Condoleo v. Guangzhou Jindo Container Co., 15-CV-4677 (SJF)(ARL)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: FEUERSTEIN, District Judge
• Citation: 427 F.Supp.3d 316
• Parties: Alberto CONDOLEO and Anna Condoleo, Plaintiffs, v. GUANGZHOU JINDO CONTAINER CO., LTD., Bridgehead Container Services Ltd., APL Co. PTE Ltd., and APL Ltd. USA, Defendants.
• Decision Date: 21 June 2019
• Docket Number: 15-CV-4677 (SJF)(ARL)

427 F.Supp.3d 316

Alberto CONDOLEO and Anna Condoleo, Plaintiffs,
v.
GUANGZHOU JINDO CONTAINER CO., LTD., Bridgehead Container Services Ltd., APL Co. PTE Ltd., and APL Ltd. USA, Defendants.

15-CV-4677 (SJF)(ARL)

United States District Court, E.D. New York.

Signed June 21, 2019

ORDER

FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiffs Alberto Condoleo and Anna Condoleo (collectively, "plaintiffs") to the Report and Recommendation of the Honorable Arlene R. Lindsay, United States Magistrate Judge, dated April 23, 2019 ("the Report"), recommending that the motions of defendant Bridgehead Container Services Ltd. ("Bridgehead") and defendants APL Co. PTE Ltd. and American President Lines, Ltd., i/s/h as APL Ltd. USA (collectively, "APL" or "the APL Defendants") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted. For the reasons set forth below, plaintiffs' objections are overruled and the Report is accepted in its entirety.

I. Discussion

A. Standard of Review

Any party may serve and file written objections to a report and recommendation of a magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy thereof. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(2). Any portion of such a report and recommendation to which a timely objection has

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been made is reviewed de novo . 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn , 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no specific, timely objection has been made, the district judge need only be satisfied that there is no clear error apparent on the face of the record. See Fed. R. Civ. P. 72(b) ; Spence v. Superintendent, Great Meadow Corr. Facility , 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed to determine whether the magistrate judge committed "plain error.")

However, general objections, or "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review." Owusu v. New York State Ins. , 655 F. Supp. 2d 308, 312-13 (S.D.N.Y. 2009) (quotations, alterations and citation omitted); see also Trivedi v. New York State Unified Court Sys. Office of Court Admin. , 818 F. Supp. 2d 712, 726 (S.D.N.Y. 2011), aff'd sub nom Seck v. Office of Court Admin. , 582 F. App'x 47 (2d Cir. Nov. 6, 2014) ("[W]hen a party makes only conclusory or general objections [ ] the Court will review the Report strictly for clear error.[ ] Objections to a Report must be specific and clearly aimed at particular findings in the magistrate judge's proposal." (quotations, alterations and citation omitted)). Any portion of a report and recommendation to which no specific timely objection is made, or to which only general, conclusory or perfunctory objections are made, is reviewed only for clear error. Owusu , 655 F. Supp. 2d at 312-13 ; see also Bassett v. Electronic Arts, Inc. , 93 F. Supp. 3d 95, 100-01 (E.D.N.Y. 2015).

Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b). Although a district judge may "receive further evidence" upon de novo review, 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3), "[c]ourts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation absent a compelling justification for failure to present such evidence to the magistrate judge." New York City Dist. Council of Carpenters Pension Fund v. Forde , 341 F. Supp. 3d 334, 338 (S.D.N.Y. 2018), appeal withdrawn , No. 18-3693, 2019 WL 1222841 (2d Cir. Feb. 1, 2019) (quotations and citation omitted); see also Hynes v. Squillace , 143 F.3d 653, 656 (2d Cir. 1998) ("Considerations of efficiency and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's consideration, and we have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review.")

B. Objections

Initially, plaintiffs' general objection "to the entirety of the Magistrate's analysis, discussion, findings, conclusions, decisions, and recommendations," and request that "the Court reject same in their entirety, especially the recommendations, and especially the dismissal of the claims and, instead, rule in Plaintiffs' favor regarding the summary judgment motion [sic], and find that sufficient questions of fact exists, so as to warrant a trial of this action, all in accordance with all the papers [they] submitted in opposition to the summary judgment

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motions[,]" (Plaintiffs' Objections to the Report ["Plf. Obj."] at 2), are insufficient to invoke de novo review. See, e.g. Colvin v. Berryhill , 734 F. App'x 756, 758 (2d Cir. May 18, 2018) (summary order) (holding that a general objection to a magistrate judge's report "merely referring the court to previously filed papers or arguments does not constitute an adequate objection under [ ] Fed. R. Civ. P. 72(b)." (quotations, alterations and citations omitted)); Benitez v. Parmer , 654 F. App'x 502, 503 (2d Cir. June 30, 2016) (summary order) (holding that the plaintiff's general objection to the magistrate judge's report and recommendation, which merely asked the district court to review his opposition to the defendants' motion to dismiss, was insufficient to obtain de novo review). Similarly, plaintiffs' general objection to the Report's recommendation that the derivative claim of Anna Condoleo be dismissed, (see Plf. Obj. at 5), is insufficient to invoke de novo review. Accordingly, except for the specific objections set forth below, the remainder of the Report is reviewed only for clear error.

Plaintiffs contend, inter alia , that Magistrate Judge Lindsay erred: (i) in finding that they did not serve defendant Guangzhou Jindo Container Co., Ltd. ("Guangzhou") with process in this action,¹ (Plf. Obj. at 1); (ii) in omitting from the statement of facts in the Report "the defective condition of the critical and subject door hinge," (id. ), i.e. , the hinge of the header beam on the subject container that purportedly "fractured without warning," (Plaintiffs' Memorandum of Law in Opposition to Defendants' Respective Motions for Summary Judgment ["Plf. Opp."] at 2); (iii) in finding that plaintiffs' breach of implied warranty claim against Bridgehead is time-barred based upon the date that APL took possession of the container, since Bridgehead, itself, "never established the date of delivery," (Plf. Obj. at 3); (iv) in purportedly finding that the APL Defendants "are not liable for breach of implied warranty because they are lessors," (id. at 3); and (v) in finding that the doctrine of res ipsa loquitur does not apply to the APL Defendants "because the container was out of their exclusive control for three (3) days," (id. at 4), since "the requirement of exclusive control is not a rigid concept" and the alleged defect "was due to the manner in which the metal was forged or cast[,] ... [and] logic and reason dictate that we connect any potential damage-causing conduct to the specific defect at issue." (Id. at 4).

In addition, plaintiffs submit a purported "revised report" of their expert, David P. Pope (the "Pope Report"), that they contend "is now a sworn report," (Plf. Obj. at 1) (emphasis omitted), because Magistrate Judge Lindsay excluded "the four-page unsworn letter" of Pope that plaintiffs submitted in opposition to the motions for summary judgment on the basis that it did not satisfy the admissibility requirements of Fed. R. Civ. P. 56(e) and, thus, constitutes inadmissible hearsay. (Report at 11). Plaintiffs contend, inter alia , that "[d]ue to a clerical error this sworn report was inadvertently submitted as an unsworn report in opposition to the summary judgment."² (Plf. Obj. at 1).

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1. Service of Process upon Guangzhou

In support of their assertion that Guangzhou was served with process, plaintiffs submit only an unsworn letter to their counsel from Legal Language Services ("LLS"), dated September 28, 2015, indicating, in relevant part, that "the Central Authority for China received your Hague Request ... on September 28, 2015."³ (Plf. Obj., Ex. B). Plaintiffs have not submitted any admissible evidence indicating that they attempted to effect service by a method provided in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Hague Convention"), art. 15, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163 Hague Convention, i.e. , that they transmitted a request for service, the summons and complaint and the service fee to the Ministry of Justice of China ("MOJ"), which is the designated Central Authority for China pursuant to Article 2 of the Hague Convention.⁴ Other than the...