Harding v. Paramount Pictures et al

Filing 37

ADOPTION OF REPORT AND RECOMMENDATION: 32 Report and Recommendations, For the reasons set forth below, the Court having conducted the appropriate levels of review following Plaintiffs Objections, the Report and Recommendation of Magistrate Judge Pi tman dated January 16, 2013 shall be adopted in its entirety. Accordingly, the Court GRANTS Defendants Motion for Summary Judgment. Plaintiffs Objections are insufficient to trigger de novo review of the Report. The Court therefore reviews the Repor t for clear error. Having found none, it is hereby ORDERED AND ADJUDGED that the Report and Recommendation of United States Magistrate Judge Henry Pitman, dated January 16, 2013, be and the same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in its entirety. This action is hereby DISMISSED. 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 3/28/2013) (ago)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------X
BENNIE HARDING,
Plaintiff,

12 Civ. 66 (DAB)
ADOPTION OF REPORT
AND RECOMMENDATION

v.
PARAMOUNT PICTURES and VIACOM INC.,
Defendants.
------------------------------------X

DEBORAH A. BATTS, United States District Judge.
On January 16, 2013, United States Magistrate Judge Henry
Pitman issued a Report and Recommendation (“Report”) recommending
that Defendants Paramount Pictures (“Paramount”) and Viacom
Inc.’s (“Viacom”) (collectively, the “Defendants”) Motion for
Summary Judgment be GRANTED.1

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 January 16, 2013 shall be
adopted in its entirety.

Accordingly, the Court GRANTS

Defendants’ Motion for Summary Judgment.
A judge may designate a magistrate judge to submit proposed
findings of fact and recommendations for dispositive motions,

1

On September 26, 2012, Magistrate Judge Pitman notified
Parties that the Court would treat Defendants’ Motion, initially
filed as a motion pursuant to Rule 12(b)(6), as a Motion for
Summary Judgment pursuant to Rule 12(d) of the Federal Rules of
Civil Procedure because Plaintiff and Defendants submitted
material that went beyond the Complaint.

including a motion for summary judgment or a motion to dismiss.
28 U.S.C. § 636(b)(1)(B); accord Fed. R. Civ. P. 72(b)(1).
“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. §

A 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.”

28 U.S.C. § 636(b)(1)(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); 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
2

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).

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, No.

09 Civ. 1651, 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 Civ. 5023, 2008
WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (internal quotation
marks omitted)).
Plaintiff filed timely Objections to the Report.

The Report

recommends that the Court grant summary judgment in favor of
Defendants on grounds of res judicata.

(Report 12-22.) In the

alternative, the Report recommends summary judgment because the
contract did not impose any obligation beyond paying Plaintiff
$225 for each day he spent filming, and even if there was an
obligation for Defendants to pay Plaintiff for the use of his

3

likeness, there was no resemblance between Plaintiff and the
video game character.

(Report 22-28.) Although Plaintiff’s

Objection expresses his belief that there was a contract that did
not permit the use of his likeness in the video game, he does not
specifically address or rebut the Report’s findings regarding res
judicata, contract interpretation, and Plaintiff’s resemblance to
the video game character.

Instead, he merely reiterates his

previous arguments when he argues that the contract does not
permit Defendants’ use of his likeness and that he was not an
extra.2

(Report 24; Dkt. # 26, at 3; Compl. ¶ 34.)

Plaintiff’s Objections are insufficient to trigger de novo
review of the Report.
clear error.

The Court therefore reviews the Report for

Having found none, it is hereby ORDERED AND

ADJUDGED that the Report and Recommendation of United States
Magistrate Judge Henry Pitman, dated January 16, 2013, be and the
same hereby is APPROVED, ADOPTED, and RATIFIED by the Court in
its entirety.

This action is hereby DISMISSED.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),

2

In his Objection, Plaintiff submits two photographs to
demonstrate his likeness to the video game character. One
photograph was previously submitted. (Dkt. # 26.) The other was
from a high school class photograph taken in 1975, and it
immaterial because Plaintiff previously submitted twelve pages of
photographs to demonstrate his likeness and the film at issue was
shot in 1978.
4

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
March 28, 2013

5