Binn v. Bernstein
- Gregory Woods
- 1:19-cv-06122
- U.S. District Court · Southern District of New York
- 3
In Binn v. Bernstein, Judge Woods adopted the unchallenged recommendation, granted defendants’ motions to dismiss, denied a motion to strike as moot, and closed the case.
Moreton Binn and Marisol F, LLC’s claims were dismissed, and the defendants’ motions to dismiss were granted. Richard Abbe’s motion to strike was denied as moot, and the case was closed.
What happened
In Binn v. Bernstein, Moreton Binn and Marisol F, LLC sued derivatively on behalf of Xpresspa Group, Inc. The magistrate judge recommended dismissing the plaintiffs’ claims with prejudice and without leave to amend.
The plaintiffs did not object by the extended deadline. Their later request to dismiss the case without conceding the report’s findings was denied and was not treated as an objection.
Judge Gregory H. Woods found no clear error, adopted the report and recommendation in full, granted the defendants’ motions to dismiss, denied Richard Abbe’s motion to strike as moot, and directed the Clerk to close the case.
The detailed version
- Binn v. Bernstein · No. 1:19-cv-06122
- Gregory Woods
- Aug. 6, 2020
Background
Moreton Binn and Marisol F, LLC brought claims derivatively on behalf of Xpresspa Group, Inc., against Bruce T. Bernstein, Richard K. Abbe, Andrew R. Heyer, Salvatore Giardana, Brian Daly, Rockmore Investment Master Fund, L.P., and B3D, LLC. Xpresspa Group, Inc. was named as the nominal defendant. The opinion does not describe the underlying claims.
Report and recommendation
On July 13, 2020, Magistrate Judge Cave recommended that the plaintiffs’ claims be dismissed with prejudice and without leave to amend. Judge Cave also recommended denying Richard Abbe’s motion to strike as moot. The deadline for objections was extended to August 3, 2020, at the plaintiffs’ request, but the court received no objections by that deadline.
On August 4, 2020, the plaintiffs asked for dismissal under Federal Rule of Civil Procedure 41(a)(2), while stating that they did not concede any findings or recommendations in the report. The court denied that request the same day. The court concluded that the request was not an objection, was filed after the deadline, and was not specific or substantive enough to require a fresh review of the disputed portions of the report.
Court’s ruling
Because there were no effective objections, Judge Gregory H. Woods reviewed the report and recommendation for clear error, meaning an obvious mistake apparent from the record. The court found no clear error and adopted the report and recommendation in its entirety. Accordingly, the defendants’ motions to dismiss were granted. Richard Abbe’s motion to strike was denied as moot. The Clerk was directed to terminate the motions and close the case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.