Pierno v. Fidelity Brokerage Services, LLC

Filing 41

ORDER denying as moot 36 Motion ; denying as moot 38 Motion to Set Aside. For the reasons stated in the Report and Recommendation and the Court's order adopting it in full, Pierno's motion is DENIED. Pierno may not avoid this Court's ruling that his claims may proceed only in arbitration by refusing to participate in arbitration proceedings. Pierno's motion for oral argument (Dkt. No. 38) is DENIED as moot. Pierno shall file a letter by October 31, 2020, st ating whether he intends to proceed with his claims in arbitration and, if not, whether this case should be dismissed for failure to prosecute. Fidelity Brokerage Services may file a response by November 14, 2020. The Clerk of Court is respectfully directed to mail a copy of this order to Pierno and to note the mailing on the public docket. This resolves Docket Numbers 36 and 38. SO ORDERED.. (Signed by Judge Alison J. Nathan on 10/5/2020) (ks) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Rinaldo Pierno,
Plaintiff,
18-cv-3384 (AJN)
–v–
ORDER
Fidelity Brokerage Services, LLC,
Defendant.

ALISON J. NATHAN, District Judge:
Pro se plaintiff Rinaldo Pierno has filed a “Notice of Motion to Adjudicate Plaintiff’s
Breech of Contract Regarding FINRA Arbitration.” Dkt. No. 36. Over a year-and-a-half ago,
this Court adopted the Report and Recommendation of Magistrate Judge Stewart Aaron holding
that Pierno’s claims could proceed only in arbitration. See Dkt. Nos. 29, 34. Pierno states in his
motion that “[n]o arbitration ever took place” because he “has refused to take part in the FINRA
arbitration, or pay any fees associated with the arbitration procedure.” Plf. Motion at 2. He
contends that he has therefore materially breached the arbitration agreement and the Court thus
should adjudicate the merits of his claims. Id. at 3–4.
For the reasons stated in the Report and Recommendation and the Court’s order adopting
it in full, Pierno’s motion is DENIED. Pierno may not avoid this Court’s ruling that his claims
may proceed only in arbitration by refusing to participate in arbitration proceedings. Pierno’s
motion for oral argument (Dkt. No. 38) is DENIED as moot. Pierno shall file a letter by October
31, 2020, stating whether he intends to proceed with his claims in arbitration and, if not, whether
this case should be dismissed for failure to prosecute. Fidelity Brokerage Services may file a
response by November 14, 2020. The Clerk of Court is respectfully directed to mail a copy of

this order to Pierno and to note the mailing on the public docket.
This resolves Docket Numbers 36 and 38.

SO ORDERED.

Dated: October 5, 2020
New York, New York

__________________________________
ALISON J. NATHAN
United States District Judge

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