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Fennick v. Nycm, New York Cent. Mut. Fire Ins. Co.

United States District Court, Second Circuit

December 11, 2013

KEVIN FENNICK, Plaintiff,
v.
NYCM, New York Cent. Mut. Fire Ins. Co.; NCYM Ins. Co.; and NYCM Ins. Co., Defendants.

KEVIN FENNICK, Plaintiff, Pro Se Boston, Massachusetts.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this civil rights action filed by Kevin Fennick ("Plaintiff") against the three above-captioned insurance companies ("Defendants") is United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that this action be sua sponte dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), without leave to replead, due to Plaintiff's failure to submit an Amended Complaint curing the pleading deficiencies identified by Magistrate Judge Peebles in his Report-Recommendation of May 17, 2013. (Dkt. No. 32.) For the reasons set forth below, Magistrate Judge Peebles' Report-Recommendation is accepted and adopted in its entirety, and Plaintiff's Complaint is dismissed without leave to replead

I. RELEVANT PROCEDURAL BACKGROUND

The time period by which to file an objection to Magistrate Judge Peebles' Report-Recommendation expired on November 8, 2013, and Plaintiff failed to file an objection by that time period. See Fed.R.Civ.P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed.R.Civ.P. 6(a)(1)(C); Fed.R.Civ.P. 6(d). ( See also generally Docket Sheet.) However, thirteen days after the expiration of the deadline, on November 21, 2013, Plaintiff filed a submission entitled, "Motion for Extension and to Amend in Compliance [with] the Rules of Federal Court." (Dkt. Nos. 33.) Moreover, four days later, on November 25, 2013, Plaintiff filed eight pages of exhibits to his prior motion. (Dkt. No. 34.) Out of special solicitude to Plaintiff, the Court will construe Plaintiff's two submissions as including a request for leave to file a belated objection, and will grant that request.

II. STANDARD GOVERNING REVIEW OF A REPORT-RECOMMENDATION

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific, " the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).[1] When performing such a de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[2] Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance.[3]

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.[4] Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[5] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. [6]

After conducing the appropriate review, 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).

III. SUMMARY OF PLAINTIFF'S OBJECTION

Generally, in his Objection, Plaintiff fails to specifically challenge any finding or conclusion in Magistrate Judge Peebles' Report-Recommendation. ( Compare Dkt. No. 18 and Dkt. No. 32 with Dkt. No. 33.) Rather, Plaintiff attempts to change the record presented to Magistrate Judge Peebles by attaching certain exhibits and requesting leave to file an Amended Complaint. (Dkt. Nos. 33, 34.)

IV. ANALYSIS

Based upon a careful review of this matter, the Court can find no error with Magistrate Judge Peebles' Report-Recommendation, clear or otherwise. (Dkt. No. 32.) Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. ( Id. ) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. ( Id. ) The Court would add only three points.

First, implicit in the Court's ruling is a finding that Plaintiff's "Emergency Motion to Amend" of September 26, 2013 (Dkt. No. 29), does not contain an Amended Complaint that corrects the pleading deficiencies identified by Magistrate Judge Peebles on May 17, 2013 (Dkt. No. 18). Nor is Plaintiff's motion even necessary, given that leave to file an Amended Complaint was granted on September 20, 2013. (Dkt. No. 25.) What was necessary was an Amended Complaint, which (again) Plaintiff failed to submit. As a result, Plaintiff's "Emergency Motion to Amend" is denied.

Second, like his motion to amend of September 26, 2013, the motion to amend contained in Plaintiff's Objection ( see Dkt. Nos. 33, 34) does not correct the pleading deficiencies previously identified by Magistrate Judge Peebles. (Dkt. Nos. 18, 32.) For example, Plaintiff merely submits seven pages of documents regarding the appraisal cost of his grandmother's automobile, and a one-page Commonwealth of Massachusetts Merit Rating Board Late Appeal Form. (Dkt. No. 34.) However, when considered together with his operative Complaint, those documents do not allege facts plausibly suggesting (1) that Defendants were acting under the color of state law when they engaged in the conduct forming the basis of Plaintiff's claims, (2) the state to which he is referring, (3) any statute, other that 42 U.S.C. § 1983, supporting his discrimination claim, (4) specifically how he relied on the alleged false statement by Defendants, (5) specifically how he incurred damages apart from the damage to his grandmother's motor vehicle, (6) how Plaintiff has standing to assert a damage claim to recover costs to a third-party's vehicle, and (7) that Plaintiff prevailed in a lawsuit awarding money damages against the other driver. (Dkt. No. 18.)

Third, these seven pleading defects are also not corrected by Plaintiff's three-page "Letter Motion to Amend" of December 5, 2013. (Dkt. No. 35.) The Court reaches this conclusion regardless of whether it construes that motion in isolation or together with his other motions.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 32) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Plaintiff's "Emergency Motion to Amend" (Dkt. No. 29) is DENIED; and it is further

ORDERED that the motion to amend contained in Plaintiff's Objections (Dkt. Nos. 33, 34) is DENIED; and it is further

ORDERED that Plaintiff's "Letter Motion to Amend" (Dkt. No. 35) is DENIED; and it is further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without leave to replead; and it is further

ORDERED that the Clerk of the Court is directed to enter judgment in favor of the Defendants and close this case.


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