Case 1:22-cv-00177-PAE-SDA Document 56 Filed 07/06/23 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ANGELA D'AREZZO,
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`Plaintiff,
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`22 Civ. 00177 (PAE) (SDA)
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`-v-
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`OPINION & ORDER
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`CATHERINE APPEL, and OVERTIME DANCE
`FOUNDATION, INC.,
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`Defendants.
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`PAUL A. ENGELMA YER, District Judge:
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`Plaintiff Angela D'Arezzo brings this federal copyright action against defendants
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`Catherine Appel and Overtime Dance Foundation, Inc. (collectively, "defendants"). Dkt. 1.
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`D'Arezzo alleges that she is the true author of the book titled The Salty Mountain, which tells the
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`story of her extended family's history in and immigration from Italy, and that Appel, D'Arezzo' s
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`fo1mer therapist, falsely registered The Salty Mountain as her own work. See id D'Arezzo
`seeks a declaratory judgment that (1) she was the sole author of The Salty Mountain, id ,r,r 55-
`61, or, in the alternative, (2) she and Appel are co-authors of The Salty Mountain, id ,r,r 62-68.
`She also alleges copyright infringement, breach of fiduciary duty, accounting, and constructive
`trust claims. Id ,r,r 69-91.
`On March 1, 2022, the Court refen-ed the case to the Honorable Stewart D. Aaron, United
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`States Magistrate Judge, for pretrial supervision. Dkt. 12. On August 5, 2022, defendants
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`notified the Court that they anticipated moving to dismiss D' Arezzo's claims, Dkt. 26, and the
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`Court refen-ed any such motion to dismiss to Judge Aaron for a Report and Recommendation,
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`Dkt. 29. On August 8, 2022, Judge Aaron refen-ed the case to mediation. Dkt. 27.
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`Case 1:22-cv-00177-PAE-SDA Document 56 Filed 07/06/23 Page 2 of 4
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`On October 18, 2022, the parties participated in a mediation conference with a court-
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`appointed mediator. The next day, the parties notified Judge Aaron that, at that conference, they
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`had agreed upon a preliminary framework for settlement, but could not resolve all outstanding
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`disputes. Dkt. 34. On December 21, 2022, after granting multiple extensions to the briefing
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`schedule for the motion to dismiss, Judge Aaron set a final schedule. Dkt. 39.
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`On January 27, 2023, defendants moved to dismiss. Dkt. 40. On January 30, 2023, the
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`Court issued an amended referral to Judge Aaron. Dkt. 41. On February 24, 2023, in requesting
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`a fifth extension, D'Arezzo again represented, through counsel, that settlement discussions were
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`ongoing. Dkt. 42. On March 3, 2023, however, D'Arezzo opposed the motion to dismiss. Dkt.
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`44. On March 15, 2023, defendants replied. Dkt. 46. On April 6, 2023, Judge Aaron ordered
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`D'Arezzo to file additional materials pertinent to the motion to dismiss. Dkt. 48. On April 27,
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`2023, D'Arezzo filed an affidavit and supporting exhibits, Dkt. 49, and an incomplete
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`memorandum oflaw, Dkt. 50. On April 28, 2023, D'Arezzo filed an amended memorandum of
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`law. Dkt. 52. On May 8, 2023, defendants filed a surreply, Dkt. 54, and a declaration and
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`exhibits in support, Dkt. 53.
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`On May 31, 2023, Judge Aaron issued a Report, recommending that the Court grant
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`defendants' motion to dismiss with respect to claims one ( sole authorship) and three ( copyright
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`infringement), but deny the motion with respect to all other claims. Dkt. 55 ("Report"). No
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`party objected. The Court incorporates by reference the summary of the facts provided in the
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`Report. For the following reasons, the Court adopts the Report in full.
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`DISCUSSION
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`In reviewing a Report and Recommendation, a district court "may accept, reject, or
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`modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28
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`2
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`Case 1:22-cv-00177-PAE-SDA Document 56 Filed 07/06/23 Page 3 of 4
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`U.S.C. § 636(b )(1 )(C). When specific objections are timely made, "[t]he district judge must
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`determine de nova any part of the magistrate judge's disposition that has been properly objected
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`to." Fed. R. Civ. P. 72(b)(3); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
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`1997). "To accept those portions of the report to which no timely objection has been made, a
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`district court need only satisfy itself that there is no clear error on the face of the record." Ruiz v.
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`Citibank, NA., No. 10 Civ. 5950 (KPF) (RLE), 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19,
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`2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y.
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`July 8, 2009)); see also, e.g., Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y.
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`2003).
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`If a party objecting to a Report and Recommendation makes only conclusory or general
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`objections, or simply reiterates its original arguments, the Court will review the Report strictly
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`for clear error. See Dickerson v. Conway, No. 08 Civ. 8024 (PAE), 2013 WL 3199094, at *1
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`(S.D.N.Y. June 25, 2013); Kozlowski v. Hulihan, Nos. 09 Civ. 7583, 10 Civ. 0812 (RJH)
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`(GWG), 2012 WL 383667, at *3 (S.D.N.Y. Feb. 7, 2012). This is so even in the case of a prose
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`plaintiff. Telfair v. Le Pain Quotidien US., No. 16 Civ. 5424 (PAE), 2017 WL 1405754, at *1
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`(S.D.N.Y. Apr. 18, 2017) (citing Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485,487
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`(S.D.N.Y. 2009)).
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`As no party has submitted objections to the Report, review for clear error is appropriate.
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`Careful review of Judge Aaron's perceptive and characteristically well-reasoned and thorough
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`Report reveals no facial error in its conclusions. The Report is therefore adopted in its entirety.
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`Because the Report explicitly states that the parties "shall have fourteen (14) days to file written
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`objections to this recommendation," and that the failure to file timely objections "will preclude
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`the right to object and also will preclude appellate review," Report at 13-14, the parties' failure
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`3
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`to object operates as a waiver of appellate review. See Caidor v. Onondaga County, 517 F.3d
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`601,604 (2d Cir. 2008) (citing Small v. Sec'y a/Health & Hum. Servs., 892 F.2d 15, 16 (2d Cir.
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`1989) (per curiam)).
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`CONCLUSION
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`For the foregoing reasons, the Court accepts and adopts the May 31, 2023 Report and
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`Recommendation in its entirety and grants in part and denies in part defendants' motion to
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`dismiss. The motion is granted as to D'Arezzo' s sole authorship and copyright claims, but
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`denied as to her co-authorship, breach of fiduciary duty, accounting, and constructive trust
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`claims.
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`The Court respectfully directs the Clerk of Court to terminate the motion at docket 40.
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`This case remains under Judge Aaron's capable pretrial supervision.
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`SO ORDERED.
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`Dated: July 6, 2023
`New York, New York
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`Paul A. Engelmayer
`United States District Judge
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`4
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