Cole- Hatchard v. Hoehmann et al

Filing 91

MEMORANDUM OPINION AND ORDER: Having found no error, clear or otherwise, in the magistrate judges ruling on the motion for leave to amend, the Court OVERRULES defendants objections to the Decision and Order. (Signed by Judge Vincent L. Briccetti on 10/12/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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STEPHEN COLE-HATCHARD,
:
Plaintiff,
:
:
v.
:
:
GEORGE HOEHMANN, as Supervisor for the
:
Town of Clarkstown, New York, and in his
:
individual capacity; FRANK BORELLI, as
:
Councilman and Deputy Supervisor for the
:
Town of Clarkstown, New York, and in his
:
:
individual capacity; STEPHANIE HAUSNER,
as Councilwoman for the Town of Clarkstown,
:
New York, and in her individual capacity; JOHN :
:
J. NOTO, as Councilman for the Town of
:
Clarkstown, New York, and in his individual
:
capacity; ADRIENNE D. CAREY, as
Councilwoman for the Town of Clarkstown,
:
New York, and in her individual capacity;
:
TOWN OF CLARKSTOWN, NEW YORK; and :
TOWN BOARD OF THE TOWN OF
:
CLARKSTOWN, NEW YORK,
:
Defendants.
:
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MEMORANDUM OPINION
AND ORDER
16 CV 5900 (VB)

Briccetti, J.:
Before the Court are defendants’ timely objections 1 to Magistrate Judge Paul E.
Davison’s Decision and Order (“D&O”), dated September 10, 2018 (Doc. #80), on defendants’
motion for leave to file an amended answer to assert a counterclaim under the so-called faithless
servant doctrine. (Doc. #67). Judge Davison denied the motion.
For the following reasons, the Court overrules defendants’ objections in their entirety.
I.

Standard of Review
A district judge must set aside a magistrate judge’s ruling on a non-dispositive motion if

the ruling “is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); accord, 28 U.S.C. §
1

Defendants’ misdescribe their objections as an “appeal” under Fed. R. Civ. P. 72 and 28
U.S.C. § 636.
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636(b)(1)(A); Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). The “clearly
erroneous or contrary to law” test “is a highly deferential standard, and the objector thus carries a
heavy burden.” Khaldei v. Kaspiev, 961 F. Supp. 2d 572, 575 (S.D.N.Y. 2013).
Alternatively, when a party submits timely objections to a report and recommendation on
a dispositive motion, the district court reviews the parts of the report and recommendation to
which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); accord,
Fed. R. Civ. P. 72(b)(3). The district court may adopt those portions of the recommended ruling
to which no timely objections have been made, provided no clear error is apparent from the face
of the record. See Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clear
error standard also applies when a party makes only conclusory or general objections, or simply
reiterates his original arguments. See Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y.
2008).
II.

Defendants’ Objections
Now before the Court are defendants’ timely objections to the D&O. (Doc. #84).
The Court disagrees with defendants’ contention that de novo review is the correct

standard. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) (motion for leave to
amend is non-dispositive motion, and magistrate judge’s denial of same on ground that proposed
amendment fails to state a claim for relief is reviewed under Rule 72(a)’s clearly erroneous or
contrary to law standard).
Nevertheless, in an abundance of caution, the Court has conducted a de novo review of
the D&O as if it were a report and recommendation on a dispositive motion, and has
independently and thoroughly reviewed the record and the relevant case law.
Having done so, the Court finds no merit in defendants’ objections.

2

Defendants are plainly incorrect that Judge Davison “created a rule that would shield
municipal employees from” the faithless servant doctrine. (Defs. Br. at 9). Instead, Judge
Davison found defendants’ proposed counterclaim to be futile, because defendants’ allegations
are insufficient to state a claim under the faithless servant doctrine.
This Court agrees, and finds the D&O correct in all respects.
In so ruling, the Court does not mean to suggest or intimate that plaintiff’s behavior, if
true, was appropriate or consistent with plaintiff’s professional obligations, or that his alleged
conduct is not relevant to the claims and defenses in this case.
CONCLUSION
Having found no error, clear or otherwise, in the magistrate judge’s ruling on the motion
for leave to amend, the Court OVERRULES defendants’ objections to the Decision and Order.
Dated: October 12, 2018
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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