Opinion
19-CV-10032 (PGG) (OTW)
01-18-2023
HENRY TUCKER, on behalf of himself and all other persons similarly situated, Plaintiff, v. ABERCROMBIE & FITCH CO., Defendant.
HONORABLE PAUL G. GARDEPHE
REPORT & RECOMMENDATION
ONA T. WANG, YORK UNITED STATES MAGISTRATE JUDGE
On July 20, 2020, Judge Gardephe stayed this action pending resolution of the appeals in Dominguez v. Banana Republic, LLC, No. 20-1559 (2d Cir. 2020) and its consolidated cases. (ECF 20). On June 2, 2022, the Second Circuit issued a decision affirming Judge Woods' dismissal of Plaintiffs' ADA claims on the basis that “Plaintiffs' conclusory, boilerplate allegations fail[ed] to establish standing.” Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 71 (2d Cir. 2022). On June 9, 2022, the parties filed a joint status letter. (ECF 26).
On December 5, 2022, I lifted the stay and issued an Order to Show Cause why I should not recommend dismissal of the case for lack of standing in light of the decisions in Dominguez v. Banana Republic, LLC, No. 20-1559 (2d. Cir. 2020) and Dominguez v. Taco Bell Corp., No. 1910172 (LGS), 2020 WL 3263258 (S.D.N.Y. June 17, 2020). Plaintiff was directed to respond by January 5, 2023. To date, Plaintiff has not filed a response on the docket. Accordingly, I recommend that the action be DISMISSED for lack of standing in light of the decisions in Dominguez v. Banana Republic, LLC, No. 20-1559 (2d Cir. 2020) and Dominguez v. Taco Bell Corp., No. 19-10172 (LGS), 2020 WL 3263258 (S.D.N.Y. June 17, 2020).
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul G. Gardephe, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AF L-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
SO ORDERED.