Opinion
No. 05 Civ. 5000 (RMB) (KNF).
February 3, 2006
ORDER
I. Background
On May 27, 2005, Orix Financial Services, Inc. ("Plaintiff") filed a complaint against Donald G. Nichols and Carelun Lu Nichols ("Defendants") seeking $312,870.73 in damages for defaulting on the terms of a guaranty. After Defendants failed to answer or otherwise appear, the Court entered a default judgment against Defendants. (Default Judgment, dated July 22, 2005.)
On January 13, 2006, United States Magistrate Judge Kevin Nathaniel Fox, to whom the matter had been referred to resolve the issue of damages, issued a Report and Recommendation ("Report"), finding that "plaintiff's submissions do not provide an adequate basis upon which the Court may conclude that the amount of damages sought is a sum certain" and recommending that Plaintiff "be directed to submit to the court such materials . . . necessary to establish the amount of damages" in this action. (Report at 4-5.)
The Report stated that "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections." (Report at 6.) To date, neither party has submitted objections. For the reasons set forth below, the Court adopts the Report in its entirety.
II. Standard of Review
The Court may adopt those portions of a magistrate judge's report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The court conducts a de novo review of those portions of the report to which objections have been made. Grassia 892 F.2d at 19; Pizarro, 776 F. Supp. at 817. Once objections have been received, a district court judge may accept, reject, or modify, in whole or part, the findings and recommendations of the magistrate. See, e.g., Deluca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994);Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
III. Analysis
The Court has conducted a review of the Report and applicable legal authorities and concludes that the Report is not clearly erroneous. Plaintiff should submit the additional materials requested by Judge Fox.
IV. Conclusion Order
The Court adopts the Report in its entirety and, for the reasons stated herein and therein, Plaintiff is directed to submit to Magistrate Judge Fox on or before February 10, 2006, the materials set forth in the Report. The matter is referred to Judge Fox for further proceedings.