McAllister v. Quick Park et al

Filing 49

ORDER ADOPTING REPORT AND RECOMMENDATION for 37 Motion to Dismiss filed by Quick Park; 48 Report and Recommendations. Accordingly, the Court adopts the R&R in its entirety, and, for the reasons set forth therein, denies Plaintiff's motion for remand and grants Local 917's cross-motion for judgment on the pleadings and Quick Park's motion to dismiss with prejudice. The Clerk of Court is directed to mail a copy of this order to Plaintiff by certified mail, to terminate the motion pending at Dkt. No. 37, and to close this case. SO ORDERED. (Signed by Judge Gregory H. Woods on 9/29/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MORRIS MCALLISTER,
:
:
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Plaintiff,
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-v:
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QUICK PARK and TEAMSTERS LOCAL
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917,
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Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 09/29/2017

1:16-cv-9885-GHW-RLE
ORDER ADOPTING
REPORT AND
RECOMMENDATION

GREGORY H. WOODS, United States District Judge:
On November 28, 2016, Plaintiff Morris McAllister filed this action pro se against Quick
Park and Teamsters Local 917 (“Local 917”) in the Supreme Court of New York, New York
County, alleging that Quick Park had breached the collective bargaining agreement and that Local
917 violated its duty of fair representation with respect to the October 2012 termination of his
employment. Local 917’s Mem. of Law, Dkt. No. 29. On December 22, 2016, Local 917 removed
the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Dkt. No. 1.
On January 11, 2017, the Court referred this matter to Magistrate Judge Ellis for general pretrial, Dkt. No. 10, and, on January 18, 2017, for a Report and Recommendation on Quick Park’s
anticipated motion to dismiss, Dkt. No. 17. On February 8, 2017, Plaintiff filed a motion to remand
the matter based on a “new fact” related to the bargaining agreement. Dkt. No. 20. On February
13, 2017, the Court referred this matter to Magistrate Judge Ellis for a Report and Recommendation
on Plaintiff’s motion to remand. Dkt. No. 21. On February 23, 2017, Local 917 filed its opposition
to Plaintiff’s motion to remand and a cross-motion for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure, asserting collateral estoppel. Dkt. No. 27. On

February 24, 2017, the Court referred the matter to Magistrate Judge Ellis for a Report and
Recommendation on Local 917’s cross-motion for judgment on the pleadings. Dkt. No. 36. On
March 3, 2017, Quick Park filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, for failure to state a claim upon which relief may be granted. Dkt. No. 37. On
April 7, 2017, Plaintiff responded to Quick Park’s motion to dismiss. Dkt. No. 43. Plaintiff did not
respond to Local 917’s cross-motion for judgment on the pleadings.
Judge Ellis issued his Report and Recommendation (“R&R”) on September 11, 2017,
recommending that Plaintiff’s motion for remand be denied and that Local 917’s cross-motion for
judgment on the pleadings and Quick Park’s motion to dismiss with prejudice be granted. R&R at
16, Dkt. No. 48. The R&R advised that “the Parties shall have fourteen (14) days after being served
with a copy” of the R&R “to file written objections.” R&R at 16. No party has lodged objections
to the R&R, and the time to do so has expired.
In reviewing an R&R, 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). A district
court 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); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If
no timely objections are made, however, “a district court need only satisfy itself that there is no clear
error on the face of the record.” King v. Greiner, No. 02 Civ. 5810, 2009 WL 2001439, at *4
(S.D.N.Y. July 8, 2009) (citation omitted); see also Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169
(S.D.N.Y. 2003).
After reviewing the record, the Court finds no clear error in Judge Ellis’ well-reasoned and
careful R&R. Accordingly, the Court adopts the R&R in its entirety, and, for the reasons set forth
therein, denies Plaintiff’s motion for remand and grants Local 917’s cross-motion for judgment on
the pleadings and Quick Park’s motion to dismiss with prejudice.
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The Clerk of Court is directed to mail a copy of this order to Plaintiff by certified mail, to
terminate the motion pending at Dkt. No. 37, and to close this case.
SO ORDERED.
Dated: September 29, 2017
New York, New York

__________________________________
GREGORY H. WOODS
United States District Judge

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