J.A. v. SCO Family of Services
ORDER ADOPTING REPORT AND RECOMMENDATIONS - Accordingly, IT IS ORDERED that Plaintiff's Amendment Motion is granted. Plaintiff is directed to file his amended complaint as a separate docket entry by 9/15/2017; and for substantially the same reasons articulated by the Magistrate Judge for granting the Amendment motion, IT IS FURTHER ORDERED that Defendant's Dismissal Motion is denied without prejudice to renew. SO Ordered by Judge Sandra J. Feuerstein on 9/6/2017. (Tirado, Chelsea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
J.A., an infant under 18 years of age,
by and through his Guardian Ad Litem,
SCO FAMILY OF SERVICES,
11:26 am, Sep 06, 2017
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Case No.: 16-cv-5269 (SJF)(AYS)
REPORT & RECOMMENDATION,
GRANTING MOTION TO AMEND, and
DENYING MOTION TO DISMISS
FEUERSTEIN, Senior District Judge.
Presently before the Court is Magistrate Judge Shields’ August 3, 2012 Report &
Recommendation recommending granting Plaintiff’s Motion to Amend his complaint. (See ECF
No. 36.) In particular, she “finds that the Amended Complaint sets forth a plausible claim that
[defendant] SCO could be a state actor liable under § 1983,” thereby rendering the Plaintiff’s
amendment not futile. (Report & Recommendation at 7 (ECF No. 36); hereafter, “Report”.)
Magistrate Judge Shields also noted her recommendation that Defendant consider withdrawing
its pending motion to dismiss without prejudice to renew upon further discovery . . .” (Id. at 7
n.1.) For the reasons that follow, the Court adopts Magistrate Judge Shields’ Report in its
On September 22, 2016, Plaintiff J.A. (“Plaintiff”) commenced this action against
Defendant SCO Family of Services (“Defendant”) alleging violations of his civil rights under 42
U.S.C. § 1983 and negligence. (See Complaint (ECF No. 1).) On October 13, 2016, Defendant
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answered, denying Plaintiff’s allegations and raising fourteen affirmative defenses. (See Answer,
(ECF No. 7).) Defendant served Plaintiff with its Rule 12(c) motion to dismiss on January 4,
2017. (See ECF No. 11; hereafter, “Dismissal Motion”.)
On July 11, 2017, this case was consolidated with J.M. v. SCO Family of Services, Case
No. 17-cv-306 (ADS)(AKT)(the “Related Case”) for purposes of discovery. (See Minute Entry
(ECF No. 26); see also Related Case, Electronic Scheduling Order (D.E. dated 08/01/2017).) On
January 31, 2017, Plaintiff filed a Motion to Amend his complaint (see ECF No. 16; hereafter
“Amendment Motion”), which Defendant opposed on the basis of futility (see ECF No. 20). On
February 24, 2017, Defendant filed a Motion to Dismiss (see ECF No. 25), claiming that Plaintiff
failed to plead any specific facts germane to his allegations against Defendant. (See Memo.
Supp. Dismissal Motion at 2 (ECF No. 25-2).) In opposition, Plaintiff asserts that the original
complaint and proposed amended complaint describe in detail the numerous ways in which
Defendant disregarded known and apparent risks about Gonzales-Mugaburu. (See id. at 7; see
also id. at 12 (quoting proposed amended complaint for detailed description of alleged abuse).)
Magistrate Judge Shields recognized that Plaintiff moved to amend his complaint “solely
to add factual allegations” (Report at 1), and that the basis for doing so is the similarity of
allegations in this case and in the Related Case. As Plaintiff’s counsel represented at the July 11,
2017 status conference in the Related Case, it is from facts learned in that case that Plaintiff
moved to amend to add additional factual allegations in this case.
The Report was “provided to all counsel via ECF,” and the parties were directed they
“must” file any written objection to the Report “within fourteen (14) days of [its] filing.” (Id. at
8; see also Notice of Electronic Filing generated in conjunction with ECF No. 36.) No
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objections to the Report were filed and the time to do so has expired. (See generally Docket,
Case No. 16-cv-5269; see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).)
STANDARD OF REVIEW
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct
proceedings of dispositive pretrial matters without the consent of the parties. See Fed. R. Civ. P.
72(b). The district court may accept, reject, or modify, in whole or in part, the findings and
recommendations of the magistrate judge. DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y
1994); see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Where there are no specific written
objections to a magistrate judge’s report and recommendation, the district court may accept the
findings contained therein as long as the factual and legal bases supporting the findings are not
clearly erroneous. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 472 (1985). Therefore,
to accept the report and recommendation of a magistrate judge on a dispositive matter to which
no timely objection has been made, the district judge need only be satisfied that there is no clear
error on the face of the record. See Fed. R. Civ. P. 72(b); Johnson v. Goord, 487 F. Supp.2d 377,
379 (S.D.N.Y. 2007), aff’d, 305 F. App’x 815 (2d Cir. 2009); Baptichon v. Nevada State Bank,
304 F. Supp.2d 451, 453 (E.D.N.Y. 2004), aff’d, 125 F. App’x 374 (2d Cir. 2005).
No objections to Magistrate Judge Shields’ August 3, 2017 Report have been filed, and
the deadline to do so has expired. See 26 U.S.C. § 636(b)(1) (requiring objections be filed within
fourteen (14) days of being served with a copy of a report and recommendation); Fed. R. Civ. P.
72(b)(2). Upon review, the Court is satisfied that the Report is not facially erroneous, and it is
adopted in its entirety.
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Accordingly, IT IS ORDERED that Plaintiff’s Amendment Motion is granted. Plaintiff is
directed to file his amended complaint as a separate docket entry by September 15, 2017; and
For substantially the same reasons articulated by the Magistrate Judge for granting the
Amendment Motion, IT IS FURTHER ORDERED that Defendant’s Dismissal Motion is denied
without prejudice to renew.
Dated this 6th day of September 2017 at Central Islip, New York.
__/s/_Sandra J. Feuerstein__
Sandra J. Feuerstein
United States District Judge
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