Opinion
20-CV-1876 (WFK)(TAM)
03-22-2022
BRUCE E. KATZ, Plaintiff, v. DALE PHARMACY & SURGICAL, INC., Defendant.
ORDER
WILLIAM F. KUNTZ, II, UNITED STATES DISTRICT JUDGE:
On March 2, 2022, Magistrate Judge Taryn A. Merkl issued a Report and Recommendation (“R&R”) in the above-captioned action. ECF No. 30. The R&R recommends the Court deny Defendant's motion to dismiss the Complaint, stating in relevant part:
As an initial matter, Defendant's contention that a rejected Rule 68 offer of judgment makes Plaintiff's case moot is wholly without merit.... As Plaintiff points out, the United States Supreme Court has expressly held that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case ....” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 165 (2016), as revised (Feb. 9, 2016); (Pl.'s Resp., ECF No. 19-1, at 3-4). ....
Plaintiff has plausibly alleged that there was no established business relationship between the parties.... Accordingly, Plaintiff has sufficiently stated a claim under the TCPA, and the Court therefore recommends denying Defendant's Rule 12(b)(6) motion. ....
[T]he Court finds that it would be premature to dismiss Plaintiff's class action allegations, particularly given that no motion for class certification has been filed.... The Court respectfully recommends denying Defendant's motion to dismiss Plaintiff's class action allegations at this stage, “without prejudice to its right to oppose class certification on these same grounds.” Cohen, 686 F.Supp.2d at 324; cf. Travis v. Navient Corp., 460 F.Supp.3d 269, 286 (E.D.N.Y. 2020) (“Since it would be premature to decide this fact-specific argument at this juncture, [Defendant]'s motion to strike [Plaintiff's] class allegations is denied. [Defendant] may raise these arguments if [Plaintiff] moves for class certification pursuant to Federal Rule of Civil Procedure 23.”).
The parties did not file any objections to the R&R, which were due by Wednesday, March 16, 2022. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2). The Court reviews an R&R for clear error when no objections have been filed. See Covey v. Simonton, 481 F.Supp.2d 224, 226 (E.D.N.Y. 2007) (Garaufis, J.). The Court finds no such error here. The Court therefore adopts the R&R in its entirety and DENIES the Defendant's motion to dismiss at ECF No. 18.
SO ORDERED.