Order | Filed: September 29, 2026
| Entered: September 29, 2026
J.M.B. et al v. Dollar Tree Stores, Inc.
Personal Inj. Prod. Liability | New York Eastern
Order Adopting Report and Recommendations Order on Motion to Strike Order on Motion to Certify Class Order on Report and Recommendations
ORDER ADOPTING REPORT AND RECOMMENDATION: On February 20, 2026, I referred Defendant's motion to strike class action allegations, ECF No. 24 , and Plaintiffs' motion for class certification, ECF No. 31 , to Magistrate Judge Cross-Goldenberg for a report and recommendation ("R&R"). See Feb. 20, 2026, Text Order. Judge Cross-Goldenberg issued an R&R on August 26, 2026, in which she recommended that (1) Plaintiffs' motion for class certification be denied; (2) Plaintiffs' motion to compel the production of all point-of-sale data be denied as moot; (3) Defendant's motion to strike be denied as moot; and (4) Plaintiffs be granted leave to amend their complaint within 30 days to remove the class allegations. See ECF No. 42 . Consistent with Rule 72(b)(2), the R&R advised the parties that they had 14 days from its filing to file objections to it. Id. at 38.
On September 8, 2026, Plaintiffs filed their objections to the R&R. ECF No. 43 . Plaintiffs list five objections to the R&R. Specifically, they argue that the R&R should not be adopted because it: (1) applied the wrong legal standard for a Rule 23(b)(2) medical monitoring class; (2) "erred in finding Dollar Tree's register lock defeated standing"; (3) erred in finding that there was no commonality to satisfy the requirements of a Rule 23(a)(2) class; and (4) failed to recognize that under "the Rule 23(b)(3) predominance framework, common questions still predominate." Id. at 8-14. Plaintiffs' fifth objection is not so much an objection but a request that, in the alternative, the Court certify a Rule 23(b)(2) medical monitoring subclass. Id. at 14-15.
On September 22, 2026, Defendant filed its response to Plaintiffs' objections, and addressed each one in turn. See ECF No. 44 .
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. 636(b)(1)(C). For dispositive matters, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). For those portions of the R&R to which no proper objection is made, the Court need only satisfy itself that there is no clear error on the face of the record. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 n.4 (2d Cir. 2022). "When a timely filed objection raises and properly briefs arguments," even arguments "previously rejected by the magistrate judge, the district judge must review those arguments de novo." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 361 (2d Cir. 2025). On the other hand, "when the objections are nonspecific or merely perfunctory," a clear error standard applies. Id.
Plaintiffs' first objection fails to raise a proper objection and, therefore, does not suffice to invoke de novo review. See id. Plaintiffs object that Judge Cross-Goldenberg applied the wrong legal standard for a Rule 23(b)(2) medical monitoring class, but their objection is untimely. ECF No. 43 at 8-11. Neither the amended complaint nor Plaintiffs' opening brief on their motion for class certification made allegations in support of a class Rule 23(b)(2) certification. This argument should have been presented in Plaintiffs' opening motion and merit rejection on that basis alone. See, e.g., Nnebe v. Daus, No. 06-cv-4991, 2022 WL 615039, at *12 (S.D.N.Y. Mar. 1, 2022) (declining to permit plaintiffs to raise an alternative ground for class certification because plaintiffs "never sought to certify such a class in their operative complaint or in their original motion for class certification"); Dollar Phone Corp. v. St. Paul Fire, No. 09-cv-1640, 2011 WL 837793, at *3 (E.D.N.Y. Mar. 4, 2011) ("[T]he magistrate judge correctly noted that the revised class definition was not before the court in Plaintiffs' original motion, and thus was not properly the subject of a motion for reconsideration."); see also Eaton & Van Winkle, L... (truncated)