Coffey v. Donahoe
-CLERK TO FOLLOW UP-ORDER granting 5 defendant's Motion to Dismiss; denying 9 plaintiff's Motion to Amend or Correct; adopting Report and Recommendation re 16 . Clerk of Court to close case. Signed by Hon. Richard J. Arcara on 6/26/2013. (JMB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PATRICK R. DONAHOE,
This action was referred to Magistrate Judge H. Kenneth Schroeder, Jr.,
pursuant to 28 U.S.C. § 636(b)(1)(B). On February 22, 2013, Magistrate Judge
Schroeder filed a Report and Recommendation which recommends defendant’s
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) be granted because plaintiff’s
complaint is untimely, and that plaintiff’s motion to amend the complaint pursuant to
Fed. R. Civ. P. 15(a)(2) be denied as futile.
Plaintiff filed objections to the Report and Recommendation on March 8,
2013. Defendant filed a memorandum of law in response to defendant’s objections
on March 25, 2013. Plaintiff filed a reply in support of her objections on April 1,
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon a de novo review of the Report and
Recommendation, the Court adopts the proposed findings of the Report and
The Court carefully considered plaintiff’s objections, and specifically
considered whether it should, pursuant to Fed. R. Civ. P. 42(b), conduct a separate
trial of the date the November 10, 2011 right-to-sue letter was delivered to her.
However, plaintiff concedes she has no evidence of the date the right-to-sue letter
was delivered to her. The legal presumptions that the letter was delivered to plaintiff
— even if the Court were inclined to allow an extra day to the presumptive three-day
mailing period because of the intervening Veterans Day holiday on November 11,
2011 — results in the action being barred as untimely because the action was filed
96 days after the letter is presumed to have been mailed on November 10, 2011.
Plaintiff’s counsel’s assertion that “there may be methods to track the mailing [and]
delivery of these documents” lacks plausible evidentiary support and is not likely to
have evidentiary support after even further investigation or discovery. Plaintiff
therefore has an insufficient factual basis to amend her complaint to allege that the
right-to-sue letter was actually delivered to her within 90 days of commencement of
the action on February 14, 2012.
Accordingly, and for the reasons set forth in Magistrate Judge Schroeder’s
Report and Recommendation, defendant’s motion pursuant to Fed. R. Civ. P.
12(b)(6) seeking dismissal of plaintiff’s complaint as untimely filed is granted, and
plaintiff’s motion to amend the complaint pursuant to Fed. R. Civ. P. 15(a)(2) is
The Clerk of Court shall take all steps necessary to close the case.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: June 26, 2013
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