Walcker v. Truex & Hovey et al

Filing 5

DECISION & ORDER: The Court accepts and adopts Magistrate Judge Dancks' 3 Order and Report-Recommendation in its entirety. The 1 complaint is DISMISSED without prejudice and without leave to amend for lack of subject matter jurisdiction.Signed by Senior Judge Thomas J. McAvoy on 10/3/2017. (Copy served via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JOE DELANO WALCKER III,
Plaintiff,
5:17-cv-889
(TJM/TWD)

v.
TRUEX & HOVEY, RICHARD D. HOVEY, and
CAROL HOVEY,
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action involving a real property dispute between private actors, (Dkt.

No. 1), was referred to the Hon. Thérèse Wiley Dancks, United States Magistrate Judge,
for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In her September 13, 2017 Order and Report-Recommendation, Dkt. No. 3, Magistrate
Judge Dancks recommends that the complaint (Dkt. No. 1) be dismissed without
leave to amend for lack of subject matter jurisdiction. Plaintiff Joe Delano Walcker III filed
objections to the Order and Report-Recommendation. See Obj., dkt. # 4.
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged,

the district court makes a “de novo determination of those portions of the report or
1

specified proposed findings or recommendations to which objection is made.” See 28
U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997) (The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate’s findings.).
After reviewing the report and recommendation, the Court may “accept, reject, or
modify, in whole 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.” 28 U.S.C. § 636(b).
III.

DISCUSSION
Having considered Plaintiff’s objections and having completed a de novo review of

the issues raised by the objections, the Court has determined to adopt Magistrate Judge
Dancks’s recommendations for the reasons stated in her thorough report. Further, the
Court finds that the dismissal must be without prejudice. 1 See Hernandez v. Conriv Realty
Assocs., 182 F.3d 121, 123 (2d Cir. 1999)(W hen a case is dismissed for lack of federal
subject matter jurisdiction, “Article III deprives federal courts of the power to dismiss [the]
case with prejudice.”).
IV.

CONCLUSION
Accordingly, the Court accepts and adopts Magistrate Judge Dancks’s Order and

Report-Recommendation (Dkt. # 3) in its entirety. The complaint (Dkt. No. 1) is
DISMISSED without prejudice and without leave to amend for lack of subject matter
jurisdiction.

1
A dismissal without prejudice in this court allows the plaintiff to file an action concerning the same
real property dispute in state court.

2

IT IS SO ORDERED.
Dated:October 3, 2017

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