Summary
In Bank v. Alliance Health Networks, LLC, Plaintiff alleged that he had received two prerecorded calls to his residential telephone number, but did not allege that the calls were made "by, or on behalf of, or with the authorization of, [the defendants]."
Summary of this case from Bank, v. Spark Energy, LLCOpinion
18-CV-6457 (MKB) (ST)
02-06-2020
TODD C. BANK, on behalf of himself and all other similarly situated individuals, Plaintiff, v. SIMPLE HEALTH PLANS, LLC, SIMPLE INSURANCE LEADS, LLC, STEVEN J. DORFMAN, and MATTHEW E. SPIEWAK, Defendants.
ORDER :
Plaintiff Todd C. Bank commenced the above-captioned action on behalf of himself and all other similarly situated individuals against Simple Health Plans, LLC, Simple Insurance Leads, LLC (collectively, the "Corporate Defendants"), Stephen J. Dorfman, and Matthew E. Spiewak (the "Individual Defendants") on November 13, 2018. (Compl. ¶¶ 2, 5-9, 41, Docket Entry No. 1.) Plaintiff alleges that Defendants sent him and thousands of others unsolicited text messages in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. On April 10, 2019, Plaintiff moved for default judgment against the Individual Defendants seeking (i) an order that the Individual Defendants are liable for violating the TCPA ("Motion for Default Judgment"), (Mot. for Def. J. 19, Docket Entry No. 14), and (ii) leave to take discovery in support of his anticipated motion for class certification, (id. at 17-19). By order dated April 11, 2019, the Court referred the Motion for Default Judgment to Magistrate Judge Steven L. Tiscione for a report and recommendation. (Order dated Apr. 11, 2019.) By letter dated April 25, 2019, Dorfman, proceeding pro se, filed a motion to strike the Clerk of Court's entry of default and Plaintiff's Motion for Default Judgment on the grounds that this action should be stayed pursuant to a Notice of Receivership issued by the Honorable Judge Darrin P. Gayles in the United States District Court for the Southern District of Florida ("April 25, 2019 Letter"). (Apr. 25, 2019 Letter, Docket Entry No. 15.)
Because Plaintiff's Motion for Default Judgment is not consecutively paginated, the Court refers to the page numbers assigned by the Electronic Case Filing ("ECF") system.
By Report and Recommendation dated December 12, 2019, (the "R&R), Judge Tiscione recommends that the Court deny the motion to stay the action against the Individual Defendants because the Notice of Receivership and Stay issued by Judge Gayles does not apply to the Individual Defendants. (R&R at 9.) Judge Tiscione explains that Judge Gayles intentionally excluded the Individual Defendants by limiting the stay to the "Receivership Entities" and therefore did not intend for the stay to enjoin actions against them. (See id. at 5-6.) In addition, Judge Tiscione recommends that the Court deny Plaintiff's Motion for Default Judgment against the Individual Defendants without prejudice, and that Plaintiff be granted leave to file an amended complaint. (Id. at 17.) No party has objected to the R&R and the time for doing so has expired.
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 Markets, Inc., 313 F. 3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health & Human Servs., 892 F. 2d 15, 16 (2d Cir. 1989) (per curiam))); see also Sepe v. N.Y. State Ins. Fund, 466 F. App'x 49, 50 (2d Cir. 2012) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 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))); 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." (citations omitted)).
The Court has reviewed the unopposed R&R and, finding no clear error, adopts the R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Accordingly, the Court denies Dorfman's motion to stay and Plaintiff's Motion for Default Judgment against the Individual Defendants without prejudice, and grants Plaintiff leave to file an amended complaint. Dated: February 6, 2020
Brooklyn, New York
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge