Moshenko v. State University of New York (at Buffalo) et al

Filing 74

ORDER denying 51 Motion to Dismiss for Lack of Prosecution; adopting Report and Recommendation re 55 ; granting in part and denying in part 60 Motion to Dismiss; adopting Report and Recommendations re 66 . Case is referred back to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 2/17/2010. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

M O N IC A S. W H A R T O N a/k/a MONICA S. MOSHENKO, P la in tiff, D E C IS IO N AND ORDER 0 7 -C V -1 1 6 A v.

STATE UNIVERSITY OF NEW YORK AT BUFFALO, D e fe n d a n t.

T h is case was referred to Magistrate Judge Jeremiah J. McCarthy, p u rs u a n t to 28 U.S.C. § 636(b)(1). On February 17, 2009, defendant filed a m o tio n to dismiss for lack of prosecution. On July 24, 2009, Magistrate Judge M c C a rth y issued a Report and Recommendation (Dkt. No. 55) pertaining to this m o tio n . Following a motion for reconsideration of that Report and R e c o m m e n d a tio n , defendant filed a motion to dismiss for lack of subject-matter ju ris d ic tio n (Dkt. No. 60) on August 14, 2009. On September 16, 2009, M a g is tra te Judge McCarthy issued a Report and Recommendation (Dkt. No. 66) re g a rd in g the second motion to dismiss. Plaintiff did not file responses to either m o tio n or to either Report and Recommendation. O n September 29, 2009, the Court received a letter from plaintiff (Dkt. No. 6 9 ) requesting time to find another attorney. Plaintiff's letter prompted the Court

to issue an order (Dkt. No. 70) holding the Reports and Recommendations in a b e ya n c e until a status conference on December 11, 2009. Plaintiff was to a p p e a r at that status conference and to introduce new counsel or to be prepared to proceed pro se. On December 10, 2009, the Court received another letter fro m plaintiff (Dkt. No. 71) requesting more time to find an attorney. In response, th e Court issued an order (Dkt. No. 72) holding the Reports and R e c o m m e n d a tio n s in abeyance until a status conference scheduled for February 1 1 , 2010. In this order, plaintiff was warned explicitly that no further extensions w o u ld be granted and that plaintiff had to be ready to proceed on her own if she d id not have a new attorney by the status conference. In s te a d of appearing at the status conference scheduled for February 11, 2 0 1 0 , plaintiff sent the Court another letter (Dkt. No. 73) again requesting an e xte n s io n of time to find another attorney. By now, nearly five months have p a s s e d since the filing of Magistrate Judge McCarthy's second Report and R e c o m m e n d a tio n . The Court understands if plaintiff is looking for an attorney a n d is having trouble finding one. In issuing this Order, the Court accepts all of p la in tiff's representations about her personal situation at face value. Nonetheless, this Court presides over numerous cases involving pro se litigants, a n d cannot suspend them indefinitely because litigants would prefer to have an a tto rn e y and cannot find one. At this point, this case must resume moving fo rw a rd . 2

Pursuant 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 Reports and Recommendations to which o b je c tio n s have been made. Here, even though plaintiff never submitted re s p o n s e s to the pending Reports and Recommendations--which was why the C o u rt held the case in abeyance for five months--it has conducted a de novo re vie w anyway, in an abundance of caution and out of fairness to plaintiff. Upon a de novo review of the pending Reports and Recommendations, the Court a d o p ts the first one (Dkt. No. 55) to the extent not superseded by the second one, a n d adopts the second one (Dkt. No. 66) in its entirety. A c c o rd in g ly, and for the reasons set forth in Magistrate Judge McCarthy's R e p o rts and Recommendations, defendant's first motion to dismiss (Dkt. No. 51k k o k a y) is denied; and defendant's second motion to dismiss (Dkt. No. 60) is g ra n te d to the extent that plaintiff's ADA Title I and V claims, HRL claims, and S e c tio n 1981 claims are dismissed, but otherwise denied. A d d itio n a lly , the Clerk of the Court is directed to amend the caption to read a s it appears above. T h is case is referred back to Magistrate Judge McCarthy for further p r o c e e d in g s .

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SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: February 17, 2010

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