Witharana v. People of New York et al

Filing 21

MEMORANDUM AND ORDER: For the foregoing reasons, Witharana's objections are overruled and the Order is affirmed. Ordered by Judge Eric N. Vitaliano on 2/12/2014. c/m to pro se plaintff (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PASAN WITHARANA,

Plaintiff,

MEMORANDUM & ORDER
13-CV-3102 (ENV) (MDG)

-against-

HUGH DORSEY (NYPD Detective),
Defendant.

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VIT ALIANO, D.J.
Pro se plaintiff Pasan Witharana appeals from the July 9, 2013 Order of
Magistrate Judge Marilyn D. Go extending defendant Hugh Dorsey's time to
answer or otherwise respond to the complaint. 1 Judge Go granted the extension of
time!!!! sponte, in response to a letter from Tavish C. DeAtley, Assistant
Corporation Counsel for the City of New York. 2 (See Docket No.9.) For the
reasons stated below, plaintiff's objections are overruled and the Order is affirmed.

1

Although Witharana indicated that he was appealing Judge Go's decision to the United States
Court of Appeals for the Second Circuit (see Notice of Appeal, Docket No. 18), since courts of
appeals have jurisdiction only over final decisions of district courts, they "will not entertain
appeals from magistrate judge orders on nondispositive matters." C. Wright, A. Miller & E.
Cooper, !SA Fed. Prac. & Proc. Juris.§ 3901.1 (2d ed.); Travers v. Comm'r of Soc. Sec., 516 F.
App'x 41 (2d Cir. 2013). Accordingly, the Court construes Witharana's Notice of Appeal and
related submissions (see Docket Nos. 10, 12, 13, 14, 18) as an appeal of Judge Go's Order to this
Court.
2

The City ofNew York is an interested party in this case.

I

Discussion
The Court "may reconsider any pretrial matter ... where it has been shown
that the magistrate judge's order is clearly erroneous or contrary to law." 28
U.S. C. § 636(b)(1)(A). A party may object to a magistrate judge's pretrial order on
a nondispositive matter within 14 days of the order. 3 Fed. R. Civ. P. 72(a). "An
order is contrary to law 'when it fails to apply or misapplies relevant statutes, case
law, or rules of procedure."' Rathgaber v. Town of Oyster Bay, 492 F. Supp. 2d
130, 137 (E.D.N. Y. 2007) (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp.,
206 F.R.D. 78, 86 (S.D.N.Y. 2002)). Generally, "magistrate judges have broad
discretion to resolve nondispositive matters." Macaluso v. Keyspan Energy, 2007
U.S. Dist. LEXIS 33464 (E.D.N.Y. May 7, 2007).
Construing plaintiff's pro se submissions liberally, Witharana argues that
Judge Go improperly granted the defendant an extension of time to file an answer,
and, in particular, erred in granting the extension without first notifying plaintiff.
Plaintiff's objections, however, are without merit. "Federal Rule of Civil Procedure
6(b)(1) gives [courts] wide discretion to grant a request for additional time."
Ramashwar v. City of New York, 231 F. App'x 26,27-28 (2d Cir. 2007) (quotation
marks omitted). Here, Judge Go's exercise of discretion was eminently reasonable.
She granted the extension of time, in part, because plaintiff had not yet executed a
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Although plaintiff did not respond to Judge Go's July 9th Order until16 days after it was
entered (~Docket No. I 0), the Court must assume that plaintiff did not receive notice until
three days after it was mailed. Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.
1996); Fed. R. Civ. P. 6(d). Thus, assuming Witharana received notice on July 12, 2013, the
objections were timely filed.
2

medical release that the City indicated it needed to investigate the allegations of the
complaint. In fact, plaintiff still has not signed the medical release. (See Docket No.
20.) Moreover, courts are permitted to grant extensions of time "without notice to
or a response from" opposing parties if the request is filed before the original time
to respond expires, as was the case here. Regimbald v. General Elec. Go., 114 Fed.
App'x 441, 442 (2d Cir. 2004) (summary order) (noting that the district court was
not required to give notice or obtain a response from pro se plaintiff before granting
defendant's extension of time request). Accordingly, plaintiff fails to show any error
in the Order, let alone an error warranting this Court's intervention under Rule 72.
Conclusion
For the foregoing reasons, Witharana's objections are overruled and the
Order is affirmed.
So Ordered.
Dated: Brooklyn, New York
February 12, 2014

/

s/Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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