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Salgado v. East Port Excavation & Utilities Contractors, Inc.

United States District Court, E.D. New York

March 18, 2014

ROGELIO BARRAGAN-AQUINO and MANUEL A. SALGADO, individually and on behalf of others similarly situated, Plaintiffs,
v.
EAST PORT EXCAVATION & UTILITIES CONTRACTORS, INC.; ONE TEN RESTORATION, INC.; SUMMIT CONSTRUCTION SERVICES GROUP, INC.; N.J.D. WIRING & ELECTRIC, INC.; TDX CONSTRUCTION CORPORATION, INC.; STEVEN GOVERNALE; AMJAD NAZIR; FRANK GIATTINO; PETER KARAGERGIOU; and JAMES H. JONES, Defendants.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

Pending before the Court are the objections of plaintiffs Rogelio Barragan-Aquino and Manuel A. Salgado (collectively, "plaintiffs") to so much of a Report and Recommendation ("the Report") of the Honorable Arlene R. Lindsay, United States Magistrate Judge, dated January 28, 2014, as recommends that I decline to exercise supplemental jurisdiction over the state law claims against defendants TDX Construction Corporation, Inc. and its president, James H. Jones (collectively, "the TDX defendants") pursuant to 28 U.S.C. § 1367(a). For the reasons stated herein, so much of the Report as recommends that I decline to exercise supplemental jurisdiction over the state law claims against the TDX defendants is rejected, but the Report is otherwise accepted in its entirety.

I. Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b); see Marcella v. Capital Dist. Physicians' Health Plan. Inc., 293 F.3d 42, 46 (2d Cir. 2002). Any portion of a report and recommendation on dispositive matters to which a specific, timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Arista Records. LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). However, the court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner & Wagner. LLP v. Atkinson. Haskins. Nellis. Brittingham, Gladd & Carwile. P.C., 596 F.3d 84, 92 (2d Cir. 2010) ("[A] party waives [judicial] review of a decision in a magistrate judge's report and recommendation if the party fails to file timely objections designating the particular issue."); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) ("As a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point.")

General objections, or "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review*** [because] [s]uch objections would reduce the magistrate's work to something akin to a meaningless dress rehearsal." Owusu v. New York State Insurance, 655 F.Supp.2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and citations omitted); see also Butto v. Collecto. Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) ("In a case where a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." (quotations and citation omitted)); Menking ex rel. Menking v. Daines, 287 F.R.D. 174, 177 (S.D.N.Y. 2012) (accord). To accept the report and recommendation of a magistrate judge to which such general or perfunctory objections are made, or to which no specific, timely objection has been made, the district judge need only be satisfied that there is no clear error apparent on the face of the record. See Fed.R.Civ.P. 72(b); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed to determine whether the magistrate judge committed "plain error."); Praileau v. Fischer, 930 F.Supp.2d 383, 388 (N.D.N.Y. 2013) (holding that when no objection or only a general objection is made to a portion of a magistrate judge's report and recommendation, or an objection merely reiterates the same arguments presented to the magistrate judge, the court subjects that portion of the report and recommendation to clear error review).

Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Management. Inc., 295 F.R.D. I, 2 (E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care System. Inc. v. MultiPlan, Inc., 953 F.Supp.2d 419, 424 (E.D.N.Y. 2013).

II. Objections

Magistrate Judge Lindsay recommended that I "decline to exercise supplemental jurisdiction over the plaintiffs [sic] remaining state law claims and therefore dismiss[] the complaint in its entirety without prejudice, " (Report at 12), based upon the dismissal of the federal claims against the TDX defendants in the early stages of this litigation.

Plaintiffs contend, inter alia, that Magistrate Judge Lindsay erred in recommending that I decline to exercise supplemental jurisdiction over the state law breach of contract claim[1] against the TDX defendants because federal claims, over which this Court has original jurisdiction and with which that breach of contract claim is intertwined, remain against the other defendants.

In response, the TDX defendants contend, for the first time[2], that this Court should decline to exercise supplemental jurisdiction over the state law third-party beneficiary breach of contract claim against them because that claim "raises important issues of state law concerning the prevailing wage rate that should be decided in state court." (TDX Defendants' Response to Plaintiffs' Objections to the [Report] ["TDX Resp."] at 3).

"A district court's exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367 (section 1367')." Shahriar v. Smith & Wollensky Restaurant Group. Inc., 659 F.3d 234, 245 (2d Cir. 2011). Section 1367 provides:

"Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties."

(emphasis added). Since this Court has original federal question jurisdiction of this action pursuant to 28 U.S.C. § 1331, Section 1367(b), which pertains to this Court's diversity of citizenship jurisdiction under 28 U.S.C. § 1332, is inapplicable. Subsection (c) provides:

"The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or ...

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