Burton v. Shinseki et al

Filing 80

ORDER ADOPTING REPORT AND RECOMMENDATION, For the reasons stated above, Magistrate Judge Bloom's Report and Recommendation dated 4/13/12, recommending that this Court dismiss this case pursuant to Rule 37 of the FRCP, is adopted in its entirety. This action is dismissed with prejudice and the Clerk of Court is directed to enter judgment in accordance with this Order and to close this case. Pltff is advised that because shall failed to file a timely objection to the R&R, she has waived the right to appeal this Court's Order. (Ordered by Judge Sandra L. Townes on 7/23/2012) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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IN C!.ERi<'S OFFICE
D.iSTiiiC r COURT ED.N.

JUL 2 5 2012

iR00K£.YN OFFICE

ANN BURTON,
Plaintiff,

ORDER ADOPTING REPORT
AND RECOMMENDATION

-againstERIC K. SHINSEKI, Secretary ofthe Department
of Veterans Affairs Agency, eta/.,

I 0-CV -5318 (SLT)(LB)

Defendants.

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TOWNES, United States District Judge:

In a Report and Recommendation dated Apri113, 2012 (the "R&R"), Magistrate Judge

Lois Bloom recommended that this Court dismiss this case pursuant to Rule 3 7 of the Federal
Rules of Civil Procedure as a sanction for plaintiffs failure (1) to respond to defendants'
discovery requests, (2) to appear for her deposition and (3) to comply with Court orders regarding
her noncompliance with these discovery obligations. The R&R specifically advised plaintiff that
she had fourteen days from service ofthe R&R in which to file written objections. R&R at 8
(citing 28 U.S.C. §636(b)(1)). The R&R also warned plaintiff that if she failed to file a timely
objection, she would be waiving any further judicial review. !d.
According to the docket sheet, the Clerk's Office served a copy of the R&R on plaintiff on
April 13, 2012, by mailing a copy of that document to the address which plaintiff had provided to
the Court. That mailing, along with several other mailings, were subsequently returned to the
Court as undeliverable. Plaintiff never filed objections to the R&R.
Although it seems likely that plaintiff never actually received a copy of the R&R,
service of the R&R was nonetheless complete on April13, 2012- the day it was mailed. Rule
77(d) of the Federal Rules of Civil Procedure requires that the Clerk of Court effect service "as
provided by Rule S(b)." Rule S(b) provides that service may be effected by, among other

methods, "mailing it to the person's last known address- in which event service is complete
upon mailing." Fed. R Civ. P. 5(b)(2)(C). Despite the fact that plaintiff never received the
mailing, due process was satisfied because the means of notification utilized by the Clerk's
Office- namely, mailing the motion papers to plaintiffs last known address- was reasonably
calculated to provide plaintiff with actual notice of the R&R See Sanders v. New York City

Dept. of Correction, 376 Fed. Appx. 151 (2d Cir. May 12, 2010) (summary order); see also
Grievance Comm. v. Polur, 67 F.3d 3, 6 (2d Cir.l995) (quoting Mullane v. Cent. Hanover Bank
& Trust Co., 339 U.S. 306,315 (1950)) ("The proper focus of the due process inquiry is not

whether notice ... was actually received but whether the means selected were 'such as one
desirous of actually informing the [litigant] might reasonably adopt to accomplish it. "'). 1
Because plaintiff did not file objections to the R&R within the 14-day period prescribed
by 28 U.S.C. §636(b)(l ), this Court is not legally obligated to review the R&R See Thomas v.

Arn, 474 U.S. 140, 150 (1985) (district court not required to review the factual or legal
conclusions of the magistrate judge as to those portions of a report and recommendation to which
no objections are addressed). However, even when no objections are filed, many courts seek to
satisfY themselves "that there is no clear error on the face of the record." Fed. R Civ. P. 72(b)
advisory committee note (1983 Addition); see also Edwards v. Town ofHuntington, No. 05 Civ.
339 (NGG) (AKT), 2007 WL 2027913, at *2 (E.D.N.Y. July 11, 2007). Accordingly, although
not required to do so, this Court has reviewed Judge Bloom's R&R for clear error on the face of
1

Although plaintiff is proceeding pro se, a pro se litigant is not exempt from the
obligation to notifY the court of his or her changes of address. See Canario-Duran v. Borecky,
No. 10-CV-1736 (DLI)(LB), 2011 WL 176745, at *1 (E.D.N.Y. Jan. 19, 2011). Accordingly,
"[w]hen a prose litigant fails to provide the court with notice of a change of address and misses
an important deadline as a result of this failure, the court may deny that litigant relief." !d.

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the record. The Court finds no clear error, and therefore adopts the R&R in its entirety pursuant
to 28 U.S.C. § 636(b)(1).
CONCLUSION
For the reasons stated above, Magistrate Judge Bloom's Report and Recommendation
dated Aprill3, 2012, recommending that this Court dismiss this case pursuant to Rule 37 of the
Federal Rules of Civil Procedure, is adopted in its entirety. This action is dismissed with
prejudice and the Clerk of Court is directed to enter judgment in accordance with this Order and
to close this case. Plaintiff is advised that because she failed to file a timely objection to the
R&R, she has waived the right to appeal this Court's Order. See 28 U.S.C. § 636(b)(l); Small v.

Sec 'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
SO ORDERED.

-------------------/SANDRA L. iUWJ'<c.:>
United States District Judge

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Dated: July
2012
Brooklyn, New York

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