Summary
finding that allegations that a "car had serious engine problems and emitted hot air, choking smoke, and a foul odor" made it "reasonable to infer that the car was not fit for its ordinary purpose"
Summary of this case from Berger v. Mazda Motor of Am., Inc.Opinion
08-CV-4798 (ARR) (CLP).
February 16, 2011
OPINION ORDER
Plaintiff William Enobakhare commenced this action on November 26, 2008 against defendant Carpoint, LLC, alleging inter alia violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., the Federal Motor Vehicle Information and Cost Savings Act, 49 U.S.C. § 32701, et seq., the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq., the Truth-in-Lending Act, 15 U.S.C. § 1601, et.seq., and Section 349 of the New York General Business Law. The Clerk of Court entered a notation of default against defendant on May 28, 2010. Pursuant to a referral dated June 1, 2010, a Report Recommendation ("Report") of United States Magistrate Judge Cheryl L. Pollack, dated January 10, 2011, recommended that "the default against defendant Carpoint be vacated and the case dismissed without prejudice for lack of subject matter jurisdiction over plaintiff's federal and state law claims, allowing plaintiff to proceed in state court." (Report at 25.) No objections have been filed. Accordingly, the court has reviewed the Report for clear error on the face of the record. See Advisory Comm. Notes to Fed.R.Civ.P. 72(b); accord Edwards v. Town of Huntington, No. 05 Civ. 339 (NGG) (AKT), 2007 U.S. Dist. LEXIS 50074, at *6 (E.D.N.Y. July 11, 2007); McKoy v. Henderson, No. 05 Civ. 1535 (DAB), 2007 U.S. Dist. LEXIS 15673, at *1 (S.D.N.Y. March 5, 2007). Having reviewed the record, I find no clear error. I hereby adopt the Report in its entirety, as the opinion of the court pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the default against defendant is vacated and the case is dismissed without prejudice for lack of subject matter jurisdiction. The Clerk of the Court is directed to enter judgment accordingly.
SO ORDERED.
Dated: February 16, 2011 Brooklyn, New York