CUPERSMITH et al v. PIAKER & LYONS, P.C. et al

Filing 111

DECISION AND ORDER granting Defts' 87 Cross Motion for Sanctions. The claims of Pltfs Macon Nixon, Audrey Nixon, Barry DeSantis and Jeanne DeSantis are hereby dismissed based upon their failure to appear for deposition. Pltf's appeal of M agistrate Judge Peebles' non-dispositive order awarding costs and atty's fees to the Defts is hereby dismissed. Adopting 100 Report and Recommendation of Magistrate Judge Peebles. Signed by Senior Judge Thomas J. McAvoy on 2/5/16. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
NEAL A. CUPERSMITH, et al.,
Plaintiffs,
-vs-

3:14-CV-1303
(TJM/DEP)

PIAKER & LYONS, P.C., et al.,
Defendants.

Thomas J. McAvoy,
United States District Judge
DECISION and ORDER
This matter was referred to the Hon. David E. Peebles, United States Magistrate
Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule
72.3(d) of the Local Rules of the Northern District of New York in this case involving claims
of financial fraud against the Defendants.
Magistrate Judge Peebles recommends that the Court grant the Defendants’ crossmotion for sanctions and dismiss the claims of Macon L. Nixon, Audrey E. Nixon, Barry
DeSantis and Jeanne A. DeSantis because they have refused to appear for depositions
despite knowledge that failing to appear could result in sanctions, including dismissal.
Plaintiffs filed timely objections to the Report-Recommendation pursuant to 28
U.S.C. § 636(b)(1). When objections to a magistrate judge’s Report-Recommendation are
lodged, the Court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which the objection is made.” See 28
U.S.C. §636(b)(1). After such a review, the Court may “accept, reject, or modify, in whole
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or in part, the findings or recommendations made by the magistrate judge. The judge may
also receive further evidence or recommit the matter to the magistrate judge with
instructions.” Id.
Having reviewed the record de novo and having considered the issues raised in the
Plaintiffs’ objections, this Court has determined to accept the recommendation of
Magistrate Judge Peebles for the reasons stated in the Report-Recommendation.
Plaintiffs also timely objected to Magistrate Judge Peeble’s order awarding
attorneys fees and costs to the Defendants pursuant to Federal Rule of Civil Procedure 37
for the costs of preparing their cross motion and the costs of preparing for the depositions
in question. Though styled as an “objection,” the Court will construe Plaintiffs’ filing as an
appeal of a non-dispositive order from a magistrate judge, as that part of Magistrate Judge
Peebles’ decision was an order, not a recommendation to this Court. It also concerned an
issue that did not potentially dispose of the case.
A district court judge reviewing a magistrate judge’s non-dispositive pretrial
order may not modify or set aside any part of that order unless it is clearly erroneous or
contrary to law. Labarge v. Chase Manhattan Bank, N.A., 1997 U.S. Dist. LEXIS 13803,
1997 WL 5853122, at *1 (N.D.N.Y. Sept. 3, 1997) (citing 28 U.S.C. § 636(b)(1)); F ED. R.
CIV. P. 72(a); Mathias v. Jacobs, 167 F.Supp.2d 606, 621-23 (S.D.N.Y. 2001); Dubnoff v.
Goldstein, 385 F.2d 717, 721 (2d Cir. 1967) (court’s decision “not to disq ualify himself is
ordinarily reviewable only upon appeal from a final decision on the cause in which the
application . . . was filed.”). Findings are clearly erroneous when the reviewing court is
firmly convinced the lower court decided an issue in error. Lanzo v. City of New York,
1999 U.S. Dist. LEXIS 16569, 1999 WL 1007346, *2-3 (E.D.N.Y. Sept. 21, 1999). This
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standard imposes a heavy burden on the objecting party, and only permits reversal where
the district court determines the magistrate judge “abused his broad discretion over
resolution of discovery matters.” Labarge, 1997 U.S. Dist. LEXIS 13803, 1997 WL
583122 at *1.
The Court finds no clear error or finding contrary to law in Magistrate Judge
Peebles’ decision to award attorneys fees to Defendants as a sanction for Plaintiffs’
refusal to appear at depositions concerning the case they filed. Plaintiffs’ appeal of that
non-dispositive order will therefore be dismissed.
Accordingly, the Report and Recommendation of Magistrate Judge Peebles is
hereby ADOPTED, and:
1. The Defendants’ cross-motion for sanctions, dkt. # 87, is hereby
GRANTED;
2. The claims of Plaintiffs Macon L. Nixon, Audrey E. Nixon, Barry DeSantis
and Jeanne A. DeSantis are hereby dismissed based upon their failure to
appear for deposition; and
3. Plaintiffs’ appeal of Magistrate Judge Peebles’ non-dispositive order
awarding costs and attorneys fees to the Defendants is hereby DISMISSED.
IT IS SO ORDERED.
Dated: February 5, 2016

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