Naik v. Modern Marketing Concepts, Inc. et al

Filing 9

DECISION AND ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and ADOPTED in its entirety; and it is furtherORDERED, that Plaintiffs application for leave to proceed in forma pauperis (Dkt. No. 5) is DENIED without prejudice; ORDERED, that Plaintiffs complaint (Dkt. No. 1) is DISMISSED without prejudice; and it is further ORDERED, that if Plaintiff wishes to proceed with this action he must file an amended complaint within thirty days of the filing date of this Decision and Order ; and it is further ORDERED, that in the event Plaintiff fails to file a signed amended complaint within thirty days of the filing date of this Decision and Order, the Clerk shall enter judgment without further order of this Court dismissing this act ion without prejudice for Plaintiffs failure to state a claim upon which relief can be granted; and it is furtherORDERED, that all pleadings, motions, and other documents relating to this action must bear the case number assigned to this action and b e filed with the Clerk of the United States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse, New York 13261-7367. Plaintiff must comply with any requests by the Clerks Office for any documents that are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in filing motions; motions will be decided on submitted papers, without oral argument, unless otherwise ordered by this Court . Plaintiff is also required to promptly notify the Clerks Office and all parties or their counsel, in writing, of any change in his address; his failure to do so will result in the dismissal of this action. Signed by Senior Judge Lawrence E. Kahn on December 04, 2017. (Copy served via regular mail)(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CALEB NAIK,
Plaintiff,
-against-

3:17-CV-0613 (LEK/DEP)

MODERN MARKETING CONCEPTS, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
This matter comes before the Court following a report-recommendation filed on

September 19, 2017, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 4 (“Report-Recommendation”). Pro se plaintiff
Caleb Naik timely filed objections. Dkt. No. 8 (“Objections”).
II.

LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008), abrogated on
other grounds by Widomski v. State Univ. of N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see
also Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)

(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” § 636(b). Otherwise, a court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” Id.
III.

DISCUSSION
Although Plaintiff submitted a filing in response to the Report-Recommendation, he did

not include any specific objections to Judge Peebles’s findings or recommendations. Objs. at 1.1
Plaintiff did provide a copy of a right-to-sue letter from the Equal Employment Opportunity
Commission, Objs. at 4, which he did not include in his original filing, Rep.-Rec. at 11. While
Judge Peebles recommended dismissing the complaint based on Plaintiff’s failure to submit a
right-to-sue letter, Rep.-Rec at 11, he also recommended dismissal because “the complaint fails
to allege facts plausibly suggesting that plaintiff suffered from a ‘disability,’” id. at 12–13. Judge
Peebles’s conclusion was correct, even in light of the exhibits Plaintiff provided in response to
the Report-Recommendation; Plaintiff’s allegations do not suggest that he suffered
discrimination by the Defendants because of a disability.
The Court has reviewed the Report-Recommendation for clear error and has found none.

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The cited page numbers for this document refer to those generated by the Court’s
electronic filing system (“ECF”).
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IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 4) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s application for leave to proceed in forma pauperis (Dkt.
No. 5) is DENIED without prejudice;
ORDERED, that Plaintiff’s complaint (Dkt. No. 1) is DISMISSED without prejudice;
and it is further
ORDERED, that if Plaintiff wishes to proceed with this action he must file an amended
complaint within thirty days of the filing date of this Decision and Order;2 and it is further
ORDERED, that in the event Plaintiff fails to file a signed amended complaint within
thirty days of the filing date of this Decision and Order, the Clerk shall enter judgment without
further order of this Court dismissing this action without prejudice for Plaintiff’s failure to state a
claim upon which relief can be granted; and it is further
ORDERED, that all pleadings, motions, and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with any requests by the Clerk’s Office

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Any amended complaint, which shall supersede and replace the original complaint in its
entirety, must allege claims of misconduct or wrongdoing against each named defendant that
Plaintiff has a legal right to pursue, and over which jurisdiction may properly be exercised. Any
amended complaint filed by Plaintiff must also comply with the pleading requirements of Rules 8
and 10 of the Federal Rules of Civil Procedure.
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for any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions; motions will be decided on
submitted papers, without oral argument, unless otherwise ordered by this Court. Plaintiff is also
required to promptly notify the Clerk’s Office and all parties or their counsel, in writing, of any
change in his address; his failure to do so will result in the dismissal of this action; and it is
further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

December 04, 2017
Albany, New York

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