Case 1:21-cv-02584-GHW-VF Document 156 Filed 09/29/22 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`BOOKENDS & BEGINNINGS LLC,
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`Plaintiff,
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`AMAZON.COM, INC., HACHETTE BOOK
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`GROUP, INC., HARPERCOLLINS PUBLISHERS :
`L.L.C., MACMILLAN PUBLISHING GROUP,
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`LLC, PENGUIN RANDOM HOUSE LLC, and
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`SIMON & SCHUSTER, INC.,
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` Defendants.
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`GREGORY H. WOODS, United States District Judge:
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`USDC SDNY
`DOCUMENT
`ELECTRONICALLY FILED
`DOC #: _________________
`DATE FILED: 9/29/2022
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`ORDER
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`1:21-cv-2584-GHW-VF
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`On August 15, 2022, Magistrate Judge Valerie Figueredo issued a thoughtful and well-
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`reasoned Report and Recommendation in this matter. In it, Judge Figueredo recommended that the
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`Court grant Defendants’ motions to dismiss Plaintiff’s claims in this case. Because the Report and
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`Recommendation is sound, the Court adopts it in full and grants Defendants’ motions to dismiss.
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`I.
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`BACKGROUND
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`The Court refers to the Report and Recommendation, Dkt. No. 146 (the “R&R”), for a
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`comprehensive description of the facts and procedural history of the case but will briefly review the
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`procedural history relevant to these motions.
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`The initial complaint in this matter was filed on March 25, 2021. Dkt. No. 1. In May 2021,
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`both of the so-called “Publisher Defendants”1 and Amazon.com, Inc. (“Amazon”) filed pre-motion
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`conference letters requesting leave to file motions to dismiss the complaint. Dkt. Nos. 43, 44. In
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`their letters, Defendants asserted that the factual predicate of the initial complaint—that the
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`1 The Publisher Defendants are Hachette Book Group, Inc., HarperCollins Publishers LLC, Macmillan Publishing
`Group, LLC, Penguin Random House LLC, and Simon & Schuster, Inc.
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`Case 1:21-cv-02584-GHW-VF Document 156 Filed 09/29/22 Page 2 of 5
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`Publisher Defendants had contracts with Amazon that contained “highly restrictive most favored
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`nation clauses (MFNs)”—was simply not true. Id. In response to the letters, Plaintiff decided to
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`amend the initial complaint. The parties entered into a stipulation in which they agreed to a
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`schedule for the filing of an amended complaint; that stipulation was adopted by Magistrate Judge
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`Debra C. Freeman on June 17, 2021. Dkt. No. 59. Plaintiff filed its amended complaint on July 9,
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`2021. Dkt. No. 65.
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`Two separate motions to dismiss were filed on September 7, 2021. The first was filed by the
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`Publisher Defendants.2 Dkt. No. 75. The second was filed by Amazon. Dkt. No. 77. In addition,
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`Amazon filed a motion to strike Plaintiff’s class allegations. Dkt. No. 79. Plaintiff filed its
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`oppositions to each of the motions to dismiss and the motion to strike on October 22, 2021. Dkt.
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`Nos. 94, 95, 98. And the Publisher Defendants and Amazon each filed their respective replies on
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`November 22, 2021. Dkt. Nos. 111, 112, 114.
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`Judge Figueredo held oral argument with respect to the motion on July 27, 2022, and issued
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`her R&R on August 15, 2022. In the R&R, Judge Figueredo carefully analyzed the arguments
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`presented by Defendants and recommended that the Court dismiss all of Plaintiff’s claims. The
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`R&R did not address the issue of whether the Court should grant Plaintiff leave to amend the
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`complaint. On September 7, 2022, Judge Figueredo issued a separate Report and Recommendation
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`with respect to Defendants’ applications to strike Plaintiff’s class allegations. Dkt. No. 147. In it,
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`Judge Figueredo recommended that, in the event that the Court elected not to accept her
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`recommendation that Defendants’ motions to dismiss be granted, that it deny the motions to strike
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`without prejudice as premature.
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`Plaintiff objected to substantially all of Judge Figueredo’s conclusions in the R&R through a
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`comprehensive set of objections filed on September 15, 2022 (the “Objections”). Dkt. No. 150.
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`2 The Publisher Defendants also moved to strike Plaintiff’s class allegations. Dkt. No. 75.
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`Case 1:21-cv-02584-GHW-VF Document 156 Filed 09/29/22 Page 3 of 5
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`The Publisher Defendants and Amazon filed responses in support of the conclusions of the R&R
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`on September 27, 2022. Dkt. Nos. 153, 154.
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`II.
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`LEGAL STANDARD
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`A district court reviewing a magistrate judge’s report and recommendation “may accept,
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`reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
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`judge.” 28 U.S.C. § 636(b)(1). Parties may raise specific, written objections to the report and
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`recommendation within fourteen days of receiving a copy of the report. Id.; see also Fed. R. Civ. P.
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`72(b)(2).
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`When a party timely objects to a magistrate’s report and recommendation, a district court
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`reviews de novo “those portions of the report or specified proposed findings or recommendations to
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`which objection is made.” 28 U.S.C. § 636(b)(1). But where “the party makes only frivolous,
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`conclusory or general objections, or simply reiterates her original arguments, the Court reviews the
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`report and recommendation only for clear error.” Chen v. New Trend Apparel, Inc., 8 F. Supp. 3d 406,
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`416 (S.D.N.Y. 2014) (quoting Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366 (S.D.N.Y. 2007)).
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`“Further, the objections ‘must be specific and clearly aimed at particular findings in the magistrate
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`judge’s proposal.’” McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009) (quoting Molefe v.
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`KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)). The Court also reviews for
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`clear error those parts of the report and recommendation to which no party has timely objected. 28
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`U.S.C. § 636(b)(1)(A); Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008).
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`III. DISCUSSION
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`While the Publisher Defendants argue in their response that many of the arguments
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`presented in the Objections are entitled to only clear error review, for purposes of its evaluation of
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`the R&R, the Court treats the Objections as sufficiently precise to merit de novo review. The Court
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`has reviewed the briefing with respect to the motions to dismiss and the Objections and has
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`conducted a de novo review of the arguments presented in connection with the motions to dismiss,
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`informed by the arguments presented in the Objections and the briefing responding to them.
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`Having done so, the Court rejects the Objections and adopts in full the thoughtful and well-
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`reasoned R&R by Judge Figueredo. As a result, for the reasons set forth in the R&R, Defendants’
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`motions to dismiss are granted. Because the Court has granted Defendants’ motions to dismiss, it
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`denies Defendants’ applications to strike Plaintiff’s class allegations as moot.
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`IV.
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`LEAVE TO AMEND
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`Plaintiff is granted leave to amend the complaint. See Cortec Indus., Inc. v. Sum Holding L.P.,
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`949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice upon granting a motion to dismiss to allow
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`leave to replead.”); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend]
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`when justice so requires.”). The R&R does not make a recommendation regarding whether leave to
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`amend should be granted. In the Objections, Plaintiff requests leave to amend in the event that the
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`Court were to grant Defendants’ motions to dismiss. Objections at 25. Defendants argue that leave
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`to amend should be denied, noting that Plaintiff had the opportunity to amend the complaint
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`following the submission of the motions to dismiss and chose not to do so. Dkt. No. 153 at 24;
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`Dkt. No. 154 at 24.
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`Leave to amend may be denied “for good reason, including futility, bad faith, undue delay, or
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`undue prejudice to the opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.
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`2014) (citation omitted). None of those conditions apply here: the Court cannot conclude that a
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`further amendment of the complaint would be futile. And Plaintiff has not yet had the opportunity
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`to amend the complaint with the benefit of a ruling from the Court. “Without the benefit of a
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`ruling, many a plaintiff will not see the necessity of amendment or be in a position to weigh the
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`practicality and possible means of curing specific deficiencies.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells
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`Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015). Accordingly, Plaintiff may amend the complaint.
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`Any amended complaint must be filed within 30 days of the date of this order.
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`V.
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`CONCLUSION
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`For the reasons set forth in the R&R, Defendants’ motions to dismiss are GRANTED
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`without prejudice. Defendants’ motions to strike are DENIED as moot.
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`The Clerk of Court is directed to terminate the motions pending at Dkt. Nos. 75, 77, and 79.
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`SO ORDERED.
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`Dated: September 29, 2022
` New York, New York
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`__________________________________
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`GREGORY H. WOODS
`United States District Judge
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