Summary
noting that under U.C.C. § 2-207, "[w]hen the parties are two merchants, additional terms [in the accepting party's form] become part of a contract unless: ' the offer expressly limits acceptance to the terms of the offer; (b) they materially alter it; or (c) notification of objection to them has already been given or is given within a reasonable time after notice of them is received.'"
Summary of this case from Hardwire, LLC v. Zero Int'l, Inc.Opinion
No. 12-CV-2415 (FB) (JO)
03-14-2014
BOUNTY FRESH, LLC, Plaintiff, v. J NY PRODUCE, INC., and CHANG Y. JOON, Defendants.
For the Plaintiff: JONATHAN SCOTT BODNER, ESQ. Ruskin Moscou Faltichek, P.C. R. JASON READ, ESQ. Rynn & Janowsky, LLP
MEMORANDUM AND
AMENDED ORDER
Appearances:
For the Plaintiff:
JONATHAN SCOTT BODNER, ESQ.
Ruskin Moscou Faltichek, P.C.
R. JASON READ, ESQ.
Rynn & Janowsky, LLP
BLOCK, Senior District Judge:
On July 17, 2013, Magistrate Judge James Orenstein issued a Report and Recommendation ("R&R") recommending that plaintiff's motion for default judgment be granted and that judgment be entered against both defendants jointly and severally in the amount of $66,927.16.
The R&R states that "[a]ny objections to this Report and Recommendation must be filed no later than August 2, 2013. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order." R&R at 12. A copy of the R&R was served on defendants at their last known address on July 18, 2013. To date, no objections have been filed.
Where, as here, clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R & R without de novo review. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).
As no error appears on the face of Magistrate Judge Orenstein's R&R, the Court adopts it without de novo review. However, the Court updates Magistrate Judge Orenstein's calculation of prejudgment interest from $11,557.16 to $16,818.64 as of March 14, 2014. Accordingly, the Court directs the Clerk to enter judgment against defendants, J NY Produce, Inc., and Chang Y. Joon, on March 14, 2014, in favor of plaintiff in the amount of $72,188.64. Post-judgment interest shall accrue at the statutory rate. See 28 U.S.C. 1961.
SO ORDERED.
________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York March 14, 2014