Sloan et al v. New York State Board Of Elections et al

Filing 26

ORDER adopting Report and Recommendations re 21 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Hummel's November 16, 2015 Report-Recommendation and Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that this matter is DISMISSED without prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 12/14/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SAM SLOAN; NEIL V. GRIMALDI;
NEREIDA NARVEAZ; VENIADA QUINONES;
MILLIE QUINONES; TIARA LAWRENCE; and
TRINA JACKSON,
Plaintiffs,
vs.

1:14-cv-01071
(MAD/CFH)

NEW YORK STATE BOARD OF ELECTIONS,
Commissioners Douglas A. Kellner, Andrew Spano,
James A. Walsh, Gregory P. Peterson; ERIC T.
SCHNEIDERMAN, as Attorney General of the
State of New York,
Defendants.
____________________________________________
APPEARANCES:
SAM SLOAN
2860 Buhre Avenue
Suite 1E
New York, New York 10461
Plaintiff pro se
NEIL V. GRIMALDI
2860 Buhre Avenue
Suite 1E
New York, New York 10461
Plaintiff pro se
NEREIDA NAREAZ
1815 Davidson
Bronx, New York 10453
Plaintiff pro se
VENIADA QUINONES
1815 Davidson
Bronx, New York 10453
Plaintiff pro se

OF COUNSEL:

MILLIE QUINONES
1921 Jerome Avenue
Bronx, New York 10453
Plaintiff pro se
TIARA LAWRENCE
1921 Jerome Avenue
Bronx, New York 10453
Plaintiff pro se
TRINA JACKSON
NEW YORK BOARD OF ELECTIONS
40 North Pearl Street
Suite 5
Albany, New York 12207
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiffs commenced this action by Order to Show Cause on August 29, 2014 seeking
injunctive relief "directing The New York State Board of Elections to place Sam Sloan on the
ballot as a Democratic candidate for Government of New York State, Nenad Bach as Candidate
for Lieutenant Governor of New York State, Geeta Rankoth as Candidate for Comptroller of New
York State and Neil V. Grimaldi as Candidate for Attorney General of New York State in the
Democratic Primary to be held on September 9, 2014." Dkt. No. 1 at ¶ 1. Summonses were
issued on August 29, 2014 as to Defendants New York State Board of Elections and Eric T.
Schneiderman. See Dkt. No. 3. Nothing in the record indicates that Plaintiffs have served
process on any of the Defendants. See Dkt. No. 16.

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On May 26, 2015, the Court issued a text order extending Plaintiffs' time to effectuate
service until June 23, 2015 and warning Plaintiffs' that failure to effectuate service by that date
would result in this case being dismissed without prejudice. See Dkt. No. 18. On October 26,
2015, Magistrate Judge Hummel issued an Order to Show Cause requiring Plaintiffs to "explain
why an Order should not be made dismissing [this] action against all defendants for failure to
serve and file proof of service in this action as directed by this Court." Dkt. No. 19. Plaintiffs
failed to appear for the November 9, 2015 show-cause hearing. Currently before the Court is
Magistrate Judge Hummel's Report-Recommendation and Order recommending that the Court
dismiss this case without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
See Dkt. No. 21.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
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is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having carefully considering Magistrate Judge Hummel's November 16, 2015 ReportRecommendation and Order, the Court finds that Magistrate Judge Hummel correctly determined
that the Court should dismiss this action without prejudice. The record before the Court makes
clear that, although summonses were issued for Defendants New York State Board of Elections
and Eric T. Schneiderman on August 29, 2014, none of the Defendants have been served in this
matter. The Court granted Plaintiffs an extension of time to effect service and warned Plaintiffs
that this action would be dismissed should they fail to serve Defendants. Having failed to provide
proof of service as to any of the named Defendants and having failed to respond to the October
26, 2015 Order to Show Cause, dismissal without prejudice is the only appropriate outcome.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's November 16, 2015 Report-Recommendation
and Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that this matter is DISMISSED without prejudice; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 14, 2015
Albany, New York

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