Opinion
05 Civ. 2894 (KMW).
February 5, 2007
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action pursuant to 42 U.S.C. § 1983 after he was wounded in a nightclub shooting. By order dated September 30, 2005, this Court awarded default judgment against Defendant Club Large Runway Corp. ("Club Large") and referred the matter to Magistrate Judge Gabriel W. Gorenstein for an inquest into damages. Thereafter, Plaintiff settled the action with respect to all other Defendants.
Magistrate Judge Gorenstein granted Plaintiff multiple extensions of time — totaling more than eleven months — during which to present findings of fact and conclusions of law concerning damages, but Plaintiff failed to do so by the final deadline of October 31, 2006. Accordingly, by report and recommendation dated December 1, 2006 (the "Report"), Magistrate Judge Gorenstein recommended that the Court vacate the default judgment against Club Large.
The Report informed the parties that, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b), in conjunction with Rules 6(a) and 6(e), of the Federal Rules of Civil Procedure, they had ten days from service of the Report to serve and file any objections. The Report also informed parties of their opportunity to request an extension of time to file objections. Finally, the Report explicitly cautioned that failure to file timely objections would preclude appellate review.
No objections have been filed, and the time to object has expired. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993). The Second Circuit "ha[s] adopted the rule that failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision," Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); "[t]he Supreme Court upheld this practice, at least when the parties receive clear notice of the consequences of their failure to object," id. (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). Furthermore, the Court has reviewed the Report, and finds it to be well-reasoned and free of any "clear error on the face of the record." Fed.R.Civ.P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). The Court therefore accepts and adopts the Report.
Accordingly, the Court VACATES the default judgment against Defendant Club Large Runway Corp.
By February 23, 2007 , Plaintiff shall advise the Court whether he intends to pursue further action in this matter. Should Plaintiff fail to respond by that date, the Court will consider dismissing this action sua sponte for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (holding that district courts have inherent power to dismiss actions sua sponte for failure to prosecute).
SO ORDERED.