United States District Court, E.D. New York
ALISSA CALANDRINO on behalf of her minor child, J.C., Plaintiff,
FARMINGDALE UNION FREE SCHOOL DISTRICT, et al., Defendants.
J. FEUERSTEIN, UNITED STATES DISTRICT JUDGE
before the Court is the Report and Recommendation of the
Honorable Anne Y. Shields, United States Magistrate Judge,
dated December 18, 2019 (“the Report”), (1)
recommending that defendants' motion to dismiss pursuant
to Rule 12 of the Federal Rules of Civil Procedure be
granted; and (2) advising, inter alia, (a) that
“[a]ny written objections to th[e] Report . . . must be
filed . . . within fourteen (14) days of filing of th[e]
[R]eport, ” (Report at 11) (citing 28 U.S.C. §
636(b)(1) and Fed.R.Civ.P. 6(a), 72(b)), and (b) that
“[f]ailure to file objections within fourteen (14) days
will preclude further review of th[e] [R]eport . . . either
by the District Court or Court of Appeals.”
(Id.) (citing Thomas v. Arn, 474 U.S. 140,
145, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) and Caidor v.
Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008)). A
copy of the Report was served upon the parties via ECF on
December 18, 2019. (See Docket Entry
[“DE”] 35). No. party has filed any timely
objections to the Report, nor sought an extension of time to
do so. For the reasons set forth below, the 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, 474
U.S. at 150, 106 S.Ct. 466. 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 Mario v.
P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002); Small v. Sec'y of Health & Human
Servs., 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, 517 F.3d at 604.
the waiver rule is non-jurisdictional and, thus, the Court
may excuse a violation thereof “in the interests of
justice.” Neita v. Precision Pipeline Sols.,
768 Fed.Appx. 12, 14 (2d Cir. Apr. 29, 2019) (summary order)
(citing United States v. Male Juvenile (95-CR-1074),
121 F.3d 34, 39 (2d Cir. 1997)); 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 Neita, 768 Fed.Appx.
Review of Report
no party has filed any timely objections to the 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. 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
reasons set forth above, the Report is accepted in its
entirety and, for the reasons set forth therein,
defendants' motion to dismiss pursuant to Rule 12 of the
Federal Rules of Civil Procedure is granted, plaintiff's
federal law claims against defendants are dismissed in their
entirety for lack of subject matter jurisdiction, and
plaintiff's state law claims are dismissed without
prejudice pursuant to 28 U.S.C. § 1367(c)(3). Pursuant
to 28 U.S.C. § 1367(d), the statute of limitations for
any state law claims timely filed in this Court is tolled for
a period of thirty (30) days after the date of
this order unless a longer tolling period is
otherwise provided under state law. See ...