Jefferson v. Rosenblatt et al

Filing 33

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Lindsay's R&R (Docket Entry 32) is ADOPTED in its entirety. Defendants' motion to vacate the Certificate of Default (Docket Entry 23) is GRANTED and Plaintiff's cross motion for default judgment and the issuance of a subpoena (Docket Entry 30) is DENIED. The Clerk of the Court is directed to VACATE the Certificate of Default. (Docket Entry 21.) The Clerk of the Court is further directed to mail a copy of this Memorandum and Order to the pro se Plaintiff.The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. So Ordered by Judge Joanna Seybert on 3/7/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KEVIN L. JEFFERSON,
Plaintiff,
-against-

MEMORANDUM & ORDER
13-CV-5918(JS)(ARL)

CRAIG ROSENBLATT, SALVATORE SALVAGGIO,
ROBERT MEYER, and COUNTY OF SUFFOLK,
Defendants.
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APPEARANCES
For Plaintiff:
Kevin L. Jefferson, pro se
8 Candlewood Road
N. Bay Shore, NY 11706
For Defendants:

Brian C. Mitchell, Esq.
Suffolk County Dept. of Law
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788

SEYBERT, District Judge:
Pending before the Court is Magistrate Judge Arlene R.
Lindsay’s Report and Recommendation dated February 7, 2017 (the
“R&R,” Docket Entry 32) recommending that this Court: (1) grant
defendants Craig Rosenblatt, Salvatore Salvaggio, Robert Meyer,
and County of Suffolk’s (collectively, “Defendants”) motion to
vacate the Clerk’s entry of default, (Defs.’ Ltr. Mot., Docket
Entry

23),

and

(2)

deny

plaintiff

Kevin

L.

Jefferson’s

(“Plaintiff”) cross motion for default judgment and the issuance
of a subpoena, (Pl.’s Mot., Docket Entry 30).
reasons, the R&R is ADOPTED in its entirety.

For the following

BACKGROUND
The

Court

assumes

familiarity

with

the

factual

and

procedural background of this matter, which is set forth in the
R&R. Briefly, on October 25, 2013, Plaintiff commenced this action
pursuant to 42 U.S.C. Section 1983, alleging violations of his
First and Fourteenth Amendment rights.
Docket Entry 1, at 2-3.)

(See generally Compl.,

On March 31, 2015, the Court granted in

part and denied in part Defendants’ motion to dismiss for failure
to

state

a

claim.

(Order,

Docket

Entry

16.)

Certain

of

Plaintiff’s claims were dismissed without prejudice and with leave
to file an Amended Complaint.

(Order at 20-21.)

Plaintiff filed an Amended Complaint.

On May 13, 2015,

(Am. Compl., Docket Entry

18.)
Defendants failed to timely answer or move to dismiss
the Amended Complaint, and on August 17, 2016, the Clerk entered
a Certificate of Default.
That

same

day,

(Cert. of Default, Docket Entry 21.)

Defendants

filed

their

Answer

to

the

Complaint and moved to vacate the Certificate of Default.
Docket Entry 22; Defs.’ Ltr. Mot.)

Amended
(Ans.,

On October 14, 2016, the Court

referred Defendants’ motion to Judge Lindsay for a report and
recommendation on whether the motion should be granted.
Order, Docket Entry 26.)

(Referral

On December 5, 2016, Plaintiff filed a

cross motion seeking entry of a default judgment and the issuance
of a subpoena.

(Pl.’s Mot.)
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On February 7, 2017, Judge Lindsay issued her R&R. Judge
Lindsay recommends that this Court grant Defendants’ motion, set
aside the Certificate of Default, and accept Defendants’ late
Answer.

(R&R at 7.)

Judge Lindsay further recommends that

Plaintiff’s cross motion be denied.

(R&R at 7.)

DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

in

whole

made

by

28 U.S.C. § 636(b)(1)(C).

or

in
the

part,

the

findings

magistrate

and

judge.”

If no timely objections have been made,

the “court need only satisfy itself that there is no clear error
on the face of the record.”

Urena v. New York, 160 F. Supp. 2d

606, 609-10 (S.D.N.Y. 2001) (internal quotation marks and citation
omitted).
Objections were due within fourteen (14) days of service
of the R&R.

The docket reflects that on February 7, 2017, the

Court mailed a copy of the R&R to Plaintiff by Federal Express.
(See Docket Entry 32.) The time for filing objections has expired,
and no party has objected.

Accordingly, all objections are hereby

deemed to have been waived.
Upon careful review and consideration, the Court finds
Judge Lindsay’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.

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CONCLUSION
Judge Lindsay’s R&R (Docket Entry 32) is ADOPTED in its
entirety.

Defendants’ motion to vacate the Certificate of Default

(Docket Entry 23) is GRANTED and Plaintiff’s cross motion for
default judgment and the issuance of a subpoena (Docket Entry 30)
is DENIED.

The Clerk of the Court is directed to VACATE the

Certificate of Default.

(Docket Entry 21.)

The Clerk of the Court

is further directed to mail a copy of this Memorandum and Order to
the pro se Plaintiff.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

See Coppedge v. United States, 369 U.S. 438, 444-

45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
7 , 2017
Central Islip, New York

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