Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ASTA Funding, Inc. v. Neal

United States District Court, D. New Jersey

November 13, 2018

ASTA FUNDING, INC, Petitioner,
v.
DAVID SHAUN NEAL, et al., Defendants.

          MEMORANDUM AND ORDER

          KEVIN McNULTY. U.S.D.J.

         On June 30, 2016, I entered judgment in favor of the plaintiff, Asta Funding, Inc. ("Asta"). (DE 24, 25, 26) I denied a motion for reconsideration. (DE 46, 48) I also denied a Rule 60(b) motion to reopen the judgment. (DE 72) Plaintiffs filed notices of appeal (DE 51, 52) from my judgment and the denial of the post-judgment motions. Recently, on November 8, 2018, the U.S. Court of Appeals affirmed my judgment on the merits. (DE 95) In the ordinary course, the mandate will issue in approximately 21 days. Fed. R. App. P. 41(b).

         Meanwhile, Asta filed a motion, superseded by a renewed motion, for attorney's fees and costs. (DE 57) This was followed by motions to strike Asta's motion, contest service, and so on. The Magistrate Judge entered a report and recommendation awarding fees and costs, with accompanying order. (DE 83, 84) The plaintiffs did not then file any objection pursuant to Fed.R.Civ.P. 72; see also D.N.J. Local Civ. R. 72.1c.

         Instead, the plaintiffs filed notices of appeal to the U.S. Court of Appeals for the Third Circuit. (DE 85, 86) By amended orders dated November 28, 2017, the Third Circuit dismissed those appeals for lack of jurisdiction, because there was no final order as to attorney's fees. The Court noted that there is no direct appeal to the Court of Appeals from a Magistrate Judge's report and recommendation on a dispositive matter. Such a report and recommendation, the Court wrote, "must be accepted, rejected or modified by the District Court." (DE 89, 90). The Court of Appeals' decision issued in the form of a certified order in lieu of formal mandate, terminating the appeal. (Id.).

         A few days later, concerned that the plaintiffs not forfeit procedural rights as a result of a procedural misstep, I entered the following text order:

12/01/2017 TEXT ORDER: I am in receipt of an order from the U.S. Court of Appeals essentially stating that plaintiffs' notice of appeal was premature because the Magistrate Judge's award of attorney's fees must first be accepted, rejected, or modified by the district court. Plaintiff Asta has filed a letter requesting that the Magistrate Judge's award be affirmed. Because of die evidence procedural confusion, I will accept filing of objections in response to plaintiffs letter within 14 days.

(DE 92)

         I did not receive objections to the Magistrate Judge's report & recommendation, within 14 days or at any time thereafter.[1] Asta sent a letter requesting that I adopt the report and recommendation. (DE 93)[2] Recentiy, following the affirmance of my judgment on the merits, Asta renewed its letter request that I adopt the Magistrate Judge's report and recommendation regarding attorney's fees. (DE 96)

         ORDER

         IT APPEARING that the Magistrate Judge has entered a report and recommendation and order (DE 83, 84) awarding attorney's fees in the amount of $694, 174.07 and costs in the amount of $63, 183.14; and

         IT FURTHER APPEARING that plaintiffs filed no objection pursuant to Fed.R.Civ.P. 72; and

         IT FURTHER APPEARING that plaintiffs instead filed notices of appeal to the U.S. Court of Appeals for the Third Circuit, which thereafter dismissed the appeals for lack of jurisdiction (DE 89, 90); and

         IT FURTHER APPEARING that this Court then afforded the plaintiffs a second opportunity to file objections to the Magistrate Judge's report and recommendation within 14 days (DE 92); and

         IT FURTHER APPEARING that the plaintiffs again failed to file any objection pursuant to Fed.R.Civ.P. 72, then or at any time; and THE COURT having reviewed the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.