558 F.Supp.3d 73
S.D.N.Y.2021Background:
- Plaintiff Kelcey Deptula filed a diversity action on March 17, 2020 against Jonathan Rosen and Ceramica de Espana asserting six state-law claims: practicing medicine without a license, sexual battery, negligent infliction of emotional distress, fraud, breach of contract, and quantum meruit.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(2), (3), (5), and (6).
- Magistrate Judge Barbara C. Moses issued a Report and Recommendation on August 13, 2021 recommending that the motion be granted without prejudice under Rule 12(b)(5) for failure to effect proper service of process.
- The R&R informed the parties they had 14 days to object and warned that failure to do so would waive objections and appellate review.
- No party filed objections within the prescribed period; the Court found waiver but nevertheless conducted a de novo review.
- The District Court (Judge John P. Cronan) adopted the R&R in full and dismissed the action without prejudice for improper service of process.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper service of process (12(b)(5)) | Deptula maintained service was sufficient | Rosen argued service was not properly effected | Dismissal without prejudice for failure to effect proper service |
| Objections to the R&R; standard of review | No objections filed | No objections filed | Parties waived objections and appellate review; court nonetheless conducted de novo review and adopted the R&R |
| Other 12(b) grounds (jurisdiction, venue, merits) | Claims asserted on the merits | Defendants raised jurisdiction, venue, and merits defenses | Court resolved case on service ground only; other defenses not adjudicated |
Key Cases Cited
- United States v. Male Juvenile, 121 F.3d 34 (2d Cir. 1997) (de novo review required for contested portions of a magistrate judge’s report)
- Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163 (S.D.N.Y. 2003) (failure to object permits clear-error review of an R&R)
- Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992) (failure to timely object to an R&R ordinarily waives appellate review)
- Caidor v. Onondaga Cnty., 517 F.3d 601 (2d Cir. 2008) (same; party’s failure to object to R&R forfeits the right to appellate review)