Wendt v. United States Department of Agriculture Farm Service Agency et al

Filing 15

MEMORANDUM-DECISION AND ORDER : for the reasons stated in this Order, it is hereby ORDERED, that Magistrate Judge David E. Peebles' August 13, 2012 12 Report-Recommendation and Order is ADOPTED in its entirety; and it is further ORDERED, tha t Wendt's Amended Complaint (Dkt. 11) is DISMISSED without leave to renew; and it is further ORDERED, that the Clerk close this case; and it is further ORDERED, that the Clerk provide a copy of this Memorandum-Decision and Order to the parties by certified mail. Signed by Chief Judge Gary L. Sharpe on 9/5/2012. (Attachments: # 1 Copy of Report-Recommendation and Order of Magistrate Judge David E. Peebles datede 8/13/2012) (sg)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DONALD P. WENDT,
Plaintiff,

5:12-cv-342
(GLS/DEP)

v.
UNITED STATES DEPARTMENT
OF AGRICULTURE FARM
SERVICE AGENCY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Donald P. Wendt
Pro Se
1435 Quaker Road
Macedon, NY 14502
FOR THE DEFENDANTS:
NO APPEARANCE1
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Donald P. Wendt commenced this action against the
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Service on defendants has not yet been permitted as this case
comes to the court as part of the preliminary review under 28 U.S.C. §
1915.

United States Department of Agriculture and fourteen of its employees,
alleging various tort and contract claims. (See Compl., Dkt. No. 1.) In a
Report-Recommendation and Order (R&R) filed May 2, 2012, Magistrate
Judge David E. Peebles recommended that Wendt’s Complaint be
dismissed in its entirety, with leave to renew all of his claims except his
misrepresentation, fraud and intentional interference with contract claims
under the Federal Tort Claims Act (FTCA). (See generally R&R, Dkt. No.
5.) On May 24, 2012, the court, in the absence of any objections from
Wendt, entered an Order adopting the R&R. (See Dkt. No. 6.) However,
on June 1, 2012, after receiving this court’s Order, Wendt filed a letter brief
in which he took exception with the R&R. (See Dkt. No. 9.) The court
construed that brief as an objection to the R&R, but ultimately, declined to
rescind its previous Order. (See Dkt. No. 10.) Nevertheless, Wendt was
granted additional time to file an amended complaint, which he has since
done. (See Dkt. No. 10 at 4; Am. Compl., Dkt. No. 11.)
Following Judge Peebles’ review of the Amended Complaint, he
issued a new R&R, in which he recommends that Wendt’s Amended
Complaint be dismissed. (See 2d R&R at 6-7, Dkt. No. 12.) Pending are
Wendt’s objections to the new R&R. (See Dkt. Nos. 13, 14.) For the
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reasons that follow, the new R&R is adopted in its entirety, and Wendt’s
Amended Complaint is dismissed without leave to renew.
II. Standard of Review
Before entering final judgment, this court routinely reviews all reportrecommendation and orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006).
Where no party has filed an objection, only vague or general objections are
made, or a party resubmits the same papers and arguments already
considered by the magistrate judge, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id. at *4-5.
III. Discussion
Albeit counterintuitive, Wendt’s objections actually provide further
support for Judge Peebles’ recommendation. This is so because the
principal defect identified by Judge Peebles is that the amount in
controversy on the breach of contract claim exceeds $10,000, and thus,
pursuant to the Tucker Act, may only be brought in the Court of Claims.
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(See 2d R&R at 5.) Rather than presenting evidence to minimize his claim,
Wendt states damage estimates ranging from $150,000 to $450,000. (See
Dkt. No. 14 ¶¶ 4-5.) Likewise, his allegation that the purportedly breached
contract was worth $89,254.30 only furthers Judge Peebles’ conclusion.
(Id. ¶¶ 4, 6.) Despite his continued dissatisfaction with the court, Wendt
failed to reference any specific errors in Judge Peebles’ new R&R, and/or
cure the jurisdictional defect which prevents this court from adjudicating his
claim.2 (See generally id.) As they were before, Wendt’s bald assertions of
wrongdoing are insufficient to warrant de novo review. See Almonte, 2006
WL 149049, at *4-5. As such, having found no clear error in the new R&R,
the court adopts it in its entirety.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ August 13, 2012
Report-Recommendation and Order (Dkt. No. 12) is ADOPTED in its
entirety; and it is further
ORDERED that Wendt’s Amended Complaint (Dkt. No. 11) is

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Should he wish pursue his claim, Wendt would be well-served by
carefully reading footnote 1 of Judge Peebles’ second R&R.
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DISMISSED without leave to renew; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties by certified mail.
IT IS SO ORDERED.
September 5, 2012
Albany, New York

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