Munoz v. Tiano's Construction Corp. et al

Filing 42

ADOPTION OF REPORT AND RECOMMENDATION for 38 Report and Recommendations, 14 Motion to Dismiss filed by Safeco Insurance Company of North America, Pythagoras General Contracting Corp. Plaintiff's Objections are insufficient to trigger de nov o review of the Report. The Court therefore reviews the Report for clear error. The Court having found none, it is hereby ORDERED AND ADJUDGED that the Report and Recommendation of United States Magistrate Judge Henry Pitman, dated July 6, 2012, be a nd the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety. This action is hereby DISMISSED as to Defendants Pythagoras and Safeco. This Order resolves the Motion at Docket Number 14. The Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962)., Pythagoras General Contracting Corp. and Safeco Insurance Company of North America terminated. (Signed by Judge Deborah A. Batts on 9/28/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

------------------------------------X

JOSE DELIO MuNoz,

Plaintiff,

11 Civ. 3023 (DAB)
ADOPTION OF REPORT
AND RECOMMENDATION

v.
TIANO'S CONSTRUCTION CORP., et al.,
Defendants.

------------------------------------x
DEBORAH A. BATTS, United States District Judge.
On July 6, 2012, United States Magistrate Judge Henry Pitman
issued a Report and Recommendation ("Report") recommending that
the Motion for Summary Judgment of Defendants Pythagoras General
Contracting Corp.

(IiPythagoras") and Safeco Insurance Company of

North America (IiSafeco ll ) be GRANTED.

(Report at 10-11.)

For the

reasons set forth below, the Court having conducted the
appropriate levels of review following Plaintiff's Objections,
the Report and Recommendation of Magistrate Judge Pitman dated
July 6, 2012 shall be adopted in its entirety.

Accordingly, the

Court GRANTS Defendants Pythagoras and Safeco's Motion for
Summary Judgment.
A judge may designate a magistrate judge to submit proposed
findings of fact and recommendations for the disposition of a
motion for summary judgment.
Fed. R. Civ. P. 72(b) (1).

28 U.S.C.

§

636(b) (1)

(B)i

accord

"Within fourteen days after being

served with a copy [of a magistrate judge's Report and

Recommendation], a party may serve and file specific written
objections to the proposea finaings and recommendations."
R. Civ. P. 72 (b) (2); accord 28 U.S.C. § 636 (b) (1) (C).

Fed.

The Court

may adopt those portions of the Report to which no timely
objection has been made, as long as there is no clear error on
the face of the record.

DiPilato v. 7-Eleven, Inc., 662 F. Supp.

2d 333, 339 (S.D.N.Y. 2009).

A district court must review de

novo "those portions of the report or specified proposed findings
or recommendations to which objection is made."
636(b) (1) (C).

28 U.S.C.

§

However, "to the extent that the party makes only

conclusory or general arguments, or simply reiterates the
original arguments, the Court will review the Report strictly for
clear error."

DiPilato, 662 F. Supp. 2d at 339 (internal

quotation marks omitted); see also Ortiz v. Barkley, 558 F. Supp.
2d 444, 451 (S.D.N.Y. 2008)

("Reviewing courts should review a

report and recommendation for clear error where objections are
merely perfunctory responses, argued in an attempt to engage the
district court in a rehashing of the same arguments set forth in
the original petition.")

(internal quotation marks omitted).

After conducting the appropriate levels of review, the Court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate.
636 (b) (1) (C) .
2

28 U.S.C.

§

The objections of pro se parties are "generally accorded
leniency and should be construed to raise the strongest arguments
that they suggest.

Howell v. Port Chester Police Station, 2010

1I

WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)

(citation omitted) .

"Nonetheless, even 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."

Id.

(quoting Pinkney v. Progressive Home Health

Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3
(S.D.N.Y. July 21, 2008)

(internal quotation marks omitted».

Plaintiff filed timely Objections to the Report.
Plaintiff's Objections express his wholehearted disagreement with
the Report, but do not specifically address or rebut the Report's
findings that Plaintiff's claims are barred by the doctrine of
res judicata and, in the alternative, that any Fair Labor
Standards Act claims that Plaintiff may have are now time barred.
(Report at 6-10.)

Instead, Plaintiff reiterates his previous

argument that he was underpaid and makes the general argument
that the prior state court decision was unjust and unfair.
Plaintiff's Objections are insufficient to trigger de novo
review of the Report.

The Court therefore reviews the Report for

3

The Court having found none, it is hereby ORDERED

clear error.

AND ADJUDGED that the Report

anQ ReCQmmenQat1Qn Qf Vn1teQ

~tate~

Magistrate Judge Henry Pitman, dated July 6, 2012, be and the
same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in
its entirety.

This action is hereby DISMISSED as to Defendants

Pythagoras and Safeco.
This Order resolves the Motion at Docket Number 14.
Court certifies, pursuant to 28 U.S.C.

§

The

1915{a} (3), that any

appeal from this Order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of
an appeal.

See Coppedge v. United States, 369 U.S. 438, 444-45

{1962} .

SO ORDERED.

Dated:

New York, New York

~k .t8/'JPJ~
Deborah A. Batts

United States District Judge

4