Opinion
01 Civ. 3393 (DLC)
August 12, 2002
MEMORANDUM OPINION AND ORDER
On April 23, 2001, plaintiff James Beaumont ("Beaumont") filed a complaint against Citibank and Chase Bank ("Chase") alleging violations of Sections 1666 and 1666i of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1666 et seq., and TILA's implementing regulations ("Regulation Z"), 12 C.P.R. § 226.1 et seq. Defendant Citibank moved to dismiss Beaumont's complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. On March 28, 2002, the Court dismissed the claims against defendant Citibank on the ground that the plaintiff had failed to allege the existence of a "billing error" under Section 1666 and that Section 1666i did not create an independent cause of action. Beaumont v. Citibank (South Dakota) N.A., No. 01 Civ. 3393 (DLC), 2002 WL 483431, at *4, 7 (S.D.N.Y. Mar. 28, 2002) ("March 28 Opinion")
On June 25, 2002, Judge Pitman issued a Report and Recommendation ("Report") concerning Beaumont's summary judgment motion filed November 13, 2001, and Chase's January 18, 2002 cross-motion for summary judgment. Judge Pitman explained that after this Court issued the March 28 Opinion, Chase served its reply to plaintiff's opposition to its cross-motion. In that reply, Chase advanced for the first time the arguments that had been successfully asserted by Citibank. Judge Pitman allowed Chase to assert these arguments and provided the plaintiff with an opportunity to sur-reply. In a letter received by the Pro Se Office on June 21, 2002, Beaumont informed Judge Pitman that he did not intend to sur-reply because he agreed with this Court's March 28 Opinion and "concurr[ed] that it should apply equally to Chase Manhattan Bank." Judge Pitman thereafter issued the Report in which he concluded that the March 28 Opinion applies with equal force to Chase and recommended that the claims against Chase be dismissed for the reasons stated in the March 28 Opinion.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Having reviewed the Report, I find no facial errors in it. Judge Pitman's Report is adopted without modification. Accordingly, it is hereby
ORDERED that the plaintiff's claims against defendant Chase are dismissed for the reasons stated in the March 28 Opinion.
IT IS FURTHER ORDERED that the Clerk of Court shall close the case.
IT IS FURTHER ORDERED that the parties having made no objections to the Report, and the Report having advised the parties that failure to object will preclude appellate review of this Order, the parties have waived the right to appeal from this Order. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)
SO ORDERED.