United States District Court, E.D. New York
BARBARA J. RILEY, pro se, Plaintiff,
PATRICIA A. RIVERS a/k/a PATRICIA A. HAMM a/k/a PATRICIA A. ELLIS, ROBERT HAMM a/k/a ROBERT D. HAMM, FEDERAL NATIONAL MORTGAGE ASSOCIATION, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INCORPORATED, Defendants.
SUMMARY ORDER ADOPTING REPORT &
L. IRIZARRY, Chief United States District Judge
Barbara J. Riley (“Plaintiff”), proceeding
pro se, filed this action against defendants
Patricia A. Rivers (“Rivers”), Robert Hamm,
Federal National Mortgage Association (“Fannie
Mae”), and Mortgage Electronic Registration Systems,
Inc. (“MERS”) (collectively
“Defendants”) asserting three claims: (1) to
quiet title to real property located at 115-60
132ndStreet, South Ozone Park, New York 11420; (2)
tortious interference with contract; and (3) fraud. (See
generally Second Amended Complaint (“SAC”),
Dkt. Entry No. 31.)
to Rule 12 of the Federal Rules of Civil Procedure,
Defendants moved to dismiss the SAC for failure to state a
claim for relief. (See Rivers Mem. in Supp. of Mot.
to Dismiss, Dkt. Entry No. 48; Fannie Mae Mem. in Supp. of
Mot. to Dismiss, Dkt. Entry No. 51; MERS Mem. in Supp. of
Mot. to Dismiss, Dkt. Entry No. 55.) Plaintiff opposed.
(See Pl.'s Resp. in Opp'n to Mot. to
Dismiss, Dkt. Entry No. 56.)
16, 2016, Defendants' motions to dismiss were referred to
the Hon. Roanne L. Mann, Chief U.S.M.J, for a Report and
Recommendation (“R & R”), which she issued on
September 19, 2016. The magistrate judge recommended that
Defendants' motions to dismiss be granted with prejudice.
(See generally R & R, Dkt. Entry No. 65.) The
magistrate judge determined that dismissal was warranted
because: (1) Plaintiff's claim to quiet title was both
time barred and legally deficient as Plaintiff could not
demonstrate a legal interest in the subject property; (2)
Plaintiff failed to demonstrate the existence of a valid
contract, Defendants' actual knowledge of the contract
and breach thereof; and (3) Plaintiff's fraud claim was
time barred and failed to meet the heightened pleading
standards of Federal Rule of Civil Procedure 9(b).
(See R & R at 11-18.) On September 29, 2016,
Plaintiff timely objected to the R & R and, on October 4,
2016, filed a motion seeking to set aside and/or to void the
R & R under Rule 60 of the Federal Rules of Civil
Procedure. (See Pl.'s Objs. to R & R
(“Objs.”), Dkt. Entry Nos. 66, 67.) MERS and Fannie
Mae filed responses to Plaintiff's objections on October
20, 2016. (See Dkt. Entry Nos. 68, 69.) On October
27, 2016, Plaintiff filed a motion to strike MERS's and
Fannie Mae's responses as untimely. (See
Dkt. Entry No. 70.) For the reasons set forth below, the R
& R is adopted in its entirety.
party objects to an R & R, a district judge must make a
de novo determination as to those portions of the R
& R to which a party objects. See Fed. R. Civ.
P. 72(b)(3); United States v. Male Juvenile, 121
F.3d 34, 38 (2d Cir. 1997). However, if a party “simply
relitigates his original arguments, the Court reviews the
Report and Recommendation only for clear error.”
Antrobus v. New York City Dep't of Sanitation,
2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal
citations and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
objections of parties appearing pro se are
‘generally accorded leniency' and should be
construed ‘to raise the strongest arguments that they
suggest.'” Williams v. Woodhull Med. &
Mental Health Ctr., 891 F.Supp.2d 301, 310 (E.D.N.Y.
2012) (internal citation omitted). However, even a pro
se party's objections “must be specific and
clearly aimed at particular findings in the magistrate's
proposal, ” Antrobus, 2016 WL 5390120, at *2
(internal citation and quotation marks omitted), and
“an objection to a report and recommendation in its
entirety does not constitute a specific written objection
within the meaning of Rule 72(b).” Id.
(internal citation and quotation marks omitted).
Plaintiff's objections are a prime example of an improper
objection to an R & R that fails to set forth a specific
and clear objection aimed at a particular finding in the
magistrate judge's decision. Throughout her objections,
Plaintiff asserts: (1) that the Court lost subject matter
jurisdiction when Rivers allegedly did not comply with a
scheduling order requiring her to move or answer
Plaintiff's SAC by November 30, 2015; (2) Defendants
defaulted because they did not file their motions to dismiss
the SAC timely; (3) the district judge lacked the authority
to refer Defendants' motions to the magistrate judge; (4)
the Court was biased and prejudiced against Plaintiff; (5)
the magistrate judge did not decide Plaintiff's claims on
the merits; and (6) Defendants' motions were legally
defective because they included attorney declarations. (Objs.
Dkt. Entry No. 66, at 2-4; Dkt. Entry No. 67, at 7-8.)
Construing these objections broadly and leniently, they do
not challenge a specific finding in the R & R, but
instead are general and conclusory. Indeed, Plaintiff's
objections do not allege that any finding in the R & R is
either legally or factually incorrect, and Plaintiff provides
no basis why the Court should reject the R & R.
Accordingly, the Court reviews the R & R to determine
whether it is clearly erroneous. See Antrobus, 2016
WL 5390120, at *2.
the Court need not consider Plaintiff's objection that
Defendants' motions were legally defective because this
is a new argument Plaintiff should have asserted in her
opposition to Defendants' motions to dismiss. Generally,
“a district judge will not consider new arguments
raised in objections to a magistrate judge's report and
recommendation that could have been raised before the
magistrate but were not.” Fisher v.
O'Brien, 2010 WL 1286365, at *1 (E.D.N.Y. Mar. 30,
2010) (internal citation and quotation marks omitted). This
rule applies even to submissions by pro se
litigants. See DeMarco v. Hartford Life & Acc. Ins.
Co., 2014 WL 3490481, at *1 (E.D.N.Y. July 11, 2014).
Plaintiff did not include her new argument in her original
opposition papers; therefore, the Court does not consider it.
See DeMarco, 2014 WL 3490481, at *1 (noting that new
argument raised for the first time in objections “is
not properly before the court”).
review, the Court finds no clear error in the magistrate
judge's thorough and well reasoned R& R. Accordingly,
the Court adopts the R & R in its entirety. Moreover,
even if this Court were to conduct a de novo review,
it would reach the same conclusion. See Morris v. Local
804, Int'l Bhd. of Teamsters, 167 F. App'x 230,
232 (2d Cir. 2006) (Summary Order) (noting that, even when
exercising de novo review “[t]he district
court need not, however, specifically articulate its reasons
for rejecting a party's objections or for adopting a
magistrate judge's report and recommendation in its
due consideration, Plaintiff's objections to the R &
R are overruled. The R & R is adopted in its entirety and
this action is dismissed with prejudice. The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from
this Summary Order would not be taken in good faith, and
therefore in forma pauperis status is denied for
purposes of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).