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Mallek v. Allstate Indemnity Co.

United States District Court, E.D. New York

July 31, 2018

EVA MALLEK, Plaintiff,



         Presently before the court is the Report and Recommendation of United States Magistrate Judge Sanket J. Bulsara, filed on March 12, 2018, recommending that plaintiff's Motion to Remand filed October 20, 2017, plaintiff's duplicative Motion to Remand filed February 13, 2018, and plaintiff's Motion for Sanctions filed February 21, 2018 be denied. (Report and Recommendation (“R&R”), ECF No. 26 at 1; Motion to Remand, ECF No. 9; Second Motion to Remand, ECF No. 21; Motion for Sanctions, ECF No. 22.)[1] On March 26, 2018, the plaintiff filed a joint Motion to Amend and Objections to the R&R which the Court interprets as a timely objection to the R&R and Motion to Amend. (Plaintiff's Motion to Amend and Objections to the Report and Recommendation, ECF No. 27.) Defendant Allstate Indemnity Company (“Allstate”) did not object to the R&R, but responded to plaintiff's objections to the R&R and opposed the Motion to Amend. (Defendant's Memorandum in Opposition, ECF No. 29; Defendant's Opposition to Plaintiff's Motion to Amend (ECF No. 27), ECF No. 30.) Familiarity with the factual background of this action, set forth in detail in the R&R, is assumed. (See ECF No. 26 at 1-3.)

         Legal Standard

         A. Objections to the Magistrate Judge's Report and Recommendation

         A district court “may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge” in a report and recommendation. 28 U.S.C. § 636(b)(1)(C). The court must review the portions of the R&R to which timely and proper objections are made de novo. 28 U.S.C. § 636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3). Objections to a report and recommendation “must point out the specific portions of the report and recommendation to which [that party] object[s].” U.S. Flour Corp. v. Certified Bakery. Inc., No. 10- CV-2522 (JS), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed.R.Civ.P. 72(b)(2) (“[A] party may serve and file specific written objections to the [R & R].”). However, if a party “makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Friedman v. Self Help Cmty. Servs., No. 11-CV-3210, 2015 WL 1246538, at *3 (E.D.N.Y. Mar. 17, 2015), aff'd sub nom. Friedman v. Self Help Cmty. Servs., Inc., 647 Fed.Appx. 44 (2d Cir. 2016); see also Manigaulte v. C.W. Post of Long Island Univ., 659 F.Supp.2d 367, 372 (E.D.N.Y. 2009); Baptichon v. Nev. State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y. 2004), aff'd, 125 Fed.Appx. 374 (2d Cir. 2005); Fortgang v. Pereiras Architects Ubiquitous LLC, No. 16-CV-3754, 2018 WL 1505564, at *2 (E.D.N.Y. Mar. 27, 2018); Frankel v. City of New York, No. 06-CV-5450, 2009 WL 465645, at *2 (S.D.N.Y. Feb.25, 2009); Fed.R.Civ.P. 72(b).

         Additionally, “even in a de novo review of a party's specific objections, the court ordinarily will not consider arguments, case law and/or evidentiary material which could have been but [were] not, presented to the magistrate judge in the first instance.” U.S. Flour Corp., 2012 WL 728227, at *2 (citing Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).

         B. Motion to Amend Pleadings

         “Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading ‘shall be freely given when justice so requires.'” Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002)(citing Fed.R.Civ.P. 15(a).) However, “[w]here it appears that granting leave to amend is unlikely to be productive . . . it is not an abuse of discretion to deny leave to amend.” Id. (citing Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (per curiam)). Where an amendment has no merit and is thus futile, leave to amend should be denied. Id. (citing Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir.1990)). An amendment to a complaint is futile where the proposed claim could not survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss. Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain sufficient facts, that if accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint providing only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A pro se complaint must be construed liberally to raise the strongest claim it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, it must still satisfy the same pleading requirements and, “[b]ald assertions and conclusions of law are not adequate to withstand a motion to dismiss.” Wilson v. Dalene, 699 F.Supp.2d 534, 554 (E.D.N.Y. 2010)(citations omitted).


         The plaintiff objected to the R&R issued by Judge Bulsara on three overarching bases: 1) defendant Schaefer was properly joined, 2) the citizenship of Allstate's attorneys rendered removal improper, and 3) she was entitled to sanctions against the defendants. In her Motion to Amend and Objections to the R&R, the plaintiff argued that the decision to deny remand was “solely based on the argument that 1) Cellilli and Skarzynski had never been mentioned, and 2) that Schaefer is not accountable for non-contractual offenses . . . and on torts of misleading/fraudulent advertising.” (ECF No. 27 at ¶ 95.)

         In her submissions, plaintiff offered only conclusory statements and a few inapposite cases to support her argument that the defendants she alleged were properly joined had breached the insurance contract, and that they did so in a tortious fashion. (Id. at ¶¶ 5-17.) Plaintiff also cursorily addressed issues extensively and correctly analyzed by the magistrate judge in recommending against remand, including fraudulent joinder and the home state bar to remand. Plaintiff dedicated substantial portions of her objection to describing an alleged conspiracy between the insurance industry and the National Association of Insurance Commissioners to implement and uphold unjust laws, (Id. at ¶¶ 18-24, ) and conclusory statements regarding the unconscionability of the insurance contract at issue and of New York insurance laws that provide limits on damages. (Id. at ¶¶ 27-42.)

         Plaintiff's conclusory statements and general objections overly simplify the analysis in the R&R and reiterate arguments made by the plaintiff earlier in the record that Judge Bulsara considered prior to issuing the R&R. As the objections are conclusory and repetitive, they are subject to clear error review. See Friedman, 2015 WL 1246538, at *3. Nonetheless, even upon de novo review, the court adopts Judge Bulsara's thorough and well-reasoned analysis.

         The court, on de novo review, agrees with and entirely adopts the R&R's detailed analysis of potential claims that could be inferred from the pro se Complaint, liberally construed, to determine if any valid cause of action exists against Schaefer such that plaintiff could potentially be entitled to relief against Schaefer in New York State Court. (See ECF No. 26 at 6-17.) Upon such analysis, the court agrees with Judge Bulsara's conclusion that although the plaintiff's complaint could be liberally construed to allege causes of action for breach of contract, gross negligence and defamation, based on ...

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