“As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))
How later courts described this case
- “As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))
- “[A] party waives appellate review of a decision in a magistrate judge’s [r]eport and [r]ecommendation if the party fails to file timely objections designating the particular issue.” (first citing Cephas, 328 F.3d at 107; and then citing Mario, 313 F.3d at 766)
- listing five factors a court must consider when weighing dismissal for failure to prosecute
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------
NATIONSTAR MORTGAGE LLC doing business
as MR. COOPER,
ORDER
Plaintiff, 18-CV-6752 (MKB) (LB)
v.
WELLINGTON RIVERA, PROPERTY ASSET
MANAGEMENT NY INC., STATE OF NEW
YORK, NEW YORK CITY DEPARTMENT OF
FINANCE, CITY OF NEW YORK
ENVIRONMENTAL CONTROL BOARD, CITY
OF NEW YORK PARKING VIOLATIONS
BUREAU, CITY OF NEW YORK TRANSIT
ADJUDICATION BUREAU, and JOHN DOE,
Defendants.
---------------------------------------------------------------
MARGO K. BRODIE, United States District Judge:
Plaintiff Nationstar Mortgage, LLC, doing business as Mr. Cooper, commenced the
above-captioned foreclosure action on November 29, 2018, against Defendants Wellington
Rivera, Property Asset Management NY Inc., the State of New York, the New York City
Department of Finance, the City of New York Environmental Control Board, the City of New
York Parking Violations Bureau, the City of New York Transit Adjudication Bureau, and one or
more John Doe defendants. (Compl. 1–3, Docket Entry No. 1.) Plaintiff alleges that it holds the
mortgage and note on a property located at 762 East 83rd Street, Brooklyn, NY 11236, and that
Wellington Rivera has not paid the mortgage. (Id. at 5.) Plaintiff further alleges that the other
named Defendants “have, or claim to have, some interest in or lien upon” the property. (Id. at 6.)
Defendants did not answer or otherwise respond to the Complaint. On May 17, 2019, the
Court entered a certificate of default. (Clerk’s Entry of Default, Docket Entry No. 28.) Plaintiff
took no further action. By order dated July 24, 2020, Magistrate Judge Lois Bloom noted that
Plaintiff had failed to prosecute its case and directed Plaintiff to “take appropriate action against
[D]efendants by August 3, 2020.” (Order dated July 24, 2020.) Plaintiff made no further filings.
By report and recommendation dated September 3, 2020, Judge Bloom sua sponte
recommended that the Court dismiss the action pursuant to Rule 41(b) of the Federal Rules of
Civil Procedure (the “R&R”). (R&R 2–3, Docket Entry No. 29 (citing Lewis v. Rawson, 564
F.3d 569, 575 (2d Cir. 2009) (listing five factors a court must consider when weighing dismissal
for failure to prosecute)). Judge Bloom cautioned Plaintiff that “[f]ailure to file a timely
objection [within fourteen (14) days] to [the R&R] generally waives any further judicial review.”
(Id. at 3–4 (first citing Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42 (2d
Cir. 2002); then citing Small v. Sec’y of Health & Hum. Servs., 892 F.2d 15 (2d Cir. 1989); and
then citing Thomas v. Arn, 474 U.S. 140 (1985)).) No objections to the R&R have been filed and
the time for doing so has passed.
A district court reviewing a magistrate judge’s recommended ruling “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). “Where parties receive clear notice of the consequences, failure to
timely object to a magistrate’s report and recommendation operates as a waiver of further
judicial review of the magistrate’s decision.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir.
2015) (quoting Mario v. P&C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); see also
Almonte v. Suffolk Cnty., 531 F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to
object to any purported error or omission in a magistrate judge’s report waives further judicial
review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Sepe v. N.Y.
State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (“Failure to object to a magistrate judge’s
report and recommendation within the prescribed time limit ‘may operate as a waiver of any
further judicial review of the decision, as long as the parties receive clear notice of the
consequences of their failure to object.’” (quoting United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir. 1997)) (citing Arn, 474 U.S. at 155)); Wagner & Wagner, LLP v. Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives
appellate review of a decision in a magistrate judge’s [r]eport and [r]ecommendation if the party
fails to file timely objections designating the particular issue.” (first citing Cephas, 328 F.3d at
107; and then citing Mario, 313 F.3d at 766)).
The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R
pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court dismisses the action pursuant to Rule
41(b) of the Federal Rules of Civil Procedure. The Clerk of Court is directed to close this case.
Dated: December 7, 2020
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge