Opinion
Case No. 02-CV-6205 (FB) (RML).
August 22, 2007
For the Plaintiff: DANIEL MELUCCI, ESQ., Melucci, Celauro Sklar LLP, New York, NY.
For Defendant Generac Power Systems, Inc.: WILLIAM F. DAHILL, ESQ., Woolmuth Maher Deutsch LLP, New York, NY.
RODDY W. ROGAHN, ESQ., Generac Power Systems, Inc., Waukesha, WI.
For Defendants Allegheny Energy Services, Inc. and Allegheny Energy, Inc.:, PAUL M. HELLEGERS, ESQ., Menaker Herrmann LLP, New York, NY.
MEMORANDUM AND ORDER
By Memorandum and Order dated November 18, 2004, familiarity with which is presumed, the Court dismissed plaintiff's amended complaint with prejudice. See Utility Metal Research, Inc. v. Generac Power Sys., Inc., 2004 WL 2613993 (E.D.N.Y. Nov 18, 2004). By Summary Order dated May 18, 2006, the Second Circuit Court of Appeals "vacate[d] so much of the judgment as dismissed [plaintiff's] claims for breach of contract and breach of warranty, and remand[ed] for further proceedings on those claims." Utility Metal Research, Inc. v. Generac Power Sys., Inc., 179 Fed. Appx. 795, 797 (2d Cir. 2006). The case proceeded to discovery before Magistrate Judge Robert M. Levy.
On May 30, 2007, Magistrate Judge Levy issued a Report and Recommendation ("R R") recommending that the action be dismissed for lack of prosecution: Specifically, for plaintiff's failure to produce "requested documents supporting [its] damages claim" even after two warnings "that failure to produce this information would likely result in a recommendation that this case be dismissed." Electronic Docket Entry dated May 30, 2007 (R R). The R R states that "[a]ny objections to this [R R] must be filed with the Clerk of the Court . . . within ten (10) business days," and that" [f]ailure to file objections within the specified time period waives the right to appeal the district court's order." Id. Notice of the R R was electronically mailed to plaintiff's counsel on the same day. See id. (Notice of Electronic Filing). To date, no objections have been filed.
Where, as here, clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R R without de novo review. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); 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."). The Court will excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).
As no error appears on the face of the Magistrate Judge Levy's R R, the Court adopts it without de novo review. The Clerk is directed to close the case.
SO ORDERED.