United States District Court, S.D. New York
CHRISTINE D. LEDERHOUSE, Plaintiff,
v.
LANDAU ARNOLD LAUFER LLP JOHN DOEs and DANIEL FISCHER, a/k/a DAN FISCHER, and a/k/a DB FISCHER LLC, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
ANALISA TORRES, DISTRICT JUDGE
This
case arises out of Plaintiff's failure to recover in
bankruptcy proceedings the money she lent to a construction
company, Aloia Construction Co. (“ACC”), and an
individual, Thomas Aloia. Plaintiff pro se,
Christine D. Lederhouse, filed this action in 2015 alleging
that the accountants of ACC and Aloia, Defendants Landau
Arnold Laufer, LLP and Daniel Fisher, committed several acts
of fraud in violation of state law and the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), by giving Plaintiff false information
regarding ACC and Aloia's financial condition. Am Compl.
at 16-19, ECF No. 4. Plaintiff sought leave to file a second
amended complaint and to add additional parties, Pl. Mem.,
ECF No. 37, and Defendants cross-moved for judgment on the
pleadings, Defs. Mem., ECF No. 45. The Court referred the
motions to the Honorable Stewart D. Aaron. On March 3, 2018,
Judge Aaron issued a well-reasoned Report and Recommendation
(“R&R”) that concluded that Defendants'
motion should be granted and Plaintiff's motion should be
denied because there is no legal basis for her case, which is
time barred in any event. R&R at 1, ECF No. 55. The Court
received Plaintiff's mailed objections on March 27, 2018,
Pl. Obj., ECF No. 60. On March 30, 2018, Defendants filed a
response. ECF No. 58.[1] For the following reasons, Plaintiff's
objections are OVERRULED, and the R&R is ADOPTED in its
entirety.
DISCUSSION[2]
I.
Legal Standards
A.
Review of R&R
A
district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
“Courts review de novo those parts of a report
and recommendation to which objections are made,
Mulosmanaj v. Colvin, No. 14 Civ. 6122, 2016 WL
4775613, at *2 (S.D.N.Y. Sept. 14, 2016), and the remainder
for clear error on the face of the record, Rigano v.
Astrue, No. 07 Civ. 10282, 2011 WL 1406185, at *4
(S.D.N.Y. Mar. 30, 2011). In order to trigger de novo review,
“objections must be specific and clearly aimed at
particular findings in the magistrate judge's
proposal.” McDonaugh v. Astrue, 672 F.Supp.2d
542, 547 (S.D.N.Y. 2009).
B.
Judgment on the Pleadings
Because
Defendants have already answered, they style their motion as
a motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c).
For
Rule 12(c) motions, the Court applies “the same
standard as that applicable to a motion under Rule 12(b)(6),
” Sheppard v. Beerman, 18 F.3d 147, 150 (2d
Cir. 1994), meaning that a court “must accept all
allegations in the complaint as true and draw all inferences
in the non-moving party's favor, ” LaFaro v.
N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d
Cir. 2009) (quoting Miller v. Wolpoff & Abramson,
LLP, 321 F.3d 292, 300 (2d Cir. 2003)). “Only a
complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. at 476; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation
omitted) (“[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.'” (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007))). “A claim has ‘facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Parkcentral Glob.
Hub Ltd. v. Porsche Auto. Holdings SE, 763 F.3d 198, 208
(2d Cir. 2014) (per curiam) (quoting Iqbal, 556 U.S.
at 678).
C.
Motion to Amend or Add New Parties
Rule
15(a)(2) of the Federal Rules of Civil Procedure provides
that courts “should freely give leave” to amend a
complaint “when justice so requires.” Pro
se litigants “should be afforded every reasonable
opportunity to demonstrate that [they have] a valid
claim.” Matima v. Celli, 228 F.3d 68, 81 (2d
Cir. 2000) (quoting Satchell v. Dilworth, 745 F.2d
781, 785 (2d Cir. 1984)). A court “should not dismiss
[pro se complaints] without granting leave to amend
at least once when a liberal reading of the complaint gives
any indication that a valid claim might be stated.”
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)). However, leave to amend may properly be
denied for futility of amendment. Ruotolo v. City of New
York, 514 F.3d 184, 191 (2d Cir. 2008) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962)); see also Martin
v. Dickson, 100 F. App'x 14, 16 (2d Cir. 2004)
(summ. order) (affirming denial of leave to amend to a
plaintiff pro se on futility grounds).
“Although Rule 21, and not Rule 15(a), normally governs
the addition of new parties to an action, ” FTD
Corp. v. Banker's Tr. Co., 954 F.Supp. 106, 109
(S.D.N.Y. 1997), “the showing necessary under Rule 21
is the same as that required under Rule 15(a), ”
Johnson v. Bryson, 851 F.Supp.2d 688, 703 (S.D.N.Y.
2012).
D.
Pro Se Litigants
Pro
se litigants are entitled to “special solicitude,
” and the court will construe a pro se
“complaint to raise the strongest claims that it
suggests.” Williams v. Priatno, 829 F.3d 118,
122 (2d Cir. 2016) (quoting Hill v. Curcione, 657
F.3d 116, 122 (2d Cir. 2011)). Nonetheless, pro se
status “does not exempt a party from compliance with
relevant rules of procedural and substantive law.”
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