Kelly v. Vesnaver et al

Filing 77

ORDER ADOPTING REPORT AND RECOMMENDATIONS : The Court adopts the January 11, 2018 Report and Recommendation of Judge Locke as if set forth herein. Accordingly, IT IS HEREBY ORDERED THAT this case is dismissed for lack of subject matter jurisdiction. The Clerk of Court is directed to enter judgment accordingly and to close this case. Ordered by Judge Denis R. Hurley on 2/23/2018. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------X
STEVEN KELLY,
Plaintiff,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION
16-CV-883(DRH)(SIL)

PAUL VESNAVER BOTH INDIVIDUALLY
AND AS AN ATTORNEY/PRINCIPAL IN
THE LAW FIRM OF PAUL VESNAVER PC;
GENESIS PARTNERS, LLC, JOHN TIDROW
INDIVIDUALLY; BRUCE KLEIN
INDIVIDUALY; MATTHEW OLUGBENGA
AWORENI INDIVIDUALLY AND
HONEYFIELD INVESTMENTS LTD.,

Defendants.
---------------------------------------------------X
On July 20, 2017, this Court sua sponte issued an Order to Show Cause directing plaintiff
to show cause why the amended complaint should not be dismissed for lack of subject matter
jurisdiction. As set forth in that Order to Show Cause after a review of the amended complaint it
appeared that diversity jurisdiction may be lacking because (1) only the residency - not the
citizenship - of the individual defendants was alleged; (2) the allegations of the citizenship of the
limited liability companies did not include the citizenship of natural persons who are members of
a limited liability company and the place of incorporation and principal place of business of any
corporate entities who are members of the limited liability company; and (3) assuming that the
citizenship of the individual defendants was the same as their alleged residence, complete
diversity was lacking given the allegations that both plaintiff and defendant Klein “reside” in
Florida. After receipt of plaintiff’s response to the Order to Show Cause, the matter was referred
to Magistrate Judge Steven I. Locke for a report and recommendation.

Presently before the Court is the January 11, 2018 Report and Recommendation (the
“R&R) of Judge Locke recommending that this action be dismissed for lack of subject matter
jurisdiction. Plaintiff has filed objections to the R&R; however, the total sum of the objections
are as follows: “COMES Now, the Plaintiff, Steven Kelly, and objects to the Report and
Recommendation filed with this Court and respectfully moves that this honorable Court rule in
his favor with regard to the Order to Show Cause.”
Given the absence of specific objections to the R&R, plaintiff has waived any objections
to the R&R and the appropriate standard of review is clear error. See Mario v. P &C Food Mkts.,
Inc., 313 F.3d 758,766 (2d Cir. 2002) (“[B]are statement, devoid of any reference to specific
findings or recommendations to which he objected and why, and unsupported by legal authority,
was not sufficient to preserve [plaintiff’s] claim. Merely referring the court to previously filed
papers or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b)
or [Western District of New York] Local Civil Rule 72.3(a)(3).”)
Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72, this Court has reviewed the Report
and Recommendation for clear error, and finding none, now concurs in both its reasoning and its
result. Accordingly, the Court adopts the January 11, 2018 Report and Recommendation of
Judge Locke as if set forth herein. Accordingly,
IT IS HEREBY ORDERED THAT this case is dismissed for lack of subject matter
jurisdiction. The Clerk of Court is directed to enter judgment accordingly and to close this case.
Dated: Central Islip, New York
February 23, 2018

/s Denis R. Hurley
Denis R. Hurley
United States District Judge

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