Jiminez v. Junius Real Estate et al

Filing 52

ORDER ADOPTING REPORT & RECOMMENDATION for 35 Report and Recommendations, 19 Motion for Miscellaneous Relief filed by Justin Marcel Jimenez. For the reasons set forth above, the R&R is ADOPTED IN FULL. Accordingly, Plaintiff's motion for injunctive relief is DENIED. The Clerk of the Court is respectfully directed to close the open motion at docket entry 19. (Signed by Judge Valerie E. Caproni on 4/21/2017) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JUSTIN MARCEL JIMENEZ,
:
:
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Plaintiff,
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-against:
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JUNIS REAL ESTATE, et al.,
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 4/21/2017

16-CV-7483 (VEC) (JLC)
ORDER ADOPTING
REPORT &
RECOMMENDATION

VALERIE CAPRONI, United States District Judge:
Justin Marcel Jimenez, proceeding pro se, brought this action for discrimination under
the “Civil Rights Act of 1960” and for violation of the “Sherman Antitrust Act of 1890” in the
Bronx County Supreme Court against Defendants JPMorgan Chase Bank, N.A. (sued as “Junius
Real Estate”), John Fraser, and Rich Gomel (together “Defendants”) on August 8, 2016. Notice
of Removal (Dkt. 1) at 1 (citing Compl. ¶¶ 3-6). On September 26, 2016, Defendants removed
the action to federal court. Notice of Removal at 1. The Court referred the action to Magistrate
Judge Cott for general pretrial supervision and for the preparation of a report and
recommendation pursuant to 28 U.S.C. § 636(b) for all substantive motions. Order Referring
Case to Magistrate Judge (Dkt. 7). On November 4, 2016, Jimenez requested a freeze of
Defendants’ assets. Pl.’s Mot. (Dkt. 19).
After briefing by all parties (Dkts. 23, 31, 33), Magistrate Judge Cott issued a report and
recommendation, construing Plaintiff’s motion as a motion for preliminary injunction and
recommending that it be denied. Report and Recommendation (Dkt. 35) (“R&R”) at 2. Jimenez
objected to the R&R. Obj. to R&R (Dkt. 36) (“Obj.”).

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DISCUSSION
In reviewing a report and recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). The standard of review employed by the district court depends on
whether timely and specific objections to the report have been made. Williams v. Phillips, No.
03-CV-3319 (KMW), 2007 WL 2710416, at *1 (S.D.N.Y. Sept. 17, 2007). To accept those
portions of the report to which no timely objection has been made, “a district court need only
satisfy itself that there is no clear error on the face of the record.” King v. Greiner, No. 02-CV5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (quoting Wilds v. United Parcel
Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)). Where, however, specific objections to
the magistrate’s report have been made, “[t]he district judge must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3);
see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To the extent that a party’s
objections “are conclusory or general, or simply reiterate original arguments, the district court
reviews the [report] for clear error.” Pineda v. Masonry Const., Inc., 831 F. Supp. 2d 666, 671
(S.D.N.Y. 2011).
In general, the objections of pro se parties are construed liberally and are read to “raise
the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir.
2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). “Nonetheless, even a pro
se party’s objections to a [r]eport and [r]ecommendation 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.” Machicote v. Ercole, No. 06-CV-13320 (DAB),

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2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (quoting Howell v. Port Chester Police
Station, 09-CV-1651 (CS), 2010 WL 930981, at *1 (S.D.N.Y. Mar. 10, 2010)).
The clear-error standard of review applies here. Jimenez’s objection merely reiterates, in
general terms, the arguments set forth in his original motion. The Court concludes that the R&R
is free of clear error. “A party seeking preliminary injunctive relief must establish: (1) either (a)
a likelihood of success on the merits of its case or (b) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in
its favor, and (2) a likelihood of irreparable harm if the requested relief is denied.” Madison
Square Garden, L.P. v. Nat’l Hockey League, 270 F. App’x 56, 58 (2d Cir. 2008) (quoting Time
Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 152-53 (2d Cir. 2007)). Magistrate Judge
Cott considered these factors and concluded that “Jimenez’s request that the Court freeze
Defendants’ assets consists of nothing more than conclusory statements relating to his allegation
that ‘the Defendants are running their business illegally,’” R&R at 2, and that, “Jimenez cite[d]
to no legal authority that would authorize the Court to issue his requested injunction,” R&R at 23. To the extent Jimenez takes issue with the R&R – a fact not at all clear given that Jimenez
states that he “did not intend to seek injunctive relief necessarily,” Obj. ¶ 2 – he does so by
reference to his underlying pleadings and irrelevant facts regarding his personal circumstances.
See Obj. ¶¶ 3-4. The objection does not cite any legal authority that might support his request
for injunctive relief. While the Court is not unsympathetic to Jimenez’s personal circumstance,
for all the reasons ably articulated by Magistrate Judge Cott, the Court concurs that Jimenez has
not demonstrated that he is entitled to injunctive relief because he has not demonstrated either a
likelihood of success on the merits or a risk of irreparable harm. R&R at 2-3.

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CONCLUSION
For the reasons set forth above, the R&R is ADOPTED IN FULL. Accordingly,
Plaintiff’s motion for injunctive relief is DENIED. The Clerk of the Court is respectfully
directed to close the open motion at docket entry 19.
SO ORDERED.
____________________________
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CAPRONI
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VALERIE CAPRONI
United States District Judge

Date: April 21, 2017
New York, New York

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