United States District Court, E.D. New York
J.A., an infant under 18 years of age, by and through his Guardian Ad Litem, BRUCE WOLF, Plaintiff,
SCO FAMILY OF SERVICES, Defendant.
REPORT & RECOMMENDATION, GRANTING MOTION TO
AMEND, and DENYING MOTION TO DISMISS
FEUERSTEIN, Senior District Judge.
before the Court is Magistrate Judge Shields' August 3,
2012 Report & Recommendation recommending granting
Plaintiff's Motion to Amend his complaint. (See
ECF No. 36.) In particular, she “finds that the Amended
Complaint sets forth a plausible claim that [defendant] SCO
could be a state actor liable under § 1983, ”
thereby rendering the Plaintiff's amendment not futile.
(Report & Recommendation at 7 (ECF No. 36); hereafter,
“Report”.) Magistrate Judge Shields also noted
her recommendation that Defendant consider withdrawing its
pending motion to dismiss without prejudice to renew upon
further discovery . . .” (Id. at 7 n.1.) For
the reasons that follow, the Court adopts Magistrate Judge
Shields' Report in its entirety.
September 22, 2016, Plaintiff J.A. (“Plaintiff”)
commenced this action against Defendant SCO Family of
Services (“Defendant”) alleging violations of his
civil rights under 42 U.S.C. § 1983 and negligence.
(See Complaint (ECF No. 1).) On October 13, 2016,
Defendant answered, denying Plaintiff's allegations and
raising fourteen affirmative defenses. (See Answer,
(ECF No. 7).) Defendant served Plaintiff with its Rule 12(c)
motion to dismiss on January 4, 2017. (See ECF No.
11; hereafter, “Dismissal Motion”.)
11, 2017, this case was consolidated with J.M. v. SCO
Family of Services, Case No. 17-cv-306 (ADS)(AKT)(the
“Related Case”) for purposes of discovery.
(See Minute Entry (ECF No. 26); see also
Related Case, Electronic Scheduling Order (D.E. dated
08/01/2017).) On January 31, 2017, Plaintiff filed a Motion
to Amend his complaint (see ECF No. 16; hereafter
“Amendment Motion”), which Defendant opposed on
the basis of futility (see ECF No. 20). On February
24, 2017, Defendant filed a Motion to Dismiss (see
ECF No. 25), claiming that Plaintiff failed to plead any
specific facts germane to his allegations against Defendant.
(See Memo. Supp. Dismissal Motion at 2 (ECF No.
25-2).) In opposition, Plaintiff asserts that the original
complaint and proposed amended complaint describe in detail
the numerous ways in which Defendant disregarded known and
apparent risks about Gonzales-Mugaburu. (See Id. at
7; see also Id. at 12 (quoting proposed amended
complaint for detailed description of alleged abuse).)
Judge Shields recognized that Plaintiff moved to amend his
complaint “solely to add factual allegations”
(Report at 1), and that the basis for doing so is the
similarity of allegations in this case and in the Related
Case. As Plaintiff's counsel represented at the July 11,
2017 status conference in the Related Case, it is from facts
learned in that case that Plaintiff moved to amend to add
additional factual allegations in this case.
Report was “provided to all counsel via ECF, ”
and the parties were directed they “must” file
any written objection to the Report “within fourteen
(14) days of [its] filing.” (Id. at 8; see
also Notice of Electronic Filing generated in
conjunction with ECF No. 36.) No objections to the Report
were filed and the time to do so has expired. (See
generally Docket, Case No. 16-cv-5269; see also
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2).)
Standard of Review
of the Federal Rules of Civil Procedure permits a magistrate
judge to conduct proceedings of dispositive pretrial matters
without the consent of the parties. See Fed. R. Civ.
P. 72(b). The district court may accept, reject, or modify,
in whole or in part, the findings and recommendations of the
magistrate judge. DeLuca v. Lord, 858 F.Supp. 1330,
1345 (S.D.N.Y 1994); see also 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Where there are no specific
written objections to a magistrate judge's report and
recommendation, the district court may accept the findings
contained therein as long as the factual and legal bases
supporting the findings are not clearly erroneous. See
Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472
(1985). Therefore, to accept the report and recommendation of
a magistrate judge on a dispositive matter to which no timely
objection has been made, the district judge need only be
satisfied that there is no clear error on the face of the
record. See Fed. R. Civ. P. 72(b); Johnson v.
Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007),
aff'd, 305 F. App'x 815 (2d Cir. 2009);
Baptichon v. Nevada State Bank, 304 F.Supp.2d 451,
453 (E.D.N.Y. 2004), aff'd, 125 F. App'x 374
(2d Cir. 2005).
objections to Magistrate Judge Shields' August 3, 2017
Report have been filed, and the deadline to do so has
expired. See 26 U.S.C. § 636(b)(1) (requiring
objections be filed within fourteen (14) days of being served
with a copy of a report and recommendation); Fed.R.Civ.P.
72(b)(2). Upon review, the Court is satisfied that the Report
is not facially erroneous, and it is adopted in its entirety.
IT IS ORDERED that Plaintiff's Amendment Motion is
granted. Plaintiff is directed to file his amended complaint
as a separate docket entry by September 15, 2017; and For
substantially the same reasons articulated by the Magistrate
Judge for granting the Amendment Motion, IT IS FURTHER