Rechberger et al v. Hurlburt et al

Filing 88

ORDER granting 62 Motion for Summary Judgment; denying 63 Motion for Sanctions; adopting in part Report and Recommendation re 85 . Clerk of Court to remand case to New York State Supreme Court Wyoming County and close case. Signed by Hon. Richard J. Arcara on 3/1/2010. (JMB)

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UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK E D W A R D H. RECHBERGER, IV, as Trustee under a Trust Agreement dated March 11, 1998, and as Amended February 26, 2001, L E W IS J. SERVENTI, and K A R E N K. RECHBERGER, Plaintiffs, v. D U S T IN C. HURLBURT, L IS A HURLBURT, H U R L B U R T INVESTMENT CLUB, and R O B E R T M. BURT, D e fe n d a n ts . D E C IS IO N AND ORDER 0 7 -C V -6 1 A T h is case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 2 8 U.S.C. 636(b)(1). On October 30, 2008, defendant Robert M. Burt filed a m o tio n for judgment on the pleadings or, in the alternative, for summary ju d g m e n t. On November 10, 2008, defendant Burt filed a motion for Rule 11 s a n c tio n s against plaintiffs. On January 12, 2010, Magistrate Judge Foschio filed a Report and Recommendation recommending that the motion for judgment on th e pleadings be granted insofar as the complaint fails to state a civil RICO claim a g a in s t any defendant.1 The Report and Recommendation recommended further th a t the Court decline to exercise supplemental jurisdiction over what would be Magistrate Judge Foschio also recommended an alternative analysis of th e state law claims if this Court disagreed with the recommendation to dismiss th e civil RICO claims. 1 the remaining state law claims and remand the case to state court. Finally, the R e p o rt and Recommendation recommended that the motion for sanctions be d e n ie d . D e fe n d a n t Burt was the only named party to file any objections to the R e p o rt and Recommendation. Burt filed his objections on January 26, 2010. W h ile Burt objected to Magistrate Judge Foschio's analysis regarding s u p p le m e n ta l jurisdiction, his principal objection concerned the recommendation to dismiss plaintiffs' civil RICO claim against a different defendant, Dustin C. H u rlb u rt. Plaintiffs filed a response to Burt's objections on February 18, 2010. The Court held oral argument on February 26, 2010. P u rs u a n t to 28 U.S.C. 636(b)(1), this Court must make a de novo d e te rm in a tio n of those portions of the Report and Recommendation to which o b je c tio n s have been made.2 Upon a de novo review of the Report and R e c o m m e n d a tio n , and after reviewing the submissions and considering the p o in ts raised at oral argument, the Court adopts the primary proposed findings of th e Report and Recommendation. That is, because the Court agrees with M a g is tra te Judge Foschio that the civil RICO claims should be dismissed, that the c a s e should be remanded, and that the motion for sanctions should be denied, th e Court adopts all parts of the Report and Recommendation except Part 3(B) of Although the Court is skeptical that Burt has standing to file objections to a n y part of the Report and Recommendation not concerning claims against him, it h a s conducted a de novo review of all objections in an abundance of caution. 2 2 the Discussion section. For purposes of estoppel or law of the case, that part of th e Report and Recommendation shall have no effect on any subsequent p ro c e e d in g s in state court. A c c o rd in g ly, for the reasons set forth in Magistrate Judge Foschio's R e p o rt and Recommendation, plaintiffs' civil RICO claims against all defendants a re dismissed for lack of subject matter jurisdiction. The Court hereby declines to e xe rc is e supplemental jurisdiction over the remaining state law claims. The Clerk o f the Court is directed to take the steps necessary to remand this case to New Y o rk State Supreme Court, W yo m in g County. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: March 1, 2010 3

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