Edwards v. Janssen Pharmaceuticals, Inc. et al, No. 7:2017cv00918 - Document 47 (S.D.N.Y. 2018)

Court Description: ORDER AND OPINION re: 46 REPORT AND RECOMMENDATIONS and 41 MOTION to Dismiss for Lack of Prosecution . filed by Johnson & Johnson Pharmaceutical Research & Development L.L.C., Johnson & Johnson, Inc., Janssen Pharmaceuticals, Inc. The Court adopts MJ Smith's R & R in its entirety. Plaintiff's complaint is dismissed with prejudice. The Clerk of Court is directed to terminate the motion (ECF No. 41), to terminate the case, to mail a copy of this Opinion to Plaintiff, and to show proof of service on the docket. Mail to: Clint Edwards, 204 Melville Drive, New Windsor, NY 12553. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 5/31/18) (yv)

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Edwards v. Janssen Pharmaceuticals, Inc. et al Doc. 47 U,SDC SDNY DOCUMENT I ;I ~~~~~,l~ONICALLY FILED I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK '' iEFfLSD: 5[:',J~19 i CLINT EDWARDS, Plaintiff, -against17-cv-0918 (NSR)(PED) JANSSEN PHARMACEUTICALS INC. a/aka/ ORTHO-MCNEIL JANSSEN PHARMACEUTICALS INC., JOHNSON & JOHNSON PHARMACEUTICAL RESEARCH & DEVELOPMENT L.L.C., ORDER AND OPINION Defendant. NELSONS. ROMAN, United States District Judge: Plaintiff Clint Edwards ("Plaintiff') commenced this action, in state comt, Orange County Supreme Court, asserting claims sounding in, inter alia, negligence, lack of informed consent and product's liability as against Defendants. Pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, Defendants removed the action to this Court based on diversity jurisdiction. On March 22, 2017, this Comt issued an Order of Reference referring this matter to Magistrate Judge Lisa M. Smith ("MJ Smith") for general pretrial supervision. (ECF No. 22.) Thereafter, on April 10, 2018, the Court amended its Order of Reference to include dispositive motions. (ECF No. 40.) Now before the Court is MJ Smith's Report and Recommendation ("R & R") recommending that the Court dismiss Plaintiffs complaint for want of prosecution. (See Docket No. 41.) For the following reasons, the Court adopts MJ Smith's R & R in its entirety, and Plaintiffs complaint is DISMISSED. PROCEDURAL BACKGROUND The relevant procedural background is set forth the R & R. In substance, in February 2018, Plaintiffs counsel asked to be removed from the case due to irreconcilable differences with his 1 Dockets.Justia.com client. (ECF No. 35.) By decision and order, dated February 6, 2018, the Court granted movant's application and stayed the proceedings for forty-five (45) days to allow Plaintiff to obtain new counsel. By letter dated February 6, 2018 and received by the Court February 9, 2018, Plaintiff informed the Court that he never intended or authorized his former attorney to file an action. (ECF No. 37.) By Order, dated February 12, 2018, the Comt afforded Plaintiff the opportunity to retain new counsel, proceed prose or discontinue the action. (ECF No. 38.) Following Plaintiffs failure to appear at a scheduled conference, Defendants moved to dismiss the complaint for failure to prosecute. (ECF No. 41.) STANDARD OF REVIEW A magistrate judge may "hear a pretrial matter dispositive of a claim or defense" if so designated by a district comt. See Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l)(B). In such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate, proposed findings of fact." Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l). Where a magistrate judge issues a report and recommendation, [w]ithin fourteen days after being served with a copy, any patty may serve and file wrilten objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court 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)(l); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o accept the repo1t and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)(quoting Nelsonv. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any fi.uther judicial 2 review of the magistrate's decision.") (quoting Small v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir. 1989)); see also Fed. R. Civ. P. 72 advisory committee note (1983 Addition, Subdivision (b)) ("When no timely objection is filed, the comt need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). To the extent a paity makes specific objections to an R & R, those paits must be reviewed de nova. 28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In a de nova review, a district court must consider the "[r]ep01t, the record, applicable legal authorities, along with Plaintiffs and Defendant's objections and replies." Diaz v. Girdich, No. 04-cv-5061, 2007 U.S. Dist. LEXIS 4592, at *2 (S.D.N.Y. Jan. 23, 2007) (internal quotation marks omitted). But to the extent "a petition makes only general and conclusory objections ... or simply reiterates the original arguments, the district court will review the repo1t and recommendations strictly for clear error." Harris v. Burge, No. 04-cv-5066, 2008 U.S. Dist. LEXIS 22981, at *18 (S.D.N.Y. Mar. 25, 2008). The distinction turns on the whether a litigant's claims are "clearly aimed at paiticular findings in the magistrate's proposal" or are a means to take a "'second bite at the apple' by simply relitigating a prior argument." Singleton v. Davis, No. 03cv-1446, 2007 U.S. Dist. LEXIS 3958, at *2 (S.D.N.Y. Jan. 18, 2007) (citation omitted). DISCUSSION Plaintiff did not timely object to the R & R. Thus, the Court reviews the R & R for clear error. In recommending dismissal of Plaintiffs complaint for failure to prosecute, MJ Smith weighed the five factors enumerated in Fed. R. Civ. P. 41(b). Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014). Although the court also weighed Plaintiffs pro se status, it nonetheless determined, inter alia, that Plaintiff intentionally abandoned the lawsuit. The Court also noted that Plaintiffs failure to affirmatively prosecute the action would prejudice the Defendants' ability to 3 adequately defend against the claims asse1ted. After careful review of the record, the Court finds no clear error. The Comt adopts the R & R, and the complaint is dismissed for failure to prosecute. CONCLUSION For the reasons stated above, the Court adopts MJ Smith's R & R in its entirety. Plaintiffs complaint is dismissed with prejudice. The Clerk of Comt is directed to terminate the motion (ECF No. 41 ), to terminate the case, to mail a copy of this Opinion to Plaintiff, and to show proof of service on the docket. Dated: May 31, 2018 White Plains, New York SO ORDERED: ~-0-M-A-,N Mail to: Clint Edwards 20'-\ Melville Drive New Windsor, NY 12553 4

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