Schisler, Sr. et al v. James Cars of Rome, LLC et al
Filing
8
DECISION AND ORDER accepting and adopting # 5 Magistrate Judge Dancks' Report and Recommendation in its entirety, and Plaintiffs' Complaint is dismissed without prejudice to refilling in State Court. Signed by Chief Judge Glenn T. Suddaby on 12/22/16. (Copy served upon pro se plaintiff via regular and certified mail) (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
WILLIAM G. SCHISLER, SR.; and
ANNETTE M. SCHISLER,
Plaintiffs,
6:16-CV-1382
(GTS/TWD)
v.
JAMES CARS OF ROME, LLC; and
RICHARD HUBBARD, Sales Associate,
Defendants.
__________________________________________
APPEARANCES:
WILLIAM G. SCHISLER, SR.,
and ANNETTE M. SCHISLER
Plaintiffs, Pro Se
908 State Street
Utica, New York 13502
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by William G. Schisler,
Sr., and Annette M. Schisler (“Plaintiffs”) against James Cars of Rome, LLC, and Richard
Hubbard (“Defendants”), are (1) United States Magistrate Judge Thérèse Wiley Dancks’ ReportRecommendation recommending that Plaintiffs’ Complaint be sua sponte dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e), and (2) Plaintiffs’ Objection to the ReportRecommendation. (Dkt. Nos. 5, 7.) For the reasons set forth below, the Court accepts and
adopts the Report-Recommendation.
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1
However, when only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
“clear error” review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.2 Similarly, when no objection is made to a portion of a
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When
performing such a clear-error review, “the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.” Id.3
Generally, in their Objection, Plaintiffs do not challenge a specific portion of the ReportRecommendation; rather, they elaborate on the factual allegations regarding how Defendants
1
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2
See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999)
3
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
2
wronged them in the sale of their truck and the purchase or lease of a used Chevrolet Impala.
(Dkt. No. 7.) As a result, the Report-Recommendation is entitled to only a clear-error review.
After carefully reviewing the relevant filings in this action, the Court can find no clear
error in the Report-Recommendation: Magistrate Judge Dancks employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court
accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 5.) To
those reasons, the Court adds the following two points.
First, even if the Court were to subject Magistrate Judge Dancks’ ReportRecommendation to a de novo review, it would find that the Report-Recommendation survives
that review. While the Report-Recommendation does not specify which portion of 28 U.S.C. §
1915(e)(2)(B) it relies on, the Court find that it may rely on 28 U.S.C. § 1915(e)(2)(B)(i), which
permits sua sponte dismissals of pleadings that have been filed in forma pauperis if the pleading
are frivolous. Specifically, the Court finds that Plaintiffs’ claims are frivolous to the extent they
purport to be federal in nature. The closest Plaintiffs come to asserting a federal claim is by
alleging that one or both of them are afflicted with some sort of disability. (Dkt. No. 1, at ¶ 5.)
However, they do not allege facts plausibly suggesting (1) that they have a disability under a
federal statute which prohibits disability discrimination, and (2) that Defendants discriminated
against them because of that disability (or even knew of that disability). (Id. at ¶ 4.) Nor can the
Court imagine factual allegations consistent with Plaintiff’s Complaint (and Objection) that
would cure the defect in such a purported federal claim. Moreover, even without 28 U.S.C. §
1915(e)(2), the Court may sua sponte dismiss Plaintiff’s Complaint for lack of subject-matter
jurisdiction under Fed. R. Civ. P. 12(h)(3).
Second, the fact that in their Objection Plaintiffs elaborate on the factual allegations
3
regarding how Defendants wronged them in the sale of their truck and the purchase or lease of a
used Chevrolet Impala leads the Court to believe that they may have missed the thrust of the
Report-Recommendation. Plainly stated, the Report-Recommendation is not concluding that
Plaintiffs’ state-law claims (for fraud, fraudulent misrepresentation and/or violation of New York
General Business Law § 349) are without merit.4 Rather, the Report-Recommendation is
concluding merely that Plaintiffs cannot pursue those state-law claims in this federal court under
the circumstances. The Court agrees.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 5) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED, that Plaintiffs’ Complaint (Dkt. No. 1) is DISMISSED without prejudice
to refiling in state court.
Dated: December 22, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
4
The Court notes that, while Plaintiffs deny ever receiving a contract regarding the
automobile, it is conceivable to the Court that Plaintiffs may also possess claims for breach of
contract and perhaps unjust enrichment.
4
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