Wilson v. Walmart Store Inc

Filing 27

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Judge Brown's R&R (Docket Entry 24) is ADOPTED in its entirety, Plaintiff's Objections (Docket Entry 26) are OVERRULED, Plaintiff's motion seeking a de fault judgment (Docket Entry 18) is DENIED, and Defendant's motion to vacate (Docket Entry 16) is GRANTED. Since Defendant already filed an Answer on October 21, 2015, (Docket Entry 21), the parties are directed to consult Judge Brown's Individual Motion Practices to schedule a discovery conference. So Ordered by Judge Joanna Seybert on 9/23/2016. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
RASHEEN WILSON,
Plaintiff,
-against-

MEMORANDUM & ORDER
15-CV-4283(JS)(GRB)

WALMART STORES, INC.,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiff:
Rasheen Wilson, pro se
812 North Gate Drive
Uniondale, NY 11553
For Defendant:

Rachel Anne Seaton, Esq.
Littler Mendelson, PC
One Newark Center, 8th Floor
Newark, NJ 07102

SEYBERT, District Judge:
Pending before the Court are: (1) a motion for a default
judgment filed by pro se plaintiff Rasheen Wilson (“Plaintiff”),
(Docket Entry 16) (2) a motion to vacate filed by defendant Walmart
Store, Inc. (“Defendant”) (Docket Entry 18), (3) Magistrate Judge
Gary R. Brown’s Report and Recommendation (“R&R”) recommending
that the Court deny Plaintiff’s motion and grant Defendant’s motion
(Docket Entry 24, and (4) Plaintiff’s Objections to Judge Brown’s
R&R (Docket Entry 26).

For the following reasons, the Court

overrules Plaintiff’s Objections and adopts Judge Brown’s R&R in
its entirety.

BACKGROUND
Plaintiff

commenced

this

action

on

July

15,

2015,

alleging that Defendant discriminated against him on the basis of
race and national origin in violation of Title VII of the Civil
rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
Compl.)

(See generally

On August 6, 2015, the Court granted Plaintiff’s in forma

pauperis application and ordered the United States Marshal Service
to serve Defendant with the Complaint.

(Docket Entry 5.)

That

same day, summonses were issued to two different addresses: (1)
“Walmart Stores, Inc. c/o Littler Mendelson, PC, Scott A. Forman,
Shareholder, 333 SE 2nd Avenue, #2700, Miami, FL 33131” (“Littler
Mendelson Address”), and (2) “Walmart Stores, Inc., 2465 Hempstead
Turnpike, East Meadow, NY 11554” (“Retail Store Address”). (Docket
Entry 6.)
On

September

9,

2015,

a

process

server

personally

delivered the Summons and Complaint to “Shera, Store Manager” at
the Retail Store Address.

(Summons, Docket Entry 11.)

Defendant

represents in its motion that the individual in question, Shera
Blanding, was employed as an “Assistant Manager” at Defendant’s
retail branch.

(Def’s Br., Docket Entry 16, at 2.)

A copy of the executed Summons was filed by the Clerk of
the Court on September 15, 2015, and the Clerk noted on the Docket
“answer due 9/30/2015.”

(See Summons.)

When the Defendant did

not file an Answer by September 30, 2015, Plaintiff requested a
2

certificate of default, which was issued on October 6, 2015.
(Docket Entry 13.)

Defendant’s counsel subsequently appeared two

days later and filed its motion to vacate.
16.)

(Docket Entries 14,

Plaintiff then filed his motion seeking a default judgment

on October 15, 2015.
On

(Docket Entry 18.)

October

19,

2015,

the

undersigned

referred

the

parties’ motions to Judge Brown for an R&R on whether the motions
should be granted, (Docket Entry 20), and Judge Brown issued his
R&R on August 22, 2016, (Docket Entry 22).

Judge Brown recommends

in his R&R that the Court grant Defendant’s motion to vacate and
deny Plaintiff’s motion for a default.

(R&R at 11.)

Judge Brown

specifically found that: (1) personal delivery of the Summons and
Complaint to Shera Blanding was insufficient service of process
under New York law, and (2) the three factors Courts consider
before relieving a party from default--willfulness, the existence
of

a

meritorious

defense,

and

prejudice--all

allowing this case to proceed to discovery.
Plaintiff

filed

Objections

August 29, 2016. (Docket Entry 26.)

to

weigh

favor

of

(R&R at 7-11.)

Judge

Brown’s

R&R

on

In his Objections, Plaintiff

argues--without citing to any support--that Defendant was properly
served with process, and that Walmart’s attorney was aware of the
September 30, 2015 deadline to file its Answer yet neglected to
abide by it.

(Objections at 1-2.)

3

DISCUSSION
I.

Standard of Review
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).
specific,

written

objections

to

A party may serve and file
a

magistrate’s

report

and

recommendation within fourteen days of receiving the recommended
disposition.

See FED. R. CIV. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate’s recommendation, the district
“court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

28

A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.
815, 817 (S.D.N.Y. 1991).
or

general

objections,

See Pizarro v. Bartlett, 776 F. Supp.
But if a party “makes only conclusory
or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
4

for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
[were]

not,

instance.”

presented

to

the

magistrate

judge

in

the

first

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at

*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).
II.

Plaintiff’s Objections
Plaintiff argues that the Court should grant his motion

for a default judgment because Defendant was properly served with
process and Walmart’s attorney was aware of the September 30, 2015,
yet neglected to file an Answer. (Objections at 1-2.)

However,

Plaintiff’s conclusory argument does not address Judge Brown’s
finding

that

delivering

the

Summons

and

Complaint

to

Shera

Blanding, an assistant store manager, was not proper service of
process under New York law.

Nor does Plaintiff offer any support

for his conclusory argument.

In fact, the vast majority of

Plaintiff’s Objections address the merits of his discrimination
claim, which only highlights that the Court should allow the case
to be decided on the merits.
Having reviewed Judge Brown’s R&R, the Court finds it to
be

comprehensive,

well-reasoned,
5

and

free

from

clear

error.

Therefore, Judge Brown’s R&R R&R is adopted in its entirety.
CONCLUSION
For the foregoing reasons, Judge Brown’s R&R (Docket
Entry 24) is ADOPTED in its entirety, Plaintiff’s Objections
(Docket Entry 26) are OVERRULED, Plaintiff’s motion seeking a
default judgment (Docket Entry 18) is DENIED, and Defendant’s
motion to vacate (Docket Entry 16) is GRANTED.
Since Defendant already filed an Answer on October 21,
2015, (Docket Entry 21), the parties are directed to consult Judge
Brown’s

Individual

Motion

Practices

to

schedule

a

discovery

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

September
23 , 2016
Central Islip, New York

6