Villa v. Tiano's Construction Corp. et al

Filing 57

ADOPTION OF REPORT AND RECOMMENDATION: for 54 Report and Recommendations. Having conducted the appropriate levels of review of the July 6, 2012 Report and Recommendation of United States Magistrate Judge Henry B. Pitman, this Court APPROVES, ADOPTS , and RATIFIES the Report in its entirety. the Court GRANTS Summary Judgment in favor of Defendants Pythagoras, Safeco, Lumbermens and St. Paul and this action is DISMISSED as to those Defendants. This Order resolves the Motions at Docket Number 15 a nd 25. 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). (Signed by Judge Deborah A. Batts on 9/6/2012) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---x
DANILO VILLA,
Plaintiff,

v.

11 Civ. 3026 (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 July 6, 2012 Report
and Recommendation of United States Magistrate Judge Henry B.
Pitman (the "Report").

Judge Pitman's Report recommends that

summary judgment be granted dismissing this action as to
Defendants Pythagoras General Contracting Corp.

("Pythagoras"),

Safeco Insurance Company of North America ("Safeco"), Lumbermens
Mutual Casualty Company ("Lumbermens") and St. Paul Mercury
Insurance Company ("St. Paul").

(Report at 2, 11.) For the

reasons set forth below, after a de novo review following
Plaintiff's objections, the Report and Recommendation of
Magistrate Judge Pitman dated July 7, 2012 shall be adopted in
its entirety. Accordingly, the Court GRANTS Summary Judgment in
favor of Defendants Pythagoras, Safeco, Lumbermens and St. Paul

and this action is DISMISSED as to those Defendants.

I.

Objections to the Report and Recommendation
"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 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.

Wilds v. United Parcel

Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).

A district

court must review de novo "those portions of the report or
specified proposed findings or recommendations to which objection
is made."

28 U. S. C.

§

636 (b) (1) (C). "To the extent, however,

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."

Indymac Bank, F.S.B. v.

Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008); 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

2

to engage the district court in a rehashing of the same arguments
set forth in the original petition.")
quotation marks omitted).

(citation and internal

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.

28 U.S.C.

§

636(b) (1) (C).

Plaintiff Danilo villa filed timely Objections to the Report
claiming that res judicata does not apply to his case because the
New York state court "took [the] wrong decision."

(Obj. at 1-2.)

Plaintiff's Objections also indicate his dissatisfaction with the
state court decision concerning sufficiency of evidence, the
failure to allow the jury to reach a verdict, and because he
believes the case was dismissed due to failed mediation.

(Obj. at

2-3.) While Plaintiff is clearly dissatisfied with the outcome of
his case in New York state court, he does not contest Judge
Pitman's finding that he and others commenced an action in New
York State court against a number of contractors and insurance
companies seeking unpaid wages and benefits.

(Report at 3.) Nor

does Plaintiff contest Judge Pitman's conclusion that his claims
here appear to be an attempt to relitigate the claims he asserted

in state court.

(Report at 5-6.)

3

After a de novo review, the Court accepts and adopts the

findings and recommendation that Plaintiff's claims against
Defendants Pythagoras, Safeco, Lumbermens and St. Paul are barred
by the doctrine of res judicata. As Judge Pitman's Report notes,
a party who is dissatisfied with the outcome of a hearing or
trial cannot recommence a new action asserting the same claim a
second time in the hope of obtaining a different result.
United States v. Tohono O'Odham Nation, 131 S.Ct. 1723, 1730
(2011)
.

(\\[T]he doctrine of claim preclusion, or res judicata,

. . bars repetitious suits involving the same cause of action

once a court of competent jurisdiction has entered a final
judgment on the merits")

(internal quotation marks removed). The

Court also accepts and adopts, after de novo review, the Report's
findings that New York's transactional approach to res judicata
bars Plaintiff's claims here. Under that approach,

\\once a claim

is brought to a final conclusion, all other claims arising out of
the same transaction or series of transactions is barred, even if
based upon different theories or if seeking a different remedy."
Giannone v. York Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir.
: 2008) .
Finally, after de novo review, the Court accepts and adopts
the Report's finding in the alternative that any Fair Labor
Standards Act (\\FLSA") claims that Plaintiff may have are now
4

time barred.

(Report at 10.) Plaintiff's Complaint expressly

alleges that his claims arise out of events occurring between
1998 and 2000.

(Compl. at

§

III (B) .) A FLSA action must be

commenced within three years of willful violations, and two years
of non-willful violations. The Complaint in this action was filed
on April 28, 2011, approximately eight years after the expiry of
the more favorable limitations period. The Court therefore adopts
the Report's findings that Plaintiff's claims are, in the
alternative, time barred.

II.

Conclusion
Having conducted the appropriate levels of review of the

July 6, 2012 Report and Recommendation of United States
Magistrate Judge Henry B. Pitman, this Court APPROVES, ADOPTS,
and RATIFIES the Report in its entirety.

the Court GRANTS

Summary Judgment in favor of Defendants Pythagoras, Safeco,
Lumbermens and St. Paul and this action is DISMISSED as to those
Defendants.
This Order resolves the Motions at Docket Number 15 and 25.
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

5

an appeal.

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

(1962) ,

SO ORDERED.
Dated:-

New York, New York

a.

September 6, 2012

Deborah A. Batts

United States District Judge

6