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James v. Central Casting N.Y.

United States District Court, S.D. New York

January 20, 2015

WAYNE J. JAMES, Plaintiff,


GEORGE B. DANIELS, District Judge.

Pro se Plaintiff Wayne J. James brings this action against Defendants GEP Cenex, LLC[1] ("GEP") and the Screen Actors Guild-American Federation of Television and Radio Artists One Union ("SAG-AFTRA"), alleging claims of improper business practices, lack of respect, unlawful termination, defamation, "[t]heft of creative literature and idea, " "[l]ack of union support and [r]epresentation, " and discrimination. (Compl. ¶¶ 16 §§ 1a-4d & 17 §§ 1-2, ECF No. 1.) Plaintiff's complaint seeks damages in the amount of $4 million for his allegedly wrongful termination by Defendant GEP, his union's failure to assist him with his claims, and for the unauthorized use of Plaintiff's lesson plan. ( Id. 12-13, 16 §§ 2a-3c, 21.) Defendant GEP moved to dismiss Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (GEP Mot., ECF No. 12.) On July 24, 2014, Magistrate Judge James C. Francis IV issued a Report and Recommendation ( "Report I" ) in which he recommended that this Court grant Defendant GEP's motion without prejudice to the Plaintiff filing an amended complaint. (ECF No. 22.) Thereafter, Plaintiff moved to amend his complaint, which Defendants GEP and SAG-AFTRA opposed. (Motion to Amend Compl., ECF No. 27; GEP Opp'n, ECF No. 29; SAG-AFTRA Opp'n, ECF No. 30.) On October 7, 2014, Magistrate Judge Francis issued a subsequent Report and Recommendation ( "Report II" ) in which he recommended that Plaintiff's motion be denied without prejudice to the filing of a further motion to amend the complaint, but only as to Defendant SAG-AFTRA. (ECF No. 32.) Before this Court are Magistrate Judge Francis's Reports, which are adopted in their entirety.


Plaintiff alleges that he was wrongfully terminated in April 2010 by Defendant GEP. (Compl. ¶ 1.) As a result of his termination, Plaintiff claims that he has been "[b]lacklisted" from the industry and that he has experienced difficulty in securing employment as a background actor. ( Id. ¶¶ 6, 19.) Plaintiff states that he did not receive any assistance from his union, Defendant SAG-AFTRA, in resolving his dispute with Defendant GEP. ( Id. ¶¶ 12-14.) Plaintiff paid $2, 300 to join SAG prior to its merger with AFTRA, and pays dues of approximately $160 to $200 to SAG-AFTRA every six months. ( Id. 17 §§ 1 & 2.) Plaintiff further alleges that Defendant GEP used a lesson plan he designed entitled "The Background Actor" without his consent. ( Id. ¶ 16 §§ 2a-2c.)


This Court may accept, reject, or modify, in whole or in part, the findings set forth in the Report. 28 U.S.C. § 636(b)(1)(C). When there are objections to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. ; see also Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court need not conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court "arrive at its own, independent conclusion" regarding those portions of the Report to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a Report, the Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quotation omitted).

The pleadings of parties appearing pro se are generally accorded leniency and should be construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. of N.Y.& N.J., 400 F.App'x 600, 601 (2d Cir. 2010) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)). Nonetheless, even a pro se party's objections must be specific and clearly aimed at particular findings in the Report, such that no party is allowed a "second bite at the apple" by merely relitigating a prior argument. Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023(LTS)(JCF), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (quotation omitted), aff'd, 367 F.App'x 210 (2d Cir. 2010). To the extent that a party's objection does reiterate a prior argument, or consists entirely of conclusory or general arguments, the Court should review the Report for clear error. McDonaugh v. Astrue, 672 F.Supp.2d 542, 547 (S.D.N.Y. 2009); DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339-40 (S.D.N.Y. 2009).

Magistrate Judge Francis advised the parties that failure to file timely objections to the Reports would constitute a waiver of those objections on appeal. ( Report I at 14-15; Report II at 15-16); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Plaintiff timely filed objections to each Report following their issuance. (Obj. I, ECF No. 24; Obj. II, ECF No. 33.) The objections to Report I notified the parties and the Court that Plaintiff would be amending his complaint. (See Obj. I at 1.) The objections to Report II are styled as an "Objection to the recommendation made by GEP Cenex, LLC, to dismiss [Plaintiff's] Motion to amend [his] complaint." ( See Obj. II at 3 (emphasis added).) These objections express frustration with Plaintiff's circumstances and lack of legal knowledge, and his general desire to "resolve this matter speed[ily]." ( See id. at 4-5.[2]) Because neither of these objections are specifically addressed to the conclusions reached by Magistrate Judge Francis, this Court therefore reviews the Reports for clear error.


A. Improper Business Practices, Lack of Respect, and Defamation Claims

Magistrate Judge Francis correctly recommended that the improper business practices, lack of respect[3], and defamation claims should be dismissed because Plaintiff has insufficiently alleged the necessary elements to sustain these causes of action. ( See Report I at 6, 9.) Construing the improper business practices claim as one for "unfair competition"[4] under New York law, Plaintiff must show "[1] the bad faith misappropriation of the labors and expenditures of another, [2] likely to cause confusion or to deceive purchasers as to the origin of the goods." See Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 34-35 (2d Cir. 1995). Because the complaint is devoid of any facts demonstrating bad faith and confusion, and thus that GEP engaged in unfair competition, Plaintiff's claim for improper business practices should be dismissed.[5] See id.

Plaintiff's claim for defamation, although timely brought within the one-year statute of limitations prescribed under N.Y. C.P.L.R. § 215(3), is similarly deficient because he has not pleaded "a false statement, published without privilege or authorization to a third party, constituting fault" which "cause[d] special harm or constitute[d] defamation per se." See Restis v. Am. Coalition Against Nuclear Iran, Inc., No. 13 Civ. 5032(ER), 2014 WL 5089413, at *6 (S.D.N.Y. Sept. 30, 2014) (quoting Peters v. Baldwin Union Free Sch. Dist., 320 F.3d 164, 169 (2d Cir. 2003)). The complaint does not plead the content of any alleged defamatory statement, let alone the other necessary elements for this cause of action. Dismissal of this claim is therefore warranted.

B. Unlawful Termination Claim

"New York does not recognize a claim for wrongful discharge of an at-will employee." Cruz v. HSBC Bank, USA, N.A., 5 F.Supp. 3d 253, 259 (E.D.N.Y. 2014) (citing Sullivan v. Harnisch, 19 N.Y.3d 259, 261 (2012)), aff'd, No. 14-990-CV, 2014 WL 4783383 (2d Cir. Sept. 26, 2014). Therefore, Report I properly found that Plaintiff's claim for ...

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