Munoz v. Tiano's Construction Corp. et al

Filing 44

ADOPTION OF REPORT AND RECOMMENDATION: Plaintiff's Objections are insufficient to trigger de novo 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 t he Report and Recommendation of United States Magistrate Judge Henry Pitman, dated June 22, 2012, be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety. This action is hereby DISMISSED as to Defendant Lloyd Ambinder, Esq. This Order resolves the Motion at Docket Number 11. The Court certifies, pursuant to 26 U.S.C. section 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. (Signed by Judge Deborah A. Batts on 2/11/2013) (pl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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

JOSE DELIO MUNOZ,

Plaintiff,

v.

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

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

------------------------------------X
DEBORAH A. BATTS, United States District Judge.
This matter is before the Court upon the June 22, 2012
Report and Recommendation (Docket Number 37) of United States
Magistrate Judge Henry B. Pitman (the uReport"). Judge Pitman's
Report recommends that this action be dismissed against Defendant
Lloyd Ambinder, Esq. for lack of subject matter jurisdiction.
UWithin 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 proposed findings and
recommendations."
636(b} (1) (C).

Fed. R. Civ. P. 72(b) (2); accord 28 U.S.C.

§

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

A district court

must review de novo Uthose portions of the report or specified
proposed findings or recommendations to which objection is made."
28 U.S.C.

§

636{b} (1) (C).

However, Uto 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)

28 U.S.C.

§

(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

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. Diet. LEXIS 55034, at *2-3
2

(S.D.N.Y. July 21, 2008)

(internal quotation marks omitted».

On July 0, 2012, Plaintiff filed an "Affirmation in
opposition to Motion Continuation of Question #3," which the
Court construes as an Objection to the Report. 1 Plaintiff's
Objection does not address or rebut the Report's finding that
there is no basis on which the Court can exercise subject matter
jurisdiction over the claim against Defendant Ambinder.
at 8.)

(Report

Instead, Plaintiff reiterates his previous argument that

he was underpaid.
Plaintiff's Objections are insufficient to trigger de novo
review of the Report.
clear error.

The Court therefore reviews the Report for

The Court having found none, it is hereby ORDERED

AND ADJUDGED that the Report and Recommendation of United States
Magistrate Judge Henry Pitman, dated June 22, 2012, be and the
same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in
its entirety.

This action is hereby DISMISSED as to Defendant

Lloyd Ambinder, Esq.

lPlaintiff filed additional Objections on July 23, 2012 and
September 11, 2012. It is not clear whether Plaintiff intended to
object to this Report or other Reports filed in this matter (see
Docket Nos. 34 and 38). Even were the Court to construe these
Objections as responsive to this Report, they are insufficient to
trigger de novo review because they are not clearly aimed at
Judge Pitman's findings and merely reiterate Plaintiff's prior
arguments.
3

This Order resolves the Motion at Docket Number 11.

The

Court certifiee, pureuant to 26 U.S.C. 5 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

f ~~WM\L l\) ')J)\":)
j

Deborah A. Batts
United States District Judge

4