Opinion
20-CV-9788 (VEC)
06-30-2022
EMERY MUKENDI WAFWANA & ASSOCIATES, P.C., and MOISE KAPANDA MUKENDI, as Executor for the Estate of Emery Mukendi Wafwana, Plaintiffs, v. DANIEL MENGARA, ELITE LAW FIRM, SCP, and EUGENIE ELANGA MONKANGO, Defendants, and EMERY MUKENDI WAFWANA & ASSOCIES, SCP, Defendant Intervenor.
ORDER ADOPTING REPORT & RECOMMENDATION
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE:
WHEREAS on January 5, 2021, the Undersigned referred this case to Magistrate Judge Parker for general pretrial and dispositive motions, including the preparation of reports and recommendations (“R&Rs”) on any dispositive motions, see Dkt. 21;
WHEREAS on September 24, 2021, Plaintiffs filed a Second Amended Complaint (“SAC”), see Dkt. 107;
WHEREAS Plaintiffs asserted causes of action under Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)), common law trademark infringement, and conversion against all Defendants; breach of care against Defendant Mengara; and tortious interference against Elite Law Firm and Monkango, see id.;
WHEREAS on October 28, 2021, Defendants Mengara and Wafwana & Associes moved to dismiss the SAC pursuant to Fed.R.Civ.P. 12(b)(1), (b)(2), and (b)(6), Dkt. 114, 117;
WHEREAS Defendants Elite Law Firm and Monkango have not been served with the SAC, see Dkt. 115;
WHEREAS on May 19, 2022, Judge Parker entered an R&R recommending that the Court grant Defendants' motion and dismiss the SAC in its entirety without prejudice, see Dkt. 124;
WHEREAS in the R&R, Judge Parker notified the parties that, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), they had fourteen days to file written objections to the R&R's findings, id. at 20;
WHEREAS Judge Parker further noted that failure to file objections would result in both the waiver of objections and the preclusion of appellate review, id.;
WHEREAS no party filed objections;
WHEREAS in reviewing an R&R, a district 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);
WHEREAS when, as here, no party objects to the R&R, the Court may accept the R&R provided that “there is no clear error on the face of the record,” Heredia v. Doe, 473 F.Supp.2d 462, 463 (S.D.N.Y. 2007) (quoting Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985)); see also Fed.R.Civ.P. 72(b) advisory committee's note;
WHEREAS an error is clear when the reviewing court is left with a “definite and firm conviction that a mistake has been committed,” see Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002) (quoting McAllister v. United States, 348 U.S. 19, 20 (1954)); and
WHEREAS careful review of the R&R reveals that there is no clear error;
IT IS HEREBY ORDERED that the R&R is adopted in full, Defendant's motion to dismiss is granted, and this case is DISMISSED without prejudice.
Because the R&R gave the parties adequate warning, see Dkt.124 at 20, the failure to object to the R&R precludes appellate review of this decision, see 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.”). Because appellate review is precluded, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, permission to proceed in forma pauperis for purposes of appeal is denied.
The Clerk of Court is respectfully directed to terminate the open motions at docket entries 114 and 117.
SO ORDERED.