Rolle v. Educational Bus Transportation, Inc.

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that the Court accepts Magistrate Judge Tomlinson's Report as an order of the Court. For the reasons set forth in the Report, deft's motion to dismiss the complaint is granted and the co mplaint is dismissed in its entirety without prejudice. Plaintiff's 35 application for leave to amend the complaint is granted to the extent that plaintiff may serve and file an amended complaint on or before April 1, 2013, or she will be deemed to have waived her right to amend the complaint and the complaint will be deemed dismissed with prejudice. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 2/27/2013. (Florio, Lisa)

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E D NY

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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PAMELA ROLLE,

fd 2 7 Z013

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LONG I:'; LAND OFFICE.

Plaintiff,
ORDER
ll-cv-3855(SJF)(AKT)

-againstEDUCATIONAL BUS TRANSPORTATION, INC.,
Defendant.

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FEUERSTEIN, J.
Pending before the Court is the Report and Recommendation of Magistrate Judge A.
Kathleen Tomlinson ("the Report"), dated February 12, 2013, recommending, inter alia, that the
motion of defendant Educational Bus Transportation, Inc. ("defendant") to dismiss the complaint
pursuant to Rules 12(b)(5) and (6) of the Federal Rules of Civil Procedure be granted and that the
complaint be dismissed in its entirety without prejudice. No objections have been filed to the
Report, although prose plaintiff Pamela Rolle ("plaintiff") filed an "Answer Report and
Recommendation," in which she seeks to dismiss the claims in her original complaint and to file
an amended complaint "charging the Defendant [with] discrimination and harassment • • • for
wrongful termination." For the reasons stated herein, the Report of Magistrate Judge Tomlinson
is accepted in its entirety.
I

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct
proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P.
72(b ). Any portion of a report and recommendation on dispositive matters, to which a timely

I

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objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(l); Fed.R.Civ.P. 72(b). The
court, however, is not required to review the factual findings or legal conclusions of the
magistrate judge as to which no proper objections are interposed. See, Thomas v. Am. 474 U.S.
140, !50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a
magistrate judge to which no timely objection has been made, the district judge need only be
satisfied that there is no clear error apparent on the face ofthe record. See Fed. R. Civ. P. 72(b);
Johnson v. Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y. 2007), affd, 305 Fed. Appx. 815 (2d Cir.
Jan. I, 2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451,453 (E.D.N.Y. 2004), affd,
125 Fed.Appx. 374 (2d Cir. 2005). Conclusory or general objections are typically reviewed
under the "clear error" standard.

See,~

Patrick Collins. Inc. v. Doe 1,- F.R.D. - , 2012 WL

5879120, at* 3 (E.D.N.Y. Nov. 20, 2012); Menking ex rei. Menking v. Daines,- F.R.D. - ,
2012 WL 4328343, at • 1 (S.D.N.Y. Sept. 21, 2012); Williams v. Woodhull Medical and Mental
Health Center,- F. Supp. 2d - , 2012 WL 3704746, at* 2 (E.D.N.Y. Aug. 27, 2012).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modifY any of the magistrate judge's findings or recommendations. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
II

No party has filed any objections to Magistrate Judge Tomlinson's Report. At most,
plaintiffs motion to amend the complaint can only be construed as a general objection to the
Report, subject to review under the "clear error" standard. Upon review, the Court is satisfied
that the Report is not facially erroneous. Accordingly, the Court accepts Magistrate Judge
Tomlinson's Report as an order of the Court. For the reasons set forth in the Report, defendant's
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motion to dismiss the complaint is granted and the complaint is dismissed in its entirety without
prejudice. Plaintiffs application for leave to amend the complaint is granted to the extent that
plaintiff may serve and file an amended complaint on or before April I, 2013, or she will be
deemed to have waived her right to amend the complaint and the complaint will be deemed
dismissed with prejudice.

SO ORDERED.

s/ Sandra J. Feuerstein
v

SANDRA J. FEUERSTEIN
United States District Judge
Dated: February 27, 2013
Central Islip, New York

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