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Don's Professional Services, LLC v. United States

United States District Court, E.D. New York

November 13, 2014

DON'S PROFESSIONAL SERVICES, LLC, BRENDA A. DELAPEÑA, and ABDON L. DELAPEÑA, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

Pending before the Court are: (1) a minute order of the Honorable A. Kathleen Tomlinson, United States Magistrate Judge, dated June 5, 2014 ("the Minute Order"), inter alia, recommending (a) that this action be dismissed for plaintiffs' continuing failure to comply with orders of the Court and to cooperate with their attorney in prosecuting this case, and (b) that Jerold Wolin, Esq., and the law firm of Wolin & Wolin (collectively, "Wolin"), be relieved as counsel for plaintiffs in this action; and (2) plaintiffs' "Motion to Reconsider Continuation of the Case against Individual Defendants, " which the Court construes to be objections to the Minute Order. For the reasons stated herein and in the Minute Order, plaintiffs' objections are overruled; Magistrate Judge Tomlinson's recommendations in the Minute Order are accepted in their entirety; Wolin is relieved as counsel for plaintiffs in this action; and this action is dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for plaintiffs' failure to comply with orders of the Court.

I. Recommendation that Wolin be Relieved as Plaintiffs' Counsel

A. Standard of Review

28 U.S.C. § 636(b)(1)(A) permits a district judge to "designate a magistrate judge to hear and determine any [nondispositive] pretrial matter, " not otherwise expressly excluded therein. Any party may serve and file objections to a magistrate judge's order on a nondispositive pretrial matter within fourteen (14) days after being served with a copy thereof. Fed.R.Civ.P. 72(a). Upon consideration of any timely interposed objections and "reconsider[ation]" of the magistrate judge's order, 28 U.S.C. § 636(b)(1)(A), the district judge must modify or set aside any part of the order that "is clearly erroneous or contrary to law." Id.; See also Fed.R.Civ.P. 72(a). A party may not assign as error any defect in a magistrate judge's order to which he or she has not timely objected. Fed.R.Civ.P. 72(a).

B. Objection

Plaintiff Abdon De La Pefña ("Abdon") avers that he would be "disadvantaged" by allowing his attorney to withdraw from representing plaintiffs in this case because he has "moved [his] position in reliance to said lawyer's assurance that [he] ha[s] the right to file for continued harassment by IRS agents[, ]" (Plaintiffs' "Joint Affidavit" ["Plf. Aff."] at 1, ¶ (c)).

Upon review of plaintiffs' objections, defendant's response thereto, the pleadings and all proceedings to date, and upon reconsideration of so much of the Minute Order as recommends relieving Wolin as plaintiffs' counsel in this case, I find that so much of the Minute Order as recommends relieving Wolin as plaintiffs' counsel in this case is not clearly erroneous or contrary to law. Accordingly, plaintiffs' objection to so much of the Minute Order as recommends relieving Wolin as their counsel in this case is overruled and that branch of the Minute Order is accepted in its entirety.

II. Recommendation that this Case be Dismissed

A. 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 Ins., 655 F.Supp.2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and citations omitted); see also Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211 (S.D.N.Y. 2013) (accord); 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)). 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 Corr, 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."); Libbey v. Village of Atlantic Beach, 982 F.Supp.2d 185, 199 (E.D.N.Y. 2013) ("[I]f 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)); 7- Eleven. Inc. v. Khan, 977 F.Supp.2d 214, 219 (E.D.N.Y. 2013) (accord).

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 Sent!y Ins. A Mut. Co. v. Brand Mgmt., Inc., 295 F.R.D. 1, 2 (E.D.N.Y. 2013); North Shore-Long Island ...


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