Opinion
14-CV-4427 (JFB)(AKT)
09-29-2015
NEOGENIX ONCOLOGY, INC., Plaintiff, v. PETER GORDON; MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO P.C.; NIXON PEABODY LLP; DANIEL J. SCHER; HARRY GURWITCH; AND MAIE LEWIS, AS REPRESENTATIVE OF THE ESTATE OF BRIAN LEWIS, Defendants.
ORDER :
Before the Court is a Report and Recommendation ("R&R") from Magistrate Judge Tomlinson, advising the Court to strike portions of Defendant Peter Gordon's Answer. The R&R instructed that any objections to the R&R be submitted within fourteen (14) days of service of the R&R. (See R&R, dated August 28, 2015, at 21.) The date for filing any objections has since expired, and plaintiff has not filed any objection to the R&R. For the reasons set forth below, the Court adopts the thorough and well-reasoned R&R in its entirety and strikes paragraphs 14 and 15 as well as Exhibit B of the original Answer filed by Defendant Peter Gordon.
Where there are no objections, the Court may adopt the report and recommendation without de novo review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) ("It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."); see also 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."); cf. 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo review after objections). However, because the failure to file timely objections is not jurisdictional, a district judge may still excuse the failure to object in a timely manner and exercise its discretion to decide the case on the merits to, for example, prevent plain error. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("[B]ecause the waiver rule is non jurisdictional, we 'may excuse the default in the interests of justice.'" (quoting Thomas, 474 U.S. at 155)).
Although plaintiff has waived any objection to the R&R and thus de novo review is not required, the Court has conducted a de novo review of the R&R in an abundance of caution and HEREBY ADOPTS the well-reasoned and thorough R&R in its entirety.
IT IS HEREBY ORDERED that Plaintiff's Rule 12(f) motion to strike paragraphs 14 and 15 as well as Exhibit B of the original Answer filed by Defendant Peter Gordon is granted.
SO ORDERED
/s/_________
JOSEPH F. BIANCO
UNITED STATES DISTRICT JUDGE
Dated: September 29, 2015
Central Islip, New York