Garrett v. Parker et al

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court has reviewed Judge Orenstein's unopposed R&R and, finding no clear error, the Court adopts the R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). This action is dismissed for failure to timely substitute a decedent under Rule 25 of the Federal Rules of Civil Procedure. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 1/24/2017. (Haji, Sara)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------MICHAEL GARRETT,
Plaintiff,

ORDER
15-CV-6951 (MKB) (JO)

v.
ROBERT H. PARKER, ESQ., the estate of
ROBERT H. PARKER, ESQ., JOHN DOE and
JOHN DOE INSURANCE CO.,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Michael Garrett, proceeding pro se, commenced this action on December 2,
2015, alleging several severe breaches of attorney-client representation agreements by his
attorney, Robert H. Parker (“Parker”), in an unrelated civil suit. 1 (Compl., Docket Entry No. 1.)
Plaintiff alleged that he had retained Parker as counsel in a case against the City of New York,
and that Parker repeatedly refused to disclose to him the status of that case, settled the case
without Plaintiff’s authority, cashed the settlement proceeds for his own use and attempted to
bribe and then blackmail Plaintiff not to report his actions. (Compl. 1–3.)
Plaintiff died on February 28, 2016, as noted on the record of another case in this district
to which he was party. See Order Granting Mot. to Vacate as to Michael Garrett, United States
v. Rivera, 13-CR-149, No. 13-CR-149 (E.D.N.Y. Mar. 21, 2016), Docket Entry No. 512. Based
on this suggestion of death on the record, Magistrate Judge James Orenstein directed Plaintiff’s

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Plaintiff also filed suit against Parker’s estate, a John Doe financier, and a John Doe
insurance company, whom Plaintiff alleged were involved in withholding Plaintiff’s settlement
proceeds from an unrelated civil suit.

successor or representative to file a motion for substitution in this action before September 14,
2016, in order to continue the suit. See Order dated June 16, 2016. Judge Orenstein’s order was
mailed to Plaintiff’s mother. No motion was filed.
By Report and Recommendation dated September 15, 2016 (the “R&R”), Judge
Orenstein recommended that the Court dismiss Plaintiff’s claims pursuant to Rule 25 of the
Federal Rules of Civil Procedure, which requires that when a party’s death is suggested on the
record, a proper party be substituted for the decedent “within 90 days after service of a statement
noting the death.” (R&R 1, Docket Entry No. 7 (citing Fed. R. Civ. P. 25(a)(1))); see also
Kaplan v. Lehrer, 173 F. App’x 934, 935–36 (2d Cir. 2006) (affirming the dismissal of the
plaintiff’s claims for failure to substitute a proper party after his death). No party or proper
substitute has opposed the R&R.
A district court reviewing a magistrate judge’s recommended ruling “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)(C). “Failure to object to a magistrate judge’s report and recommendation
within the prescribed time limit ‘may operate as a waiver of any further judicial review of the
decision, as long as the parties receive clear notice of the consequences of their failure to
object.’” Sepe v. N.Y. State Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F. App’x
107, 109 (2d Cir. 2013) (“As a rule, a party’s failure to object to any purported error or omission
in a magistrate judge’s report waives further judicial review of the point.” (quoting Cephas v.
Nash, 328 F.3d 98, 107 (2d Cir. 2003))); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,
Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate

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review of a decision in a magistrate judge’s report and recommendation if the party fails to file
timely objections designating the particular issue.” (citations omitted)).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Orenstein’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). This action is
dismissed without prejudice for failure to timely substitute a decedent pursuant to Rule 25 of the
Federal Rules of Civil Procedure. The Clerk of Court is directed to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: January 24, 2017
Brooklyn, New York

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