Anania et al v. United States of America et al

Filing 69

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATIONS - Based upon the foregoing analysis: (1) Judge Lindsay's R&R 64 is adopted to the extent set forth in this Memorandum and Order; (2) the County Defendants' Rule 12(c) motion 40 is d ismissed, without prejudice; (3) the Federal Defendants' Rule 12(b) and 12(c) motion 56 is dismissed without prejudice; (4) the parties are directed to meet and confer regarding a briefing schedule for resubmission of the motions and submit the same to the Court by 1/22/2018; and (5) the resubmitted motions are hereby re-referred to Magistrate Judge Lindsay for a Report and Recommendation. SO Ordered by Judge Sandra J. Feuerstein on 1/12/2018. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSEPH ANANIA, JAMES ANNING,
WILLIAM BUSCHMANN, MICHAEL FISHER,
NANCY HASKELL, GERODETTE MACWHINNIE,
KEITH MARRAN, MICHAEL MCPHERSON,
ROLAND MICHELY, GARY SACKS, ROBERTA
TERAZO and SARA WIDDICOMBE,

FILED 
CLERK 

11:52 am, Jan 12, 2018

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiffs,
MEMORANDUM
AND ORDER
CV 16-3542 (SJF) (ARL)
- against UNITED STATES OF AMERICA,
UNITED STATES ARMY CORPS OF ENGINEERS,
COLONEL DAVID A. CALDWELL, COUNTY OF
SUFFOLK and GILBERT ANDERSON,
Defendants.
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FEUERSTEIN, District Judge:
I.

INTRODUCTION
Plaintiffs, Joseph Anania, James Anning, William Buschmann, Michael Fisher, Nancy

Haskell, Gerodette MacWhinnie, Keith Marran, Michael McPherson, Roland Michely, Gary
Sacks, Roberta Terazo and Sara Widdicombe (collectively, the “Plaintiffs”) bring the instant
action, arising under the First, Fifth and Fourteenth Amendments to the United States
Constitution, 42 U.S. C. § 1983, Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), 28 U.S.C. § 2201, and the Administrative Procedure Act,
5 U.S.C. § 701 et seq., against Defendants United States of America (the “United States”),
United States Army Corps of Engineers (the “USACE”), Colonel David A. Caldwell (“Colonel
Caldwell”) (collectively, the “Federal Defendants”), County of Suffolk (the “County”) and

Gilbert Anderson (“Anderson”) (collectively, the “Defendants”) seeking damages, declaratory
and injunctive relief stemming from the alleged “takings of Plaintiffs’ property rights, in
connection with the design and implementation of the so-called Fire Island Inlet to Moriches
Inlet Fire Island Stabilization Beach Restoration Project (the “FIMI Project”), by the [USACE],
in concert with the County of Suffolk, New York and the State of New York.” See generally
Amended Complaint (“Am. Compl.”). Presently before the Court is Judge Lindsay’s Report and
Recommendation concerning the County’s Rules 12(c) motion [DE 40] as well as the Federal
Defendants’ motion pursuant to Rule 12(b)(1), 12(b)(6) and 12(c) [DE 56] seeking to dismiss the
Amended Complaint in its entirety. See DE 64 (“the R&R”). Judge Lindsay recommends that
these motions “should be converted into motions for summary judgment and

. . . that the

motions be denied, at this time, in order to give plaintiffs a reasonable opportunity to present
material pertinent to the converted motions.” R&R at 1. For the reasons that follow, Judge
Lindsay’s R&R is adopted to the extent set forth in this Memorandum and Order.
II.

BACKGROUND
A. Judge Lindsay’s Report and Recommendation
Judge Lindsay’s recommendation, that both of Defendants’ motions be converted to

“motions for summary judgment,” see R&R at 6, is premised upon the “enormity of the record
that has been placed before the Court, the federal defendants’ request, albeit it [sic] in the
alternative, that the motion be decided pursuant to Rule 56, and the plaintiffs’ own attempt to
supplement the record with an expert declaration. . . .” Id. at 6. Judge Lindsay noted that “the
County has submitted a large portion of the FIMI Project Main Report, issued by the USACE in
June 2014 (the “HSLRR”),” “several appendices to the HSLRR,” “environmental review
documents [contained in the USACE website],” “materials that were circulated in advance of or

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were made part of the Eminent Domain hearing record” and “samples of easement forms as well
as several documents that were mailed to property owners in an attempt to provide an
explanation of the key provisions of the easements.” Id. at 4. Judge Lindsay further noted that
the “federal defendants have also asked the Court to consider the entire HSLRR and its
appendices . . . the Project Partnership Agreement dated August 25, 2014 and the and the Local
Partnership Agreement dated August 5, 2015, referred to in the amended complaint” and opined
that “although the plaintiffs have failed to provide citations to many of the facts set forth in their
opposing memoranda, they too have made numerous references to the documents described
above” while also “rely[ing] on an affidavit submitted by their coastal expert scientist, Dr. Mark
Byrnes, Ph.D., that was submitted in support of their preliminary injunction motion.” Id. at 4-5.
Notwithstanding that all parties expressly or impliedly requested consideration of various
documents that purportedly exist outside of the Amended Complaint and the County’s argument
that “conversion is unnecessary given the plaintiffs’ repeated reference to many of documents in
their amended complaint” as well as the fact that “the documents at issue were available to the
plaintiffs when they framed their allegations,” id. at 4-5, Judge Lindsay stated that it is “within a
district court’s discretion to convert a motion to dismiss or a motion for judgment on the
pleadings to a motion for summary judgment when the parties have presented matters outside the
pleadings, provided that the parties are given reasonable notice and an opportunity to present
pertinent material before such a motion is converted,” id. at 5 (citing cases), and that prior to
“converting the motions, all parties must be given notice, as well as a reasonable opportunity to
submit all material made pertinent to such motion by Rule 56.” Id. at 6 (citing cases). Thus, in
light of the broad discretion afforded to a district court in determining whether a motion to
dismiss or for judgment on the pleadings should be converted into one for summary judgment

3

and “given the enormity of the record that has been placed before the Court, the federal
defendants’ request, albeit in the alternative, that the motion be decided pursuant to Rule 56,1 and
the plaintiffs’ own attempt to supplement the record with an expert declaration,” Judge Lindsay
determined that “the better course is to convert the pending motions to motions for summary
judgment.” Id. at 6.
Based upon this determination, Judge Lindsay has recommended that Defendants’
motions “be denied, at this time, in order to give the plaintiffs a reasonable opportunity to present
material pertinent to the converted motions.” Id. at 7. However, Judge Lindsay qualified this
recommendation by stating that “[a]lthough the Court believes that the materials offered by the
parties in connection with the preliminary injunction motion would be helpful in its
determination [of the instant motions], given the defendants’ grounds for dismissal, the
undersigned does not believe that additional discovery is necessary at this time.” Id. n. 1.
B. The County Defendant’s Response
The County asserts that it “does not object to the conversion of the County’s motion for
judgment on the pleadings under Rule 12(c) to a motion for summary judgment” and also
“agrees with the statement by [Judge Lindsay] that no discovery is required.” Response and
Objections of the County of Suffolk to Magistrate’s Report and Recommendation (“Cty. Defs.’
Response”) at 1-2. The County states that it “believes that the voluminous papers filed already
with the Court provide everything needed to decide whether to grant summary judgment” and
that upon conversion of the motion “the Court consider all papers submitted by all parties in

The Federal Defendants have only requested this alternative treatment with respect to
Count VI of the Amended Complaint which seeks relief pursuant to the Administrative
Procedure Act. See Federal Defendants’ Memorandum of Law in Support of Motion to Dismiss
the [Amended] Complaint Pursuant to Rule 12(b)(1), 12(b)(6), and 12(c), or, Alternatively, as to
Count VI only, for Summary Judgment (Fed. Defs.’ Mem.”) at 22 n. 4.
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connection with the following: (1) The County’s 2/17/17 Motion for Judgment on the Pleadings
pursuant to Rule 12(c); (2) The Federal Defendants’ 6/23/17 Motion to Dismiss; (3) Plaintiffs’
6/28/16 Motion for a Preliminary Injunction; and (4) Plaintiffs’ 10/2/17 Application for a
Temporary Restraining Order.” Id. at 2. Therefore, the County requests “that a short period be
allowed for further submissions. . . .” Id.
C. The Federal Defendants’ Response
The Federal Defendants take issue with Judge Lindsay’s recommendation, asserting that
“it is not appropriate to convert the Federal Defendants’ motion to dismiss to a motion for
summary judgment in this case. Rather, the Court should decide the motion on the basis of the
submissions before the Court.” Federal Defendants’ Memorandum of Law in Support of
Objections to Report and Recommendation on Federal Defendants’ Motion to Dismiss the
[Amended] Complaint Pursuant to Rule 12(b)(1), 12(b)(6), and 12(c), or, Alternatively, as to
Count VI only, for Summary Judgment (“Fed. Defs.’ Response”) at 4. Specifically, according to
the Federal Defendants, their “motion to dismiss Counts I-III2 may not be converted to summary
judgment because this portion of the motion to dismiss presents purely legal questions that can
be determined on the pleadings” coupled with the fact that no “party [has] presented . . . any
‘matters outside the pleadings’ [ ] in support of or opposition to the Federal Defendants’ motion
to dismiss Counts I-III.” Id. at 5. Likewise, the Federal Defendants assert that conversion is
unwarranted with respect to Counts IV-VII3 since: (1) “the Federal Defendants did not rely upon
or ask the Court to consider the Project Partnership Agreement and the Local Partnership

Counts I-III plead claims premised upon a denial of Equal Protection, denial of Due
Process and chilling of First Amendment rights. See generally Am. Compl.
2

Counts IV-VII plead claims premised upon Declaratory Judgment, the Administrative
Procedure Act and injunctive relief. See generally Am. Compl.
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Agreement as a basis to grant their motion to dismiss” but rather submitted these documents “as
part of the factual background in [the Federal Defendants’] initial brief;” (2) “the HSLRR and all
of its attachments constitute the administrative record” and therefore these materials “are not
only properly before the Court, but are . . . the only materials that may be considered upon
plaintiffs’ claims in Counts IV-VII that seek review of, inter alia, the USACE’s action under the
APA;” (3) “regardless of the procedural vehicle chosen to move to dismiss an APA claim
challenging agency action, matters outside the administrative record may not be considered
except in very narrow circumstances not present . . . here;” and (4) “Counts IV-VII . . . depend
on the baseless contention that Cherry Grove has been excluded from the FIMI project because
its dune will not be reconstructed to pre-Sandy condition.” Id. at 5-10.
D. Plaintiffs’ Response
Plaintiffs state that they have “no objection to the central recommendation contained
within Magistrate Judge Lindsay’s Report—that is, converting both the County and Federal
Defendants’ motions to dismiss to motions for summary judgment and allowing the Plaintiffs a
reasonable amount of time to present pertinent materials in support of their position.” Plaintiffs’
Response to Magistrate’s Report (“Pls.’ Response”) at 1. Plaintiffs nevertheless request that they
be permitted the “opportunity to submit legal memoranda addressing the import of such
additional materials and their relation to Plaintiffs’ legal arguments” while also allowing
Plaintiffs time to engage in additional discovery. Id. at 1-2.4

The Federal Defendants filed a memorandum in opposition to Plaintiff’s response to the
R&R in which they reassert the position taken in their own response that “no additional
[discovery] material may be presented [by] plaintiffs. . . .” Federal Defendants Memorandum of
Law in Opposition to Plaintiffs’ Response to the Report and Recommendation at 2.
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III.

STANDARD OF REVIEW
28 U.S.C. § 636(b)(1) provides, in pertinent part, that
[w]ithin fourteen days after being served with a copy, any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court
shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge.

28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b); Warren v. City of New York, No. 15-CV-4063,
2017 WL 1231370, at *1 (E.D.N.Y. Apr. 3, 2017); Thompson v. Yelich, No. 09-CV-5039, 2012
WL 5904359, at *1 (E.D.N.Y. Nov. 26, 2012) (“To the extent that a party makes specific and
timely written objections to a magistrate judge’s findings and recommendations, the district court
must review de novo “those portions of the report . . . to which objection is made.”). Likewise,
“when a party makes only conclusory or general objections, or simply reiterates his original
arguments, the Court reviews the Report and Recommendation only for clear error.” Thompson,
2012 WL 5904359, at *1 (quoting Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y.
2002) (citation and internal quotation marks omitted)); Small v. Chappius, No. 12 CV 5583,
2017 WL 4342132, at *3 (S.D.N.Y. Sept. 28, 2017). Similarly, “where no objections to the
Report and Recommendation have been filed, the district court need only satisfy itself that there
is no clear error on the face of the record.” Warren, 2017 WL 1231370, at *1; see Thomas v.
Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district
court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.”); Trustees of the Local 7 Tile Indus. Welfare Fund
v. EAQ Constr. Corp., No. 14 CV 4097, 2016 WL 4536866 (E.D.N.Y. Aug. 30, 2016) (“The
Court is not required to review, under a de novo or any other standard, the factual or legal

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conclusions of the magistrate judge as to those portions of the report and recommendation to
which no objections are addressed.”); Rococo Assocs., Inc. v. Award Packaging Corp., No. 06CV-0975, 2007 WL 2026819, at *1 (E.D.N.Y. July 9, 2007). Moreover, “[w]here parties receive
clear notice of the consequences, failure timely to object to a magistrate’s report and
recommendation operates as a waiver of further judicial review of the magistrate’s decision.”
Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002); Blair v. L.I. Child &
Family Dev. Servs., Inc., No. 16CV1591, 2017 WL 728231, at *1 (E.D.N.Y. Feb. 21, 2017).
IV.

DISCUSSION
Although neither the Plaintiffs nor the County Defendants take issue with the central

recommendation in the R&R, the Federal Defendants have made specific and particularized
objections regarding Judge Lindsay’s conclusion that the pending motions to dismiss and for
judgment on the pleadings be converted into motions for summary judgment and that Plaintiffs
be given “a reasonable opportunity to present material pertinent to the converted motions.” R&R
at 1. Therefore, the Court will review Judge Lindsay’s recommendation de novo.
Insofar as the Federal Defendants’ assert that a “motion to dismiss presents purely legal
questions that can be determined on the pleadings,” Fed. Defs.’ Response at 5, such a proposition
is black letter law with which the Court agrees. See Jannazzo v. United States, No. 15-CV-3506,
2016 WL 1452392, at *3 (E.D.N.Y. Apr. 13, 2016) (“A motion to dismiss under Rule 12(b)(6)
‘presents a pure legal question, based on allegations contained within the four corners of the
complaint.’”) (quoting McMillan v. N.Y. State Bd. of Elections, 10-cv-2502, 2010, 2010 WL
4065434 (E.D.N.Y. Oct. 15, 2010), aff’d, 449 F. App’x 79 (2d Cir. 2011)). However, with
respect to the Federal Defendants’ argument that their “motion to dismiss Counts I-III may not
be converted to summary judgment because this portion of the motion to dismiss presents purely

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legal questions that can be determined on the pleadings,” Fed. Defs.’ Response at 5, no citation
for this proposition has been provided. Indeed, although these purportedly “purely legal
questions” may be determined from the pleadings themselves, that does not lead to the
conclusion that converting the portion of the motion brought pursuant to 12(b)(6) into one for
summary judgment is inappropriate solely on that basis, especially if the Court were to consider
matters outside of the pleadings in deciding the motion. See e.g., Noroozi v. Napolitano, 905 F.
Supp. 2d 535, 541 (S.D.N.Y. 2012) (recognizing that where “the entire case on review is a
question of law, summary judgment is generally appropriate.”); Chambers v. Time Warner, Inc.,
282 F.3d 147, 154 (2d Cir. 2002) (“Once the District Court was presented with matters outside
the pleadings, Rule 12(b) afforded two options. The court could have excluded the extrinsic
documents. Because it elected not to do so, however, the court was obligated to convert the
motion to one for summary judgment and give the parties an opportunity to conduct appropriate
discovery and submit the additional supporting material contemplated by Rule 56.”). However,
to the extent Defendants assert that their Rule 12(b)(1) jurisdictional arguments concerning
Counts I-III cannot be converted into a motion for summary judgment, see Fed. Defs.’ Response
at 5, they are correct. See Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004) (“[A] motion to
dismiss for lack of jurisdiction cannot be converted into a Rule 56 motion”); Kamen v. Am. Tel.
& Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) (same). Nevertheless, the Second Circuit has
noted that in deciding a Rule 12(b)(1) motion, “a court may nonetheless look to Rule 56(f) for
guidance in considering the need for discovery on jurisdictional facts.” Gualandi, 385 F.3d at
244.5
To the extent the Federal Defendants attempt to support their position by referencing the
merits of their defenses as to Counts I-III (i.e., that subject matter jurisdiction is lacking with
respect to the United States and the USACE since the United States has “not waived sovereign
immunity for claims seeking money damages for alleged constitutional violations” while these
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Turning to the conversion of Count VI (the APA claim), which ultimately requires the
Court to analyze whether the USACE’s ultimate determination and findings were arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with the law, see 5 U.S.C.
706(2)(A); Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007), the Federal Defendants appear to
have contemplated conversion by moving, in alternative, for relief pursuant to Rule 56 as to this
Count only. See Notice of Motion [DE 56]. In any event, “[w]hether an agency action is
arbitrary and capricious is a legal question to be resolved on the basis of agency records in
existence at the time of the action, and the Court will not engage in an evidentiary hearing or a de
novo review.” Miezgiel v. Holder, 33 F. Supp. 3d 184, 189 (E.D.N.Y. 2014) (citing Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 743–44, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985));
see Storms v. Unite States, 13-CV-811, 2017 WL 2684013, at *10 (E.D.N.Y. June 20, 2017) (“A
court’s review in an APA case is limited to the administrative record) (citing 5 U.S.C. § 706)).
In addition, “Plaintiffs bear the burden of showing, by citation to evidence in the administrative
record, that an agency’s actions are arbitrary and capricious.” Miezgiel, 33 F. Supp. 3d at 189
(citing Boatmen v. Gutierrez, 429 F. Supp. 2d 543, 548 (E.D.N.Y. 2006)); see Glara Fashion,
Inc. v. Holder, No. 11 Civ. 889, 2012 WL 352309, at *6 (S.D.N.Y. Feb. 3, 2012). Moreover,
although cases involving review of agency decisions pursuant to the APA, which “present only a
question of law,” see Sikh Cultural Soc’y, Inc. v. United States Citizenship & Immigration Servs.,
No. 15-CV-5158, 2017 WL 1232476, at *9 (E.D.N.Y. Mar. 30, 2017), “are frequently disposed
of on cross-motions for summary judgment,” Storms, 2017 WL 2684013, at *10, the procedural
vehicle being utilized to present the question for the court’s review is largely academic. See
same claims against Colonel Caldwell fail to state a Bivens claim since “the complaint does not
allege that [he] was personally involved in the supposed constitutional violations”), Fed. Defs.’
Response at 5, Judge Lindsay’s R&R did not analyze or otherwise address these arguments on
their merits and neither will this Court in reviewing the objections raised to the R&R.
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Greene v. Carson, 256 F. Supp. 3d 411, 423 (S.D.N.Y. 2017) (“[T]he question whether [an
agency] acted in an arbitrary and capricious manner is a legal one which the district court can
resolve on the agency record—regardless of whether it is presented in the context of a motion for
judgment on the pleadings or in a motion for summary judgment (or in any other Rule 12 motion
under the Federal Rules of Civil Procedure.”) (alterations in original); Citizens Against Casino
Gambling in Erie Cty. v. Hogen, No. 07-CV-0451S, 2008 WL 2746566, at *25 (W.D.N.Y. July
8, 2008) (“[I]n the agency review context, Plaintiffs’ claims that Defendants acted in an arbitrary
and capricious manner, or made determinations that are contrary to law, are legal questions that
can be resolved on review of the agency record and/or the governing statutes, regardless of
whether the questions are presented in the context of a motion to dismiss or in a motion for
summary judgment.”); see also Clifford v. U.S. Coast Guard, 915 F. Supp. 2d 299, 307
(E.D.N.Y.), aff’d, 548 F. App’x 23 (2d Cir. 2013) (“[W]ith respect to an APA claim, whether the
defendant styles the motion under Rule 12 or Rule 56 of the Federal Rules of Civil Procedure, it
is clear that the court reviewing the agency decision can consider the administrative record and
generally should confine its review to such record.”). Therefore, conversion of Count VI,
although not required, would not be improper.
The Federal Defendants’ objections concerning conversion of Counts IV, V and VII,
which seek declaratory and injunctive relief, Fed. Defs.’ Response at 9, are without merit. The
Federal Defendants have moved to dismiss these Counts pursuant to Rule 12(c), see Notice of
Motion [DE 56], and “[a] court may indeed convert a motion for judgment on the pleadings into
a motion for summary judgment if ‘matters outside the pleadings are presented to and not
excluded by the court.’” Cleveland v. Caplaw Enterprises, 448 F.3d 518, 521 (2d Cir. 2006)
(quoting Fed. R. Civ. P. 12(c)); see Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689

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(2d Cir. 1990) (“The essential inquiry, when determining if the district court correctly converted
a motion to dismiss into a motion for summary judgment, is whether the non-movant should
reasonably have recognized the possibility that the motion might be converted into one for
summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet
facts outside the pleadings.”) (internal quotations and citation omitted).
Having reviewed Judge Lindsay’s R&R as well as the Federal Defendants’ specific
objections to the same, the Court finds Judge Lindsay’s conclusion to be prudent in light of the
voluminous record in this case coupled with the parties’ attempts to introduce documents that
could be construed as existing outside of the pleadings. Conversion of the motions will ensure
that all evidence is given appropriate consideration when analyzing Defendants’ respective
motions as well as Plaintiffs’ opposition. However, the Court rejects Judge Lindsay’s
recommendation to the extent that it may have implicitly recommended conversion of the
Federal Defendants’ motion brought pursuant to 12(b)(1), see Notice of Motion (bringing motion
pursuant to 12(b)(1) as to the United States and USACE based upon lack of subject matter
jurisdiction), since a 12(b)(1) motion cannot be converted into one for summary judgment. See
Gualandi, 385 F.3d at 244.
The Court also agrees with Judge Lindsay that based upon the depth and scope of the
materials which the parties have already presented to the Court in the context of earlier motion
practice (i.e., through Plaintiffs’ previous applications for a Temporary Restraining Order and
Preliminary Injunction), as well as those materials submitted with the pending motions,
additional discovery is not necessary or warranted at this time. See R&R at 7 n. 1. Therefore,
the documents to be submitted in conjunction with the refiled motions shall encompass only

12

those materials which have been presented to the Court in the pending motions as well as those
documents that were previously attached to Plaintiffs’ motions seeking injunctive relief.
In order to ensure all parties have an adequate opportunity to compile and submit all
materials in conjunction with the converted motions and to ensure an orderly docket is
maintained in this matter, the Court hereby denies, without prejudice, the County Defendants’
and the Federal Defendants’ pending motions [DE 40, 56]. The parties are to meet and confer
regarding an agreed upon briefing schedule for resubmission of the motions in accordance with
the directives contained in this Memorandum and Order and file the proposed schedule with the
Court by January 22, 2018. The resubmitted motions are hereby each individually re-referred to
Magistrate Judge Lindsay for a Report and Recommendation.
V.

CONCLUSION
Based upon the foregoing analysis: (1) Judge Lindsay’s R&R [DE 64] is adopted to the

extent set forth in this Memorandum and Order; (2) the County Defendants’ Rule 12(c) motion
[DE 40] is dismissed, without prejudice; (3) the Federal Defendants’ Rule 12(b) and 12(c)
motion [DE 56] is dismissed without prejudice; (4) the parties are directed to meet and confer
regarding a briefing schedule for resubmission of the motions and submit the same to the Court
by January 22, 2018; and (5) the resubmitted motions are hereby re-referred to Magistrate Judge
Lindsay for a Report and Recommendation.

SO ORDERED.
Dated: Central Islip, New York
January 12, 2018
/s/ Sandra J. Feuerstein
SANDRA J. FEUERSTEIN
U.S. District Judge
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