United States District Court, S.D. New York
ROBERT G. LOPEZ, Plaintiff,
SHOPIFY, INC. and SHOPIFY USA, INC., Defendants.
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE:
Robert Lopez, proceeding pro se, alleges claims for
copyright infringement, trademark infringement, unfair
competition, and unjust enrichment. Lopez owns a copyright in
a “Hustle Snapback Design” and a stylized
“HUSTLE” trademark. Am. Compl. ¶¶ 1-3
(Dkt. 7). Shopify (owned and operated by defendants Shopify,
Inc. and Shopify (USA), Inc.) is an e-commerce platform that
provides support to the apparel industry. Am. Compl. ¶
21. In October 2015, Lopez alleges, Shopify provided services
to another merchant using the “HUSTLE” mark to
sell similar products without Lopez's permission. Am.
Compl. ¶¶ 23-24. Rather than sue the offending
competitor, Lopez brought this action against Shopify.
moved to dismiss on a number of grounds, including that it is
not amenable to personal jurisdiction in this forum, that
service was ineffective as to Shopify, Inc., and that Lopez
failed to state a claim in any event. Dkts. 13, 14. Shopify,
Inc. is a Canadian entity. Am. Compl. ¶ 9. Shopify (USA)
is a Delaware entity based in Ontario. Neither defendant is
registered to do business in New York and neither has any
employees or an office in New York. Zipes Declr. ¶¶
5, 7. Lopez does not allege that the offensive products were
sold in New York, marketed particularly to New York
residents, or sold from New York. Defendants filed their
motion to dismiss on March 29, 2017. Dkts. 13. On April 11,
2017, Lopez filed an opposition, but he did not seek
jurisdictional discovery or allege any additional facts
relevant to Shopify's contacts with this forum. Dkt. 23.
Shopify replied on April 18, 2017. Dkt. 28.
Court referred this case to Magistrate Judge Peck for general
pre-trial and preparation of a report and recommendation on
any dispositive motion. Dkt. 3. Magistrate Peck issued a
report and recommendation (the “R&R”) on May
22, 2017. Dkt. 31. Judge Peck found that Lopez had not
properly served Shopify, Inc. and that the Court lacked
personal jurisdiction over the Defendants. R&R at 12, 20.
Judge Peck recommended that the motion be granted without
leave to amend, notwithstanding Lopez's pro se
status. R&R at 20-21. Lopez did not file any objections
to the R&R and his time to do so has
reviewing a report and recommendation, a 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). When no
objections are made to a magistrate judge's report, a
district court may adopt the report so long as “there
is no clear error on the face of the record.”
Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211
(S.D.N.Y. 2013) (citing Nelson v. Smith, 618 F.Supp.
1186, 1189 (S.D.N.Y. 1985)). Failure to file timely
objections to the magistrate judge's report constitutes a
waiver of those objections in the district court and on later
appeal to the United States Court of Appeals. See Small
v. Sec'y of Health & Human Servs., 892 F.2d 15,
16 (2d Cir. 1989) (per curiam); see also Thomas v.
Arn, 474 U.S. 140, 149-50 (1985) (holding that Section
636 does not require review of a magistrate's findings if
no party objects).
no objections to the R&R were filed, the Court reviews
for “clear error.” Phillips, 955
F.Supp.2d at 211. Upon careful review, the Court finds no
clear error in Magistrate Judge Peck's well-reasoned
decision. The Court adopts the R&R in full.
motion to dismiss is GRANTED and the Amended Complaint is
DISMISSED WITHOUT PREJUDICE. The Clerk of Court is
respectfully requested to close the open motion at docket
entry 13, enter judgment in favor of Defendants, and
terminate the case. The Clerk of Court is further requested
to mail a copy of this Order and the R&R to Plaintiff and
note service on the docket.
 According to Shopify (USA) Inc., it is
based in California, not Ontario. See Declaration of
Erin Zipes (dkt. 15) (“Zipes Declr.”) ¶ 5.
The difference is immaterial.
 On April 19, 2017, Lopez filed a
letter informing the Court that he “do[es] NOT consent
to the Motion to Dismiss filed in this action being decided
by a Magistrate Judge.” Dkt. 30. The R&R was not
filed until May 22, 2017, and so that letter did not
constitute an objection to the R&R. In any event, the
Court need not consider conclusory objections to the R&R.
See Pineda v. Masonry Constr., Inc., 831 F.Supp.2d
666, 671 (S.D.N.Y. 2011). (To the extent that a party's
objections “are conclusory or ...