United States District Court, E.D. New York
HAMBURG-SUD NORTH AMERICA, INC., HAMBURG-SUD BRASIL LTD A, and HAMBURG SUDAMERIKANISCHE DAMPFSCHIFFAHRTS GESSELSCHAFT K.A., Plaintiffs,
BOMIX INDUSTRIA DE EMBALAGENS LTDA, Defendant.
ELECTRONIC OR PRINT PUBLICATION
MEMORANDUM AND ORDER
R. ROSS, UNITED STATES DISTRICT JUDGE
Court has received the Report and Recommendation ("R
& R") on the instant case dated November 3, 2017
from the Honorable Steven M. Gold, United States Magistrate
Judge. See R & R, ECF No. 37. In his R & R,
Judge Gold recommended that the Court deny plaintiffs'
motion for default judgment and dismiss the complaint.
Id. at 14. On November 17, 2017, plaintiffs timely
filed a limited objection. See Obj. to R & R,
ECF No. 38. As explained below, I adopt Judge Gold's
thorough R & R and issue a superseding order that renders
plaintiffs' objection moot.
brought this action under the Declaratory Judgment Act, 28
U.S.C. § 2201 et seq., in connection with a
bill of lading subject to the Carriage of Goods by Sea Act
("COGS A"), 46 U.S.C. § 30701 et seq.
See Compl. at 1-2, ECF No. 1. In bringing the lawsuit,
plaintiffs sought to obtain a judgment declaring limits to
the damages recoverable in a pending lawsuit filed against
them in Brazil by defendant Bomix Industria de Embalagens
Ltda ("Bomix"), a Brazilian corporation.
See Compl. ¶ 46. Bomix failed to appear or
otherwise defend this action. Plaintiffs sought and obtained
a certificate of default against Bomix and filed a motion for
default judgment pursuant to Rule 55 of the Federal Rules of
Civil Procedure. See ECF Nos. 17, 18, 22.
R & R, Judge Gold found that the Court lacked subject
matter jurisdiction over this case because "by
plaintiffs' own admission, this Court's issuance of a
declaratory judgment .. .would be merely advisory in both
purpose and effect." R & R at 6-7. Finding no
"case or controversy, " Judge Gold explained that
because a declaratory judgment would have only a
"hypothetical and speculative" impact on the
plaintiffs' action in Brazil, granting the motion
"will not-and indeed, by itself, could not-provide
'specific relief of a 'conclusive character,
"' sufficient to give the Court subject matter
jurisdiction. Id. at 7, 10 (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)). "Put simply, a
declaratory judgment in this case would not resolve any legal
dispute between plaintiffs and defendant or impose or enforce
any duty owed by one to the other; to the contrary, the
effect of a declaratory judgment, if any, would be solely
advisory." Id. at 10.
Gold proceeded to address other issues that he saw as
impediments to the Court's ability to afford plaintiffs
the relief they sought. Though he did not resolve the issues
in light of his recommendation to deny the motion for lack of
jurisdiction, he identified two substantial hurdles: the
existence of a forum selection clause in the bill of lading,
giving the courts of the City of Hamburg, Germany "and
no other courts" sole jurisdiction to resolve "any
claim, dispute, suit or proceeding" related to the bill
of lading, id. at 10 (internal citation omitted), as
well as the defendants' lack of contacts with New York,
Id. at 14.
fourteen pages of analysis, Judge Gold rendered his ultimate
recommendation- that plaintiffs' motion for default
judgment be denied and the complaint be dismissed-and wrote,
"Plaintiffs shall forthwith serve copies of this Report
and Recommendation upon the defaulting defendant at its last
known address and file proof of service with the Court."
Id. at 15. It is this line, and this line only, to
which the plaintiffs object. See Obj. at 1.
Court reviews "de novo any part of the magistrate
judge's disposition that has been properly objected
to." Fed.R.Civ.P. 72(b); see also Brissett v.
Manhattan & Bronx Surface Transit Operating Auth.
No. 09-CV-874 (CBA) (LB), 2011 WL 1930682, at *1
(E.D.N.Y. May 19, 2011). Where no timely objections have been
filed, "the district court need only satisfy itself that
there is no clear error on the face of the record."
Finley v. Trans Union, Experian, Equifax, No.
17-CV-0371 (LDH) (LB), 2017 WL 4838764, at *1 (E.D.N.Y. Oct.
24, 2017) (quoting Estate of Ellington ex rel. Ellington
v. Harbrew Imports Ltd., 812 F.Supp.2d 186, 189
(E.D.N.Y. 2011)). After review, the district judge may
accept, reject, or modify any of the magistrate judge's
findings or recommendations. Fed.R.Civ.P. 72(b)(3).
do not object to the substance of Judge Gold's R & R.
Having reviewed the record, I find no clear error. Judge Gold
correctly concluded that this Court lacks subject matter
jurisdiction because there is no "case or
controversy." R & R at 7; see U.S. Const.,
art. III § 2, cl. 1. As he notes, if this Court were to
issue a declaratory judgment, it could have no bearing on the
ultimate outcome of the "actual controversy." R
& R at 8; see Nebraskaland, Inc. v. Sunoco, Inc. (R
& M), No. 10-CV-1091 (DGT) (CLP), 2010 WL 5067962,
at *6-7 (E.D.N.Y. Dec. 7, 2010) ("[T]he fact that
plaintiffs underlying lawsuit 4will necessarily settle the
issues for which declaratory judgment is sought suggests that
the declaratory judgment will serve no useful
purpose."') (quoting Amusement Indus., Inc. v.
Stern, 693 F.Supp.2d 301, 311 (S.D.N.Y. 2010)).
Therefore, I adopt Judge Gold's findings and
recommendations in this regard.
28 U.S.C. § 636(b)(1)(C) and arguing that defendants no
longer qualify as parties to these proceedings given their
"express" decision not to participate, plaintiffs
object to Judge Gold's order to serve the defendant with
a copy of the R & R. Obj. at 2. They argue that the order
is "is contrary to the law and clearly erroneous"
and ask this Court to strike "that portion" of the
R&R. Id.. at 2-3.
interests of judicial economy, the Court orders the Clerk of
Court to serve this Order and the underlying R & R to the
defaulting defendant at its last known address. See Dietz
v. Bouldin,136 S.Ct. 1885, 1891 (2016) ("A
district court possesses inherent powers that are
'governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of
cases.'") (quoting Link v. Wabash R. Co.,370 ...