Ramon v. Corporate City of New York et al

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the attached Memorandum and Order, the court adopts Judge Gold's well-reasoned and thorough R&R in its entirety and dismisses plaintiff's action. The Clerk of Court i s respectfully directed to enter judgment, to mail a copy of this Memorandum and Order, the judgment and an appeals packet to pro se plaintiff, note service on the docket, and close the case. Ordered by Judge Kiyo A. Matsumoto on 3/21/2019. (Abugo, Uzezi)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
JUAN RAMON d/b/a Juan Candelaria,

MEMORANDUM & ORDER
ADOPTING R&R
& DENYING MOTION
FOR SURREPLY

Plaintiff,
-against-

17-CV-2307(KAM)

CORPORATE CITY OF NEW YORK et al.,
Defendants.
--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:
Presently before the court is the Report and
Recommendation of United States Magistrate Judge Steven M. Gold,
filed on January 1, 2019, which recommends granting defendants’
motions to dismiss plaintiff’s Second Amended Complaint (“SAC”),
filed February 28, 2019.

(ECF No. 62, Report and Recommendation

(“R&R”); ECF No. 41, New York Notice of Motion to Dismiss; ECF
No. 52, Miami Dade Notice of Motion to Dismiss; ECF No. 31,
Second Amended Complaint (“SAC”).) 1

On January 24, 2019,

plaintiff filed an untimely objection to the R&R, the objections
to which were to be filed by January 16, 2019. 2

(See R&R at 13;

Citations to page numbers in documents filed on the court docket using the
Electronic Court Filing System (“ECF”) refer to the page numbers assigned by
ECF unless otherwise noted.
2 Although plaintiff dated his Objections to the R&R January 14, 2019, and
asserts that he mailed his Objections to the R&R to the parties on January
14, 2019, the record indicates that plaintiff’s Objections were not timely
filed. The face of the package containing plaintiff’s Objections was filed
1

1

ECF No. 64, Plaintiff’s Objections to the Report and
Recommendation (“Pl. Objections”).)

Defendants City of New York

and its executive officers, agents, employees, and those acting
in concert with them (the “New York defendants”) and Miami-Dade
County and its executive officers, agents, employees, and those
acting in concert with them (the “Miami defendants”) did not
object to the R&R, but on February 6, 2019, defendants jointly
responded to plaintiff’s objections to the R&R and asked the
court to disregard plaintiff’s objections as they were not
timely filed.
at 1.)

(ECF No. 66, Defendants’ Memorandum in Opposition

Familiarity with the factual background of this action,

set forth in detail in the R&R, is assumed.

(See R&R at 2-4.)

I. 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.
636(b)(1)(C).

28 U.S.C. §

The court must review the portions of the R&R to

which timely and proper objections are made de novo.
§ 636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3).

28 U.S.C.

Objections to a

by the Clerk of Court as an attachment to plaintiff’s submissions, ECF No.
64-7 at 1, and clearly shows that plaintiff’s Objections were mailed on
January 23, 2019, from a United States Postal Service Retail Location via
“Priority Mail 1-Day” with an expected delivery date of January 24, 2019, the
date the court received plaintiff’s Objections.

2

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, 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].”).

If a party “makes only

conclusory or general objections,” however, or only reiterates
his original arguments, the court shall review the R&R 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 F. App'x 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 F. App’x 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
b. Motion to Dismiss
The New York City and Miami-Dade County defendants
moved to dismiss the SAC pursuant to Federal Rule of Civil

3

Procedure 12(b)(6). 3

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 basic 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).
In deciding a motion to dismiss pursuant to Rule
12(b)(6), the court may refer to “documents attached to the
complaint as an exhibit or incorporated in it by reference, to
matters of which judicial notice may be taken, or to documents
either in plaintiffs’ possession or of which plaintiffs had
knowledge and relied on in bringing suit.”

Brass v. Am. Film

3 The court referred the motions to Magistrate Judge Steven M. Gold for a report
and recommendation.
(See Docket Order Referring City of New York Motion to
Dismiss, dated October 12, 2018; Docket Order Referring Miami Dade Motion to
Dismiss, dated October 17, 2018.)

4

Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (internal
citations omitted).
c. Motion to File Sur-reply
“Motions for leave to file sur-reply information are
subject to the sound discretion of the court.”

Anghel v. New

York State Dep't of Health, 947 F. Supp. 2d 284, 293 (E.D.N.Y.
2013), aff'd, 589 F. App’x 28 (2d Cir. 2015) (citation omitted).
A sur-reply is appropriate only where the party against whom the
sur-reply will be filed raises new arguments in its reply. Id.
II.

Discussion

Plaintiff’s Second Amended Complaint stated six claims
for relief:
(1) spoliation of evidence related to defendants’
allegedly disposing of certain records and documents,
SAC ¶¶ 71–73, (2) violation of the Uniform Criminal
Extradition Act (“UCEA”), as adopted by both New York
and Florida, id. ¶¶ 74–78, . . . the Extradition Act
of 1793 (“Extradition Act”) and [the] Extradition
Clause of the United States Constitution (“Extradition
Clause”), id. ¶¶ 79–80, related to his allegedly
wrongful extradition, (3) common law fraud related to
the allegedly fraudulent scheme by which defendants
accomplished plaintiff’s arrest and extradition, id.
¶¶ 81–94, (4) false arrest in violation of the Fourth
Amendment, id. ¶¶ 95–96, (5) conspiracy in violation
of 42 U.S.C. §1985(3), and (6) breach of contract
related to defendants’ alleged breach of plaintiff’s
Waiver of Extradition, id. ¶¶ 102–113.
(R&R at 3.)

Both the New York and the Miami defendants moved to

dismiss plaintiff’s claims arguing primarily that (1)
plaintiff’s claims are barred by their respective states’
5

statutes of limitations and (2) there is no independent cause of
action for spoliation of evidence under the laws of their
respective states.

(R&R at 4.)

Magistrate Judge Gold

recommended dismissal of the majority of plaintiff’s claims as
they are precluded by the applicable statute of limitations, and
further recommended dismissal of plaintiff’s claim for
spoliation, as the claim is not cognizable under New York or
Florida law.

(R&R at 13.)

Upon both de novo and clear error

review of the record and the R&R, the court adopts the wellreasoned and soundly analyzed R&R in its entirety. 4

Although the

untimeliness of the objections is sufficient to warrant clear
error review, clear error review would be appropriate even if
the objections were timely as plaintiff’s objections rehash and
restate arguments already considered by Judge Gold or are
general and rely on conclusory and circular reasoning.
Plaintiff first challenged the R&R issued by Judge
Gold on the basis that Magistrate Judge Gold lacked authority,
under 28 U.S.C. § 636(c), to issue an order on a dispositive
motion.

Plaintiff then noted portions of the R&R to which he

The court finds that plaintiff’s objections were untimely, and as such, may
review the R&R for clear error. See Marcella v. Capital Dist. Physicians’
Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002) (“failure to object to a
magistrate judge's decision or recommendation generally forfeits the right to
present those objections for appellate review”). In an excess of caution,
however, the court reviewed the record de novo, after considering plaintiff’s
objections.
4

6

objected, however, the plaintiff’s objections themselves were
conclusory and supported by inapposite, non-binding or
inapplicable cases and cases that plaintiff misrepresented or
misconstrued.
Plaintiff’s also made two subsidiary objections.
First, he argued that the statute of limitations for his Section
1983, Section 1985, fraud, and breach of contract claims were
tolled under the continuing violation doctrine due to the terms
of the Waiver of Extradition and the fact that his allegedly
false indictment under Indictment #9954/87 never terminated.
(See Pl. Objections at 29, 31.)

Second, he argued that that

Judge Gold was biased in his adjudication of the motions to
dismiss and plaintiff suffered prejudice as a result.
Plaintiff’s first subsidiary objection raised issues
presented to and necessarily and thoroughly considered by
Magistrate Judge Gold prior to the issuance of the R&R
recommending dismissal of the action.

(See e.g. ECF No. 55, Pl.

Opp. to Miami Dade Mot. to Dismiss at 10 (arguing that the
statute of limitations was tolled by the pendence of the
original indictment without a final adjudication).)

Plaintiff

dedicated substantial portions of his second subsidiary
objection to describing general practices to avoid bias, and
generally alleged that Magistrate Judge Gold was biased in favor
of defendants. (See Pl. Objections to the R&R at 18-24.)
7

a. Magistrate Judge Gold Has Authority to Issue a Report
& Recommendation on a Motion to Dismiss
Plaintiff’s objection that Magistrate Judge Gold
lacked authority to issue the R&R is meritless as it is clearly
contradicted by statute, the Federal Rules of Civil Procedure
and relevant case law.

“A district court may refer, without the

parties’ consent, both nondispositive and dispositive motions to
a magistrate judge for decision or recommendation,
respectively.”

Marcella v. Capital Dist. Physicians' Health

Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002) (citing 28 U.S.C. §
636; Fed.R.Civ.P. 72).
Plaintiff asserts, citing cases from other circuits,
that decisions on dispositive motions may only be referred to a
magistrate judge with the full consent of the parties.
Objections at 3.)

(Pl.

Plaintiff argues that under F.R.C.P. 73(b),

magistrate judges lack authority to render judgment in such
cases otherwise.

“Rule 73(b) of the Federal Rules of Civil

Procedure requires that the parties executed and file a written
consent form . . . When the magistrate judge has not received
the full consent of the parties, she has no authority to enter
judgment in the case, and any purported judgment is a nullity.”
(Id. (citing Kino v. Ionization Int’l. Inc., 825 F.2d 1187, 1185
(7th Cir. 1987).)

Because plaintiff raises this objection with

8

specificity and it does not rehash a previous argument, the
court reviews the issue de novo.
The court properly exercised its statutory authority
pursuant to 28 U.S.C. § 636(b)(1)(B) when it referred
defendants’ motions to, and designated, Magistrate Judge Gold to
issue a report and recommendation.

(See Docket Order Referring

City of New York Motion to Dismiss, dated October 12, 2018;
Docket Order Referring Miami Dade Motion to Dismiss, dated
October 17, 2018.)

It is well established that magistrate

judges are authorized to issue reports and recommendations
recommending the disposition of dispositive motions without the
consent of the parties, pursuant to 28 U.S.C. § 636(b)(1).

See

e.g. Koehl v. Bernstein, 740 F.3d 860, 862 (2d Cir. 2014);
Fielding v. Tollaksen, 510 F.3d 175, 176-179 (2d Cir. 2007).
“Art. III [is] satisfied if the ultimate adjudicatory
determination [is] reserved to the district court judge.”
United States v. Raddatz, 447 U.S. 667, 676 (1980).

The

magistrate judge acknowledged as much in the R&R, stating that
objections to the R&R must be made pursuant to 28 U.S.C. §
636(b)(1) and Fed. R. Civ. P. 72(b)(2) or the parties’ might
waive their right to appeal the district court’s order.
R&R at 13 (citation omitted).)

(See

Further, “in providing for a de

novo determination . . . Congress intended to permit whatever
reliance a district judge, in the exercise of sound judicial
9

discretion, chose to place on a magistrate's proposed findings
and recommendations.”
marks omitted).

447 U.S. at 676 (citation and quotation

Accordingly, the court finds that Magistrate

Judge Gold was authorized to issue the R&R.
b. Plaintiff’s Subsidiary Arguments
i. Plaintiff’s Claims Are Time-Barred and the
Statute of Limitations Is Not Tolled
The court adopts Judge Gold’s thoroughly reasoned
recommendation that plaintiff’s Section 1983 false arrest claim,
Section 1985 conspiracy claim, state law claims for fraud and
breach of contract, and wrongful extradition claims are timebarred under both New York and Florida law.

Plaintiff objected

to the R&R on the basis that his claims are not time-barred.
(See Pl. Objections at 24-26.)

His arguments that the statutes

of limitations in New York and Florida were tolled under the
continuous violation doctrine or due to the pendency of
plaintiff’s original indictment merely rehashed prior arguments
made and rejected by Magistrate Judge Gold.

(Id.)

Accordingly,

although Judge Gold’s recommendation that the action be
dismissed in its entirety as time-barred is reviewed for clear
error, the court will also conduct de novo review.

Owusu, 655

F. Supp. 2d at 313.
In plaintiff’s Opposition to the New York defendants’
Motion to Dismiss, he argued that the New York defendants waived
10

their statute of limitations defense under the terms of the
Waiver of Extradition, which plaintiff alleged mandated
continuing performance.

(ECF No. 45, Pl. Opp. To New York

Motion to Dismiss, at 23-24.)

Plaintiff argued that where a

contract imposes a duty of continuing performance, “each
successive breach may begin the statute of limitations running
anew.”

(Id. at 23.)

He asserted that as result of continuing

violations of the Waiver of Extradition agreement, the statute
of limitations was tolled.

(Id. at 26.)

Plaintiff raised additional arguments for continuous
tolling in his opposition to the Miami defendants’ motion to
dismiss.

Specifically:
“Plaintiff [asserted] that, currently and since his
arrest in Florida and subsequent extradition in 1988
to New York[,] he has been hel[d], agai[n]st his will
at the State of New York, and, more than thirty years
had lapsed, and a[] final disposition on the merits of
the accusations has not yet been rendered and, the
current pendence of the Kings County Indictment
#9954187 TOLLS THE STATUTE OF LIMITATION.”

(Pl. Opp. to Miami Dade at 11 (internal emphasis, citation and
quotations omitted).)

Plaintiff argued that the Miami

defendants remain liable to plaintiff during the pendency of the
Kings County indictment because plaintiff has not had the
opportunity to defend against the charges in the initial
indictment.

(Id.)

Although Miami Dade County did not issue the

indictment, plaintiff argued that, “by arresting [p]laintiff,
11

pursuant to the Prior Request of New York, the Miami Defendant
[] acted in league with the NYC Defendants.”

(Id. at 18-19.)

Plaintiff rehashes this argument in his Objections to the R&R.
(See Pl. Objections at 23, 26.)
In the R&R, Magistrate Judge Gold explicitly found
that “the contract at issue here, the Waiver of Extradition,
does not require or provide for any type of continuing
performance, and the continuing performance doctrine is
therefore inapplicable.”

(R&R at 10.)

Magistrate Judge Gold

examined the terms of the Waiver of Extradition, which plaintiff
attached to the Second Amended Complaint and relied on, in part,
to support his claims.

See Chambers v. Time Warner, Inc., 282

F.3d 147, 153 (2d Cir. 1993).

The R&R held that the continuing

violation doctrine does not apply “to discrete unlawful acts,
even where those discrete acts are part of a ‘serial violation,’
but to claims that by their nature accrue only after the
plaintiff has been subjected to some threshold amount of
mistreatment.” (R&R at 11-12 (citing Gonzalez v. Hasty, 802 F.3d
212, 220 (2d Cir. 2015)).)
Magistrate Judge Gold found, and the court agrees,
that plaintiff’s claims arise from plaintiff’s arrest, Waiver of
Extradition and extradition to New York in 1988.
75-76,80, 82, 86-94, 96, 101, 103.)

(SAC ¶¶ 10,13,

Judge Gold found that as

plaintiff was convicted pursuant to the crime for which the
12

Waiver of Extradition was executed on May 2, 1989, most of his
causes of action accrued in 1989 at the latest.

(R&R at 10-12

(citing People v. Candelario, 198 A.D.2d 512 (N.Y. App. Div. 2d
Dep’t 1993) (affirming plaintiff’s 1989 judgment of conviction
and rejecting plaintiff’s contentions challenging his conviction
as lacking merit)).)

Judge Gold found that the only exception

was plaintiff’s common law fraud claim, which, accepting
plaintiff’s claims as true, would have arisen, at latest, in
2007, when plaintiff received a response to his FOIL request
that contained information regarding a weapons charge.

(Id. at

9.)
Accordingly, based on the relevant states’ statutes of
limitations for the various claims, the latest date that any of
plaintiff’s claims became time barred under New York law was on
October 4, 2009, and under Florida law on October 4, 2011. (R&R
at 9-10.)

The court finds no clear error in Judge Gold’s solid

legal analysis.

Moreover, the court has also considered

plaintiff’s tolling arguments de novo and finds that tolling of
the statutes of limitations on plaintiff’s claims is not
appropriate.

Consequently, the court adopts Magistrate Judge

Gold’s thorough and well-reasoned recommendation in its entirety
and finds that plaintiff’s claims are time-barred and must be

13

dismissed. (R&R at 7-12.) 5
ii. Plaintiff’s General, Conclusory Allegations of
Bias Do Not Warrant Rejection of the R&R
Plaintiff also objects to the R&R based on wandering
and conclusory allegations that Magistrate Judge Gold was biased
against plaintiff.

Plaintiff argues that Magistrate Judge

Gold’s statement that “if the recommendations made in [the R&R]
are not adopted[,] . . . that defendant’s motion be referred
again for consideration of the defendants’ remaining arguments,”
indicates bias by Magistrate Judge Gold and renders the R&R a
disfavored “tentative opinion.”

(Pl. Objections at 12-20.)

Plaintiff asserts that Judge Gold’s statement above and failure
to consider and cite to only evidence plaintiff considered
relevant and controlling, showed bias that “dramatically
affected his decision-making process resulting in Prejudice to
Plaintiff.”

(Pl. Objections at 20.)

5 Plaintiff’s argument that the court should disregard the Florida and New
York’s statutes of limitations because, “neither state nor federal law can
change or circumvent the language of the WOE,” is conclusory and merely
rehashes previously considered arguments. (See Pl. Objections at 10.)
Plaintiff attached the Waiver of Extradition to the Second Amended Complaint
and to his objections to the R&R.
(See ECF 31-1, Exhibit A to SAC at 8-29;
ECF No 64-3, Appendix B. to Pl. Objections, Waiver of Extradition, at 54-97.)
Plaintiff’s argument that Judge Gold failed to scrutinize the Waiver of
Extradition, (See Pl. Objections at 10), is plainly incorrect as the R&R
indicates that Judge Gold reviewed the Waiver of Extradition and the
applicable law prior to determining that plaintiff’s action was time-barred.
(See R&R at 10 (stating “the contract at issue here, the Waiver of
Extradition, does not require or provide for any type of continuing
performance, and the continuing performance doctrine is therefore
inapplicable”).) This court’s review of the Waiver of Extradition yields the
same conclusions reached by Judge Gold.

14

Plaintiff argues that Magistrate Judge Gold’s stated
willingness to make further findings at the Article III judge’s
request shows bias and renders the R&R an undesirable “tentative
opinions.

(See R&R at 14.)

Plaintiff cites non-controlling

dissents from inapposite Supreme Court opinions in support of
his arguments.

Lochner v. New York, 198 U.S. 45, 75 (1905)

(Holmes, J., dissenting) (Justice Oliver Wendell Holmes stating
that his own personal opinion on an economic theory was not
relevant to the legal issue at hand); Haddock v. Haddock, 201
U.S. 562, 628 (1906) (Holmes, J., dissenting) (stating, in
discussion of the treatment of domicile in a divorce, “I do not
suppose that civilization will come to an end whichever way this
case is decided”).

Neither case suggests that a motion referred

for a report and recommendation cannot be referred again by a
district judge, if necessary, for further report and
recommendation.

Further, 28 U.S.C. § 636 makes clear that

reports and recommendations may be modified to address
additional issues.

“A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommendations
made by the magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.”

28 U.S.C. § 636 (a)(1).

Plaintiff also alleges his due process rights were
violated by Judge Gold’s biased and improper adoption of the
15

Miami defendants’ contention that plaintiff conflated the City
of Miami and Miami Dade County.

(Id. at 19.)

However, adoption

of specific findings or analyses proposed by a party is not
prohibited, as long as the court’s decision ultimately reflects
its own independent determination, based on the record and the
law.

See e.g. United States v. El Paso Nat. Gas Co., 376 U.S.

651, 656 (1964) (“findings of fact and one conclusion of law,
all of which, we are advised, the District Court adopted
verbatim . . ., though not the product of the workings of the
district judge’s mind, are formally his; they are not to be
rejected out-of-hand, and they will stand if supported by
evidence”).
Judge Gold’s adoption of a specific point of argument
by the Miami defendants falls far short of the sort of wholesale
adoption of findings of fact analyzed in United States v. El
Paso and is insufficient to establish bias.

The First Circuit

case cited by plaintiff presents an extreme example of when
adoption of a party’s analysis might raise concerns on appellate
review.

(Id. at 19 (citing In re Las Colinas, Inc., 426 F.2d

1005, 1008-1009 (1st Cir. 1970).)

In In re Las Colinas, the

First Circuit “determin[ed] whether or not the scope of
[appellate] review [was] affected by the fact that the lower
court, in rendering its opinion, adopted almost verbatim the
proposed findings of fact and conclusions of law submitted by
16

the bank at the close of trial so that the entire opinion
occupying some twenty printed pages was written from end to end
by counsel.”

426 F.2d at 1008.

The court found that there was

no prohibition on adopting a party’s proposed findings
wholesale, but stated, “the greater the extent to which the
court’s eventual decision reflects no independent work on its
part, the more careful we are obliged to be in our review.”
(Id.)
Plaintiff’s additional objections that Judge Gold was
biased are unsupported by the record, to the extent that they
are untethered to any specific dispute with the R&R, and instead
propose general principles for the management and review of
disputes.

For example, plaintiff criticizes the R&R because it

included irrelevant facts, omitted relevant ones, failed to
maintain a sufficiently dignified and courteous tone, included
Judge Gold’s personal thoughts, and misinterpreted the gravamen
of the claims.

(Pl. Objections at 12-19.)

On clear error and

de novo review, plaintiff’s bias claims contain numerous
contradictions and are meritless.

In one instance plaintiff

first instructs the court “to avoid sounding antagonistic,”
saying, “the court should not address every point a losing party
raises, unless all the issues are necessary to decide the case.”
(Id. at 17-18.)

Plaintiff later states that a well-reasoned

opinion should verify the record and recount facts neutrally and
17

should not tailor the facts towards a particular decision. (Id.
at 17-18.)
The court has considered the remaining allegations of
bias and finds them without merit.

As such, the court need not

further analyze the plaintiff’s conclusory allegation of bias
and prejudice on the part of Magistrate Judge Gold.

(Pl.

Objections at 20.)
c. Spoliation
Plaintiff alleges spoliation of evidence as an
independent cause of action in the Second Amended Complaint.
(SAC ¶¶ 71–73.)

Magistrate Judge Gold recommended dismissal of

plaintiff’s spoliation claim as there is no independent cause of
action for spoliation available under either New York or Florida
law.

(R&R at 12 (citations omitted).)

As plaintiff did not

specifically object to the recommendation of the court’s
dismissal of his spoliation claim, the court reviews the
recommendation to dismiss the claim in the R&R for clear error
and finds none.

Accordingly, plaintiff’s claim for spoliation

of evidence is dismissed.
d. Plaintiff’s Motion to File a Sur-reply Is Denied
Plaintiff has failed to show good cause for filing a
sur-reply as he has not established that the Miami defendants
raised a new issue for the first time on reply.
F. Supp. 2d at 293.

See Anghel, 947

A sur-reply may be appropriate where the
18

party against whom the sur-reply will be filed raises new
arguments, and the proposed sur-reply provides rebuttal
information relevant to the disposition of the case.

Id.

Plaintiff argues that a sur-reply is appropriate as
the Miami defendants’ reply asserts new facts: (1) a
misrepresentation that they did a pre-extradition fingerprint
analysis to match plaintiff’s fingerprints with a homicide, and
(2) a misrepresentation that plaintiff was eventually convicted
of at least one of the crimes for which he was extradited.
(See ECF No. 60, Motion to File Surreply, at 3-5.)

However, the

record, including the Waiver of Extradition that plaintiff
attached as an exhibit to the Second Amended Complaint, makes
clear that these representations do not constitute new facts or
arguments.

The fingerprint analysis described in the Miami

defendant’s reply was taken directly from the Waiver of
Extradition.

(See ECF No. 31-1, Waiver of Extradition, at 14.)

With regard to the alleged misrepresentation about
defendant’s conviction, the Waiver of Extradition states, in
relevant part, “under this Agreement . . .(c) upon a conviction
on charges involving Discharging of a Deadly Weapon or Firearm
resulting in the death of another human being the underlying
Victim Pedro Rodriguez.”

(Id. at 22.)

Plaintiff was on notice

of this fact prior to the Miami defendant’s reply, and had even
cited to the fact of his conviction for murder in his First
19

Amended Complaint.
56- 58.)

(See ECF No. 8, First Amended Complaint, ¶¶

Plaintiff introduced the Waiver as evidence in support

of his Second Amended Complaint and cited from it extensively in
the Second Amended Complaint and in opposition to the
defendants’ motions to dismiss.

(See ECF No. 54 at 6.)

As

such, he cannot contest the use of the waiver by defendants or
argue that information contained therein is new to him and
warrants a sur-reply.

Further, Miami-Dade County argues that

plaintiff was convicted following his extradition in its
Memorandum in Support of its Motion to Dismiss, and, therefore
plaintiff was on notice of the argument prior to opposing MiamiDade’s motion to dismiss.

Accordingly, plaintiff’s motion for

sur-reply is denied, and the court shall not consider
plaintiff’s unauthorized sur-replies.
III. CONCLUSION
For the foregoing reasons, the court adopts Judge
Gold’s well-reasoned and thorough R&R in its entirety and
dismisses plaintiff’s action.

Further, although courts

typically favor granting leave to amend, the court declines to
do so here as plaintiff’s claims are clearly barred by the
statute of limitations, rendering any attempts at repleading

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futile.

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200

(2d Cir. 2007).

The Clerk of Court is respectfully directed to

enter judgment, to mail a copy of this Memorandum and Order, the
judgment and an appeals packet to pro se plaintiff, note service
on the docket, and close the case.

SO ORDERED.
Dated:

March 21, 2019
Brooklyn, New York
____________/s/_________________
Hon. Kiyo A. Matsumoto
United States District Judge

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