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)

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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 3

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