United States District Court, S.D. New York
SEAN G. FELDER, Plaintiff,
MADISON SQUARE GARDEN, et al., Defendants.
MEMORANDUM DECISION AND ORDER
B. DANIELS United States District Judge
se Plaintiff Sean Felder filed this action against
Madison Square Garden and Radio City Music Hall claiming that
Defendants terminated his employment as a security guard and
retaliated against him, in violation of his rights under
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17 ("Title VII"), and that
Defendants engaged in "unfair labor practices."
(Compl, ECF No. 1; Second Am. Compl., ECF No. 14.) Defendants
moved to dismiss the Second Amended Complaint. (Defs.'
Mot. to Dismiss ("Mot."), ECF Nos. 26-29.)
matter was referred to Chief Magistrate Judge Debra Freeman.
(ECF No. 19.) Before this Court is Magistrate Judge
Freeman's Report and Recommendation ("Report, "
ECF No. 46), recommending that this Court grant
Defendants' motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6) with limited leave to
amend. (Id. at 2.)
Report, Magistrate Judge Freeman advised the parties that
failure to file timely objections to the Report would
constitute a waiver of those objections on appeal.
(Id. at 30-31); see also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
filed a timely objection to the Report. (See Defs.' Obj.
to Report ("Defs.' Obj."), ECF No. 48.) This
Court overrules Defendants' objection and fully adopts
Magistrate Judge Freeman's recommendation.
Defendants' motion to dismiss is GRANTED with limited
leave to amend.
district court may accept, reject or modify, in whole or in
part, the findings and recommendations set forth within the
Report. See 28 U.S.C. § 636(b)(1)(C). When no
objections to the Report are made, 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) (citation omitted).
there are objections to the Report, this Court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). It is sufficient that this Court "arrive at its
own, independent conclusions" regarding those portions
to which objections were made. Nelson v. Smith, 618
F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (internal citation
omitted)); see United States v. Raddatz, 447 U.S.
667, 675-76 (1980). However, where a litigant's
objections are conclusory, repetitious, or perfunctory, the
standard of review is clear error. McDonaugh v.
Astrue, 672 F.Supp.2d 542, 547-48 (S.D.N.Y. 2009).
February 7, 2017, this Court received a letter from Plaintiff
stating, inter alia, "let's take the case
to trial since MSG doesn't want to settle." On March
7, 2017, this Court received another letter from Plaintiff
stating, inter alia, "MSG attorney Joseph
Nuccio has really disrespected me, [and] the court by not
offering a settlement to resolve the case." In that
letter, Plaintiff also requested that this Court
"confirm Pro Bono counsel so settlement negotiations can
happen." Other than these two letters-which do not
object to any specific portion of Magistrate Judge
Freeman's Report-Plaintiff filed no objection or response
to Defendants' objection to the Report.
PLAINTIFF FAILS TO STATE A CLAIM
Report properly held that Plaintiff failed to state a claim
under Federal Rule of Civil Procedure 12(b)(6) for Title VII
and Fair Labor Standards Act claims. There was no clear error
in Magistrate Judge Freeman's findings. Defendants object
only to the portion of the Report recommending Plaintiff be
granted an opportunity to set forth a "discriminatory
denial-of-hours claim." (Defs.' Obj. at 2.) This
court reviews that portion of the Report de novo.
See 28 U.S.C. § 636(b)(1)(C); see also Rivera
v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y. 2006).
all Plaintiffs submissions liberally suggests that a
discriminatory denial-of-hours claim might be viable. For
example, Plaintiff alleges that his hours were reduced by a
supervisor who "gave more work to Hispanic workers"
and alleges "preferential treatment" for Hispanic
employees. (See Report at 26 (citing NYC CHR Compl.,
¶ 6; Second Amended Compl., § 11(E); PI. Opp. to
Defs. Mot. to Dismiss, at 1).) Defendants urge this Court not
to give Plaintiff "multiple bites at the apple"
because Plaintiff has already been given several
opportunities to amend his pleadings. (Def.'s Obj. at 2.)
However, the pleadings of pro se parties 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) (internal citation and
quotation marks omitted). Accordingly, Plaintiff shall have
one final opportunity to file a further amended pleading,
solely for the purpose of attempting to assert a
discriminatory denial-of-hours claim.
reviewed Magistrate Judge Freeman's Report and
Recommendation, this Court overrules Defendants'