1:23-cv-05776
S.D.N.Y.Nov 18, 2024Background
- Plaintiff Roxana Berenice Castro Ajmad initiated an action in July 2023 against Dwight Crescioni, Wellsure Corporation, Ranjit Hewavitarne, and FCB Commodities LLC.
- The case was initially overseen by Judge Vernon S. Broderick, then referred to Magistrate Judge James L. Cott for general pretrial supervision before reassignment to Judge Margaret M. Garnett.
- Magistrate Judge Cott recommended dismissal without prejudice against three defendants (Dwight Crescioni, Wellsure Corporation, and Ranjit Hewavitarne) due to Plaintiff's failure to prosecute, and required Plaintiff to address why claims against FCB Commodities LLC should not also be dismissed.
- Plaintiff did not object to the recommended dismissals of the first three defendants but argued against dismissal of claims against FCB Commodities LLC, noting efforts to conserve judicial resources while attempting service on other defendants.
- After submitting evidence of service on FCB Commodities LLC and ultimately filing a motion for default judgment, Plaintiff cured her failure to prosecute as to FCB Commodities LLC.
- The Court adopted the dismissal recommendations for three defendants, but rejected as moot the recommendation concerning FCB Commodities LLC, given Plaintiff's subsequent prosecution of those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal for failure to prosecute (three Defs) | Castro did not object to dismissals for lack of prosecution | No objection or appearance | Dismissed without prejudice for failure to prosecute |
| Dismissal for failure to prosecute (FCB Comm.) | Delay was to conserve resources pending service on others; later filed default motion | No objection or appearance | Dismissal rejected as moot; claim continues |
| Objection waiver for Report portions not challenged | No objection raised | Not applicable | Waiver enforced; recommendations adopted |
| Default judgment motion as to FCB Comm. & Tyrone Crescioni | Filed default judgment following affirmation of service | Not opposed (no answer/appearance) | Motion referred to magistrate for further evaluation |
Key Cases Cited
- Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992) (failure to object timely to a magistrate judge's report waives right to appellate review)
- Caidor v. Onondaga County, 517 F.3d 601 (2d Cir. 2008) (same; waiver of objections to magistrate recommendations)