 F.3d 52, 60 (2d Cir. 1996)). A copy of the
Report was served upon counsel for both parties via ECF on
November 18, 2016, (See Docket Entry
[“DE”] 24), but neither party has filed any
objections to the Report, nor sought an extension of time to
do so. For the reasons stated herein, Magistrate Judge
Locke's Report is accepted in its entirety.
Standard of Review
party may serve and file written objections to a report and
recommendation of a magistrate judge on a dispositive matter
within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).
Any portion of such a report and recommendation to which a
timely objection has been made is reviewed de novo.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The court,
however, is not required to review the factual findings or
legal conclusions of the magistrate judge as to which no
proper objections are interposed. See Thomas v. Arn,
474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
Where a party “received clear notice of the
consequences of the failure to object” to a report and
recommendation on a dispositive matter, Frank v.
Johnson, 968 F.2d 298, 300 (2d Cir. 1992) (quotations
and citation omitted); accord Small v. Secretary of
Health and Human Svcs., 892 F.2d 15, 16 (2d Cir. 1989),
his “failure to object timely to [that] report waives
any further judicial review of the report.”
Frank, 968 F.2d at 16; see also Smith v.
Campbell, 782 F.3d 93, 102 (2d Cir. 2015); Caidor v.
Onondago County, 517 F.3d 601, 604 (2d Cir. 2008).
the waiver rule is “nonjurisdictional” and, thus,
the Court may excuse a violation thereof “in the
interests of justice.” King v. City of New York,
Dep't of Corr., 419 F. App'x 25, 27 (2d Cir.
Apr. 4, 2011) (summary order) (quoting Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993)); see also
DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000).
“Such discretion is exercised based on, among other
factors, whether the defaulted argument has substantial merit
or, put otherwise, whether the magistrate judge committed
plain error in ruling against the defaulting party.”
Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 174 (2d Cir. 2000); accord
King, 419 F. App'x at 27.
Review of Report
neither party has filed any objections to Magistrate Judge
Locke's Report, nor sought an extension of time to do so,
they have “waive[d] any further judicial review of the
findings contained in the [R]eport.” Spence,
219 F.3d at 174. Moreover, as the Report is not plainly
erroneous, the Court will not exercise its discretion to
excuse the parties' default in filing timely objections
to the Report in the interests of justice. Accordingly, the
Report is accepted in its entirety and, for the reasons set
forth therein, plaintiff's motion for partial summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure is granted and judgment is entered declaring that
New Jersey law applies to the interpretation of the insurance
policy at issue in this case.
reasons set forth herein, Magistrate Judge Locke's Report
is accepted in its entirety and, for the reasons set forth
therein, plaintiff's motion for partial summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure
is granted and judgment is entered declaring that New Jersey
law applies to the interpretation of the insurance policy at
issue in this case. The status conference scheduled to be
held before me on April 25, 2017 is advanced to February 15,