Opinion
21-CV-10315 (LGS) (JLC)
01-06-2023
MOONBUG ENTERTAINMENT LTD., et ano., Plaintiffs, v. ALL NIGHT REVELRY STORE, et al., Defendants.
Honorable Lorna G. Schofield, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE
Moonbug Entertainment Ltd. and El Bebe Productions brought this action against 27 defendants alleging, inter alia, trademark infringement and counterfeiting of federally registered trademarks under the Lanham Act. On June 2, 2022, the Court granted a default judgment against 26 defendants and referred this case to me to conduct an inquest into damages. For the reasons below, I recommend that plaintiffs be awarded statutory damages in the amount of $50,000 against each of the 25 remaining defendants, for a total of $1,250,000, plus postjudgment interest.
Prior to the Court's granting a default judgment, plaintiffs filed a notice of voluntary dismissal against defendant NitreeBackdrop Store. Dkt. No. 26.
Since the filing of their Proposed Findings of Fact and Conclusions of Law, plaintiffs filed a notice of voluntary dismissal against defendant Yangzhou Bothwin Toys Co., Ltd. Dkt. No. 49.
I. BACKGROUND
A. Facts
The following facts, which are drawn from a review of plaintiffs' pleadings, motion papers, and submissions related to this inquest, are deemed established for the purpose of determining the damages to which it is entitled. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (internal citation omitted); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
Moonbug Entertainment Limited (“Moonbug”) is a private limited company and El Bebe Productions (“El Bebe”) is a limited company (collectively “plaintiffs”); both are organized under the laws of the United Kingdom and located therein. Complaint (“Compl.”) Dkt. No. 8, ¶¶ 5, 6. Plaintiffs own intellectual property assets for “Little Baby Bum,” a show and YouTube channel “featuring 3D animation videos of both traditional nursery rhymes and original children's songs.” Id. at iv, ¶ 9. Plaintiffs also develop “Little Baby Bum Products”-consumer goods bearing the Little Baby Bum Marks-which they sell in “major retailers, department stores, and online marketplaces.” Id. at iv, ¶ 12. El Bebe owns and has pending applications for additional federal trademarks for Little Baby Bum. Id. ¶¶ 14, 15.
Moonbug manufactures Little Baby Bum Products and then markets and promotes those products through “social media, the Little Baby Bum YouTube Channel, and other internet-based advertising.” Id. ¶ 17.
Due to marketing efforts, the quality of Little Baby Bum Products, as well as word-of-mouth buzz generated by consumers, “Little Baby Bum Marks and Little Baby Bum Products have become prominently placed in the minds of the public” and members of the public associate them “exclusively with Moonbug.” Id. ¶ 20. As a result of such associations, “Moonbug has acquired a valuable reputation and goodwill among the public.” Id. Express permission from Moonbug is required to “manufacture, import, export, advertise, offer for sale or sell any goods the Little Baby Bum, or use the Little Baby Bum Marks.” Id. ¶ 21.
Defendants are “individuals and/or businesses . . . located in China” who conduct business in the United States and other countries by selling wholesale and retail goods through online accounts that they have established on Alibaba and/or AliExpress. Id. ¶ 25. Alibaba and AliExpress are online marketplace platforms that allow third party merchants to advertise, distribute, offer for sale, sell, and ship their retail products, originating from China, directly to consumers worldwide, specifically consumers residing in the United States, including in New York. Id. ¶¶ 7, 22. Defendants sell or offer to sell counterfeit products. Id. ¶ 7.
Without Moonbug's authorization, each defendant offers for sale and sells counterfeit products through their user accounts and merchant storefronts and ships those counterfeit products to United States customers, including in New York. Id. ¶ 31. In their inquest submissions, plaintiffs included printouts from defendants' user accounts and merchant storefronts on Alibaba and AliExpress. Id., Ex. C. Each defendant has offered at least one type of infringing good for sale. Id. ¶ 35. Defendants' counterfeit Little Baby Products and Marks “are nearly indistinguishable from” plaintiffs', “only with minor variations that no ordinary consumer would recognize.” Id. ¶ 33.
Plaintiffs cite to Exhibit D in their complaint, although the screenshots of user accounts and merchant storefronts appear at Exhibit C - Part 1 and Exhibit C -Part 2 on ECF.
Each defendant has accepted payment in U.S. dollars for the counterfeit Little Baby Bum Products and “provides shipping and/or has actually shipped Counterfeit Products to the U.S., including to customers located in New York.” Id. ¶ 35. Defendants use the Little Baby Bum Marks “in order to confuse consumers into believing” that their counterfeit products are plaintiffs' products and to “aid in the promotion and sales” of their counterfeit products. Id. ¶ 39. Defendants' dealings in counterfeit products have caused and continue to cause confusion and mistake among the public and the trade, thereby deceiving consumers and damaging plaintiffs. Id. ¶ 42. Due to defendants' defaults, plaintiffs were unable to engage in any discovery regarding the scope of their sales, profits, and costs (among other discoverable issues). Affidavit of Gabriela N. Nastasi (“Nastasi Aff.”) dated June 27, 2022, Dkt. No. 47, ¶ 12.
B. Procedural History
Plaintiffs filed this action on December 2, 2021. Plaintiffs assert five causes of action: (1) trademark counterfeiting under 15 U.S.C. §§ 1114(1)(b), 1116(d), and 1117(b)-(c); (2) infringement of registered trademarks under 15 U.S.C. § 1114; (3) infringement of unregistered trademarks under 15 U.S.C. § 1125; (4) false designation of origin, passing off, and unfair competition under 15 U.S.C. § 1125(a); and (5) unfair competition under New York common law. Id.
Plaintiffs simultaneously moved ex parte for a temporary restraining order (“TRO”), an order restraining assets, an order to show cause why a preliminary injunction should not issue, an order authorizing alternative service by electronic means, and an order authorizing expedited discovery (collectively, the “Application”). Dkt. Nos. 14-15 (previously filed under seal as Dkt. No. 2). Counsel for each plaintiff also submitted declarations in support of the Application. Declaration of Gabriela Natasi (“Natasi Decl.”) dated December 2, 2021, Dkt. No. 12; Declaration of Karine Ahton (“Ahton Decl.”) dated November 25, 2021, Dk. No. 13. On December 6, 2021, the Court granted the Application and entered a TRO. See Dkt. Nos. 3, 6. Pursuant to the terms of the TRO, plaintiffs served defendants with copies of the Summons, Complaint, TRO, and all documents filed in support of the Application. Dkt. No. 21. On January 6, 2022, the Court entered a preliminary injunction against defendants. Dkt. No. 4.
On April 29, 2022, plaintiffs moved for a default judgment, Dkt. No. 40, and filed a memorandum of law in support of the motion. Dkt. No. 39. On May 25, 2022, the Court ordered defendants to show cause why a default judgment and a permanent injunction should not be entered. Dkt. No. 41. Defendants were properly served with the order to show cause but never responded. Dkt. No. 42. Accordingly, on June 2, 2022, the Court granted a default judgment and entered a permanent injunction in favor of plaintiffs, finding that the complaint adequately established liability for the pleaded claims. Dkt. No. 44. The case was then referred to me to conduct an inquest into plaintiffs' damages, Dkt. No. 43, and plaintiffs filed inquest submissions on June 27, 2022. Proposed Findings of Fact and Conclusions of Law (“Pl. Mem.”), Dkt. No. 46; Nastasi Aff. Plaintiffs seek statutory damages in the amount of $50,000 for each of the 25 defaulting defendants, totaling $1,250,000, plus post-judgment interest. Pl. Mem. ¶ 59.
II. DISCUSSION
A. Personal Jurisdiction
As a threshold matter, the Court has personal jurisdiction over the defaulting defendants, who are alleged to be located in China. See, e.g., Hood v. Ascent Med. Corp., No. 13-CV-628 (RWS) (DF), 2016 WL 1366920, at *6 (S.D.N.Y. Mar. 3, 2016) (“Where a plaintiff's filings raise questions as to whether a district court may permissibly exercise personal jurisdiction over a non-appearing defendant, the court may consider sua sponte whether the plaintiff has set forth facts justifying the assertion of personal jurisdiction.”), adopted by 2016 WL 3453656 (June 20, 2016), aff'd, 691 Fed.Appx. 8 (2d Cir. 2017). In a federal question action like this one where the statute does not provide for nationwide service, the personal jurisdiction rules of the forum state apply. See, e.g., Schentag v. Nebgen, No. 17-CV-8734 (GHW), 2018 WL 3104092, at *15 (S.D.N.Y. June 21, 2018) (citing PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997)). Accordingly, New York law applies.
New York's long-arm statute provides that a court may exercise personal jurisdiction over any non-domiciliary who “transacts any business within the state or contracts anywhere to supply goods or services in the state” or “commits a tortious act without the state causing injury to person or property within the state . . . if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y. C.P.L.R. §§ 302(a)(1), (3). Here, New York customers are able to order goods for delivery from the defaulting defendants through Alibaba and AliExpress. See Compl. ¶ 22; Pl. Mem. ¶ 10. Accordingly, plaintiffs have established that the Court has personal jurisdiction over the defaulting defendants. See, e.g., Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 170 (2d Cir. 2010) (personal jurisdiction over defendant that “operated . . . website offering such bags for sale to New York consumers”); Alibaba Grp. Holding Ltd. v. Alibabacoin Found., No. 18-CV-2897 (JPO), 2018 WL 5118638, at *3-4 (S.D.N.Y. Oct. 22, 2018) (personal jurisdiction over defendants based on online purchases by New York residents).
B. Legal Standards for an Inquest Into Damages
Once liability has been established, as is the case here, see Dkt. No. 44, the only remaining issue is “whether the plaintiff has provided adequate support for the [damages] it seeks.” Bleecker v. Zetian Sys., Inc., No. 12-CV-2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997)); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.”).
Establishing the appropriate amount of damages involves two steps: “(1) ‘determining the proper rule for calculating damages on . . . a claim'; and (2) ‘assessing plaintiff's evidence supporting the damages to be determined under this rule.'” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *4 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must submit “sufficient evidence, in the form of detailed affidavits and other documentary materials to enable the district court to ‘establish damages with reasonable certainty.'” Nat'l Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatl. Marine Claims Agency, 109 F.3d at 111) (internal citations omitted); see also Fed.R.Civ.P. 55(b)(2). Although Rule 55 of the Federal Rules of Civil Procedure allows the Court to conduct hearings to determine damages, no such hearing is mandatory. See Cement & Concrete Corkers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012).
The Second Circuit has long approved the process of conducting an inquest by affidavit, without an in-person court hearing, “as long as [the court has] ensured that there was a basis for the damages specified in the default judgment.” Transatl. Marine Claims Agency, Inc., 109 F.3d at 111 (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). Here “a hearing is not necessary, as documents submitted in this action provide a ‘sufficient basis from which to evaluate the fairness' of the damages requested.” Am. Jewish Comm., 2016 WL 3365313, at *4 (quoting Fustok, 873 F.2d at 40).
C. Statutory Damages
1. Legal Standard Under the Lanham Act, “at any time before final judgment is rendered,” a trademark owner may elect to recover an award of statutory damages, rather than actual damages, from the infringer. 15 U.S.C. §§ 1117(c), (d). Section 1117(c) was enacted to address the difficulty of calculating actual damages caused by counterfeiters. See, e.g., All-Star Mktg. Grp., LLC v. Media Brands Co., Ltd., 775 F.Supp.2d 613, 620-21 (S.D.N.Y. 2011) (“The rationale for § 1117(c) is the practical inability to determine profits or sales made by counterfeiters.”) (citing Bus. Trends Analysts, Inc. v. Freedonia Grp., Inc., 887 F.2d 399, 406 (2d Cir. 1989)); Gucci Am., Inc. v. Duty Free Apparel, Ltd., 315 F.Supp.2d 511, 520 (S.D.N.Y. 2004) (“Congress added the statutory damages provision of the Lanham Act in 1995 because ‘counterfeiters' records are frequently nonexistent, inadequate, or deceptively kept . . ., making proving actual damages in these cases extremely difficult if not impossible.'”) (omission in original), amended in part, 328 F.Supp.2d 439 (2004), overruled on other grounds, Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 106, 111 (2d Cir. 2012). For the use of a counterfeit mark, a court may award statutory damages “not less than $1,000 or more than $200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just,” or, if the use of the counterfeit mark is found to be willful, up to “$2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed, as the court considers just.” 15 U.S.C. § 1117(c)(2). Although this provision instructs courts to award a “just” amount and establishes a cap on the award, it “does not provide guidelines for courts to use in determining an appropriate award, as it is only limited by what the court considers just.” Gucci Am., 315 F.Supp.2d at 520 (internal citation and quotation marks omitted).
For such guidelines, courts in this District have looked to an analogous provision in the Copyright Act for guidance, 17 U.S.C. § 504(c), and have considered the following factors in setting statutory damage awards under the Lanham Act: (1) “the expenses saved and the profits reaped”; (2) “the revenues lost by the plaintiff”; (3) “the value of the copyright”; (4) “the deterrent effect on others besides the defendant”; (5) “whether the defendant's conduct was innocent or willful”; (6) “whether a defendant has cooperated in providing particular records from which to assess the value of the infringing material produced”; and (7) “the potential for discouraging the defendant.” Philip Morris USA Inc. v. A & V Minimarket, Inc., 592 F.Supp.2d 669, 673 (S.D.N.Y. 2009) (citations and internal quotation marks omitted); accord, e.g., Sream, Inc. v. West Village Grocery Inc., No. 16-CV-2090 (CM) (OTW), 2018 WL 4735706, at *3 (S.D.N.Y. Sept. 14, 2018), adopted Dkt. 40 (Oct. 1, 2018); Cengage Learning, Inc. v. Bhargava, No. 14-CV-3174 (DAB) (RLE), 2017 WL 9802833, at *4 (S.D.N.Y. Aug. 22, 2017), adopted by 2018 WL 1989574 (April 25, 2018); Northface Apparel Corp. v. Moler, No.12-CV-6688 (JGK) (GWG), 2015 WL 4385626, at *5 (S.D.N.Y. July 16, 2015), adopted by 2015 WL 5472939 (Sept. 16, 2015).
2. Plaintiffs Should be Awarded Statutory Damages
Plaintiffs seek $50,000 in statutory damages against each defendant. Pl. Mem. ¶ 59. The first and second factors-i.e., the expenses saved and the profits reaped by defendants as a result of their infringement, and the revenues lost by plaintiffs-are unknown. However, the Court resolves any uncertainty in favor of plaintiffs because they should not be deprived of their right to recover statutory damages simply because it is impossible to discern the expenses saved and profits reaped by the defaulting defendants. See, e.g., Philip Morris, 592 F.Supp.2d at 674 (in trademark infringement suit, where defendants fail to respond to complaint or to papers seeking default judgment and provide no information relating to circumstances, “Court draws every reasonable inference on these points against . . . defendants”); Sara Lee Corp. v. Bags of New York, 36 F.Supp.2d 161, 169 (S.D.N.Y. 1999) (“The Second Circuit instructs that in determining infringement damages, courts are to resolve against the defendants any factual uncertainties, such as whether any portion of the defendants' revenue may be deducted from damages, when the defendants left the uncertainty by not responding to the evidence of counterfeit sales with evidence of their own.”); Polo Ralph Lauren, L.P. v. 3M Trading Co. Inc., No. 97-CV-4824 (JSM), 1999 WL 33740332, at *6 (S.D.N.Y. April 19, 1999) (“defendants have declined to participate in this lawsuit, and have thus deprived plaintiffs of the opportunity to make a meaningful assessment of the extent of their business, including volume of sales and profits earned”).
As to the third factor, the record does not provide the exact monetary value of the plaintiffs' marks. It does provide that plaintiffs' Little Baby Bum Products “have achieved worldwide recognition and success as a result of [their] efforts in building up and developing consumer recognition, awareness[,] and goodwill in their Little Baby Bum Products,” and have consequently “amassed enormous value.” Pl. Mem. ¶ 56; Ahton Decl., ¶¶ 13-14. The Little Baby Bum show has 35 million subscribers, “along with a series on Netflix,” and has been referred to in media publications as “YouTube's Magic Money Machine.” Pl. Mem. ¶ 2, n.2. The Court can therefore “infer from the well-known reputations of most or all of the trademarks and the sea of advertising that presses them on the consciousness of the buying public that they are indeed valuable.” Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12-CV-9190 (GBD) (AJP), 2013 WL 6481354, at *4 (S.D.N.Y. Dec. 3, 2013), adopted by 2014 WL 1338065 (April 3, 2014); see also Off-White LLC v. Baoding Springru Trade Co., No. 19-CV-674 (RA) (JLC), 2020 WL 1646602, at *7 (S.D.N.Y. Apr. 3, 2020) (inferring from features in prominent publications that mark is valuable), adopted by 2020 WL 3050553 (June 8, 2020). Moreover, “the persistence of the counterfeiting of . . . marks regardless of legal obstacles is itself a testimonial to their value.” Polo Ralph Lauren, 1999 WL 33740332, at *6. That 25 defendants have committed 359 infringing uses of plaintiffs' Little Baby Bum Marks is evidence of the mark's value that weighs in favor of plaintiffs' request for damages. See Nastasi Aff., Ex. C.
Factors four and seven, which relate to deterring the conduct of the defaulting defendants and others, also weigh in plaintiffs' favor. “The need to deter other counterfeiters is particularly compelling given the apparent extent of counterfeit activity,” including the claims brought against the 25 defaulting defendants in this suit. Bumble & Bumble, LLC v. Pro's Choice Beauty Care, Inc., No. 14-CV-6911 (VEC) (JLC), 2016 WL 658310, at *5 (S.D.N.Y. Feb. 17, 2016), adopted by 2016 WL 1717215 (April 27, 2016). A substantial award is necessary to discourage the defaulting defendants from continuing to engage in their illicit conduct. In addition, the defaulting defendants' willful misconduct and failure to appear in this litigation merit a finding that “a slight damage award is unlikely to deter them from continuing their illegal business.” Louis Vuitton Malletier, S.A. v. LY USA, No. 06-CV-13463 (AKH), 2008 WL 5637161, at *2 (S.D.N.Y. Oct. 3, 2008) (citations omitted); see, e.g., Coach, Inc. v. O'Brien, No. 10-CV-6071 (JPO), 2012 WL 1255276, at *14 (S.D.N.Y. April 13, 2012) (“Although nothing in the record demonstrates whether [plaintiff] lost any revenue from [defendant's] infringement, the goal of deterring similar conduct generally requires a significant award.”); Malletier v. Carducci Leather Fashions, Inc., 648 F.Supp.2d 501, 504 (S.D.N.Y. 2009) (“where . . . a defendant is shown to have acted willfully, a statutory award should incorporate not only a compensatory, but also a punitive component to discourage further wrongdoing by the defendants and others”).
The remaining factors also weigh in favor of plaintiffs. With respect to the fifth factor, as discussed above, in this district a defaulting defendant is considered a per se willful infringer. See, e.g., Malletier, 648 F.Supp.2d at 504 (willfulness presumed “by virtue of . . . default”). Regarding the sixth factor, the defaulting defendants have failed to participate in this litigation, and thus have deprived plaintiffs of any records from which to assess the value of the infringing materials.
The requested statutory damage award of $50,000 per defaulting defendant is reasonable when considering not only the factors outlined above, but also that the amount sought against each defaulting defendant is both well below the maximum award of two million dollars that could be assessed against each of them individually for willful counterfeiting, and well within the range of awards granted by courts in this district in similar circumstances. See, e.g., Off-White LLC v.AAWarm HouseAAStore, No. 17-CV-8872 (GBD) (GWG), 2019 WL 418501, at *5 (S.D.N.Y. Jan. 17, 2019) (adopting recommendation of $100,000 in statutory damages per defaulting defendant); Pitbull Prods., Inc. v. Universal Netmedia, Inc., No. 07-CV-1784 (RMB) (GWG), 2007 WL 3287368, at *4 (S.D.N.Y. Nov. 7, 2007) ($250,000 per mark for two marks where defendant's conduct was willful and defendant's default “left the Court with no information as to any of the factors relating to the defendants' circumstances”), adopted by 2008 WL 1700196 (April 4, 2008); Kenneth Jay Lane, Inc. v. Heavenly Apparel, Inc., No. 03- CV-2132 (GBD), 2006 WL 728407, at *6 (S.D.N.Y. Mar. 21, 2006) ($125,000 per infringed mark with no information in record regarding defendants' business, products market, or volume of profits) (award would sufficiently “impress upon [defendant] that there are consequences for its misconduct” and would “serve as a specific deterrent to [defendant] and as a general deterrent to others who might contemplate engaging in infringing behavior in the future”); see also All-Star Mktg. Grp., 775 F.Supp.2d at 624-25 (collecting cases awarding between $25,000 and $250,000 per mark).
For all these reasons, plaintiffs should be awarded $50,000 against each of the remaining 25 defaulting defendants, for a total amount of $1,250,000.
D. Post-Judgment Interest
Pursuant to 28 U.S.C. § 1961, “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . . [and] shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.” 28 U.S.C. § 1961(a). Plaintiffs are consequently entitled to and should be awarded post-judgment interest on the money judgments entered in this action. See, e.g., WowWee Group Limited v. Haoqin, No. 17-CV-9893 (WHP), 2019 WL 1316106, at *4 (S.D.N.Y. Mar. 22, 2019) (granting post-judgment interest following default by defendants who counterfeited plaintiff's marks and products); Bumble and Bumble, 2016 WL 658310, at *12 (granting post-judgment interest after plaintiff's success on merits of trademark infringement claim).
III. CONCLUSION
For the foregoing reasons, the Court recommends that plaintiffs be awarded statutory damages in the amount of $50,000 against each of the 25 defaulting it;
defendants, for a total of $1,250,000, plus post-judgment interest.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield and the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Schofield.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).