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O'Neil v. Ponzi

February 9, 2010

AIMEE O'NEIL, PLAINTIFF,
v.
FLOYD WEENO PONZI, OWNER OF DELUXE PAINTING; AND MARY PONZI-FLETT, OSWEGO COUNTY LEGISLATOR, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se civil action asserting claims under, inter alia, the Racketeer Influenced and Corrupt Organizations Act ("RICO") action are an Amended and Supplemental Complaint filed by Aimee O'Neill ("Plaintiff") (Dkt. No. 6), United States Magistrate Judge George H. Lowe's Report-Recommendation recommending that Plaintiff's Amended and Supplemental Complaint be dismissed due to its frivolousness (Dkt. No. 8), and Plaintiff's motion to stay the proceedings pending the completion of an investigation by Plaintiff's private investigator (Dkt. No. 9). For the reasons discussed below, Magistrate Judge Lowe's Report-Recommendation is accepted and adopted in its entirety, Plaintiff's Amended and Supplemental Complaint is dismissed with prejudice due to its frivolousness, and Plaintiff's motion to stay the proceedings is denied.

I. RELEVANT BACKGROUND

On August 28, 2009, Plaintiff filed a Complaint against Floyd Weeno Ponzi and Mary Ponzi-Flett ("Defendants"). (Dkt. No. 1.) On September 9, 2009, Magistrate Judge Lowe issued a Report-Recommendation recommending, inter alia, that Plaintiff's action be dismissed unless, within thirty days of the date of the Report-Recommendation, Plaintiff filed an Amended Complaint that stated a claim upon which relief can be granted. (Dkt. No. 5.) On October 8, 2009, Plaintiff filed an Amended and Supplemental Complaint. (Dkt. No. 6.) On October 22, 2009, this Court issued a Decision and Order accepting and adopting Magistrate Judge Lowe's Report-Recommendation, and directing (1) that the Clerk of the Court return the file in this action to Magistrate Judge Lowe for his review of the Amended and Supplemental Complaint for compliance with the Federal Rules of Civil Procedure, (2) that the Clerk of the Court terminate Plaintiff's action numbered 5:09-CV-0985 (because it was opened in error and it is duplicative of her action numbered 5:09-CV-0983), and (3) that the Clerk fo the Court correct the docket sheet in this action to reflect the only two defendants identified in the Amended and Supplemental Complaint. (Dkt. No. 7.)

On November 23, 2009, Magistrate Judge Lowe issued a Report-Recommendation, recommending that Plaintiff's Amended and Supplemental Complaint be dismissed due to its frivolousness. (Dkt. No. 8.) During the ten working days plus three calendar days that followed (i.e., by December 11, 2009),*fn1 Plaintiff did not file Objections to the Report-Recommendation.

(See generally Docket Sheet.) Instead, on December 9, 2009, Plaintiff filed a motion to stay the proceedings pending the completion of an investigation by Plaintiff's private investigator. (Dkt. No. 9.) This Court does not liberally construe this document as an Objection to the Report-Recommendation. The motion is brief and does not state any grounds on which Plaintiff is challenging the Report-Recommendation. (Id.)

Moreover, on December 14, 2009, Plaintiff filed a Notice of Appeal (presumably from the Report-Recommendation) to the United States Court of Appeals for the Second Circuit. (Dkt. No. 10.) Again, this Court does not liberally construe this document as an Objection to the Report-Recommendation. Apart from having been filed after the deadline for Objections, the Notice of Appeal is brief and does not state the grounds on which Plaintiff is challenging the Report-Recommendation. (Id.) Moreover, on December 16, 2009, the Clerk of the Court sent an electronic notice and certification of the appeal to the United States Court of Appeals for the Second Circuit. (Dkt. No. 11.)

The Court notes that, under the circumstances, Plaintiff's appeal does not divest this Court of its jurisdiction over this action. This is because Plaintiff's appeal is clearly defective in that it is interlocutory in nature.*fn2 An order from a magistrate judge is not directly appealable to the Court of Appeals unless the parties consent to the magistrate judge being given plenary jurisdiction by the district court pursuant to 28 U.S.C. § 636(c)(1).*fn3 When the district court has not given the magistrate judge plenary jurisdiction, review of magistrate orders must first be sought from the district judge before such orders may be appealed to the Court of Appeals.*fn4

Here, the parties did not consent to the magistrate judge being given plenary jurisdiction by the district court in this case, nor did the Court review (and issue a Decision and Order on) Magistrate Judge Lowe's Report-Recommendation before Plaintiff filed her appeal.

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review of Magistrate Judge Lowe's Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn5

When only general objections are made to a magistrate judge's report-recommendation (or the objecting party merely repeats the allegations of his pleading), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn6 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After ...


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