Gierlinger et al v. Town of Brant, NY et al

Filing 28

ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 24 in its entirety. The matter is referred back to Magistrate Judge McCarthy for further proceedings. SO ORDERED. Signed by Hon. Richard J. Arcara on 1/21/15. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID and CHRISTINE GIERLINGER,
Plaintiffs,
v.

DECISION AND ORDER
13-CV–370

TOWN OF BRANT, et al.,
Defendants.

The instant matter was referred to Magistrate Judge Jeremiah J. McCarthy
pursuant to 42 U.S.C. §636(b)(1) for supervision of all pre-trial proceedings.
Plaintiffs sued the Town of Brandt and several Town officials pursuant to Sections
1983 and 1985 of Title 42 of the United States Code. Defendants moved to
dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure. (Dkt. No. 9) Plaintiffs then cross-moved to amend the
complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. (Dkt. No.
19) Magistrate Judge McCarthy issued a Report and Recommendation
recommending that defendants’ motion be granted and that plaintiffs’ crossmotion to amend be granted in part and denied in part. (Dkt. No. 24)
Plaintiffs filed objections to Magistrate Judge McCarthy’s Report and
Recommendation. (Dkt. No. 25) Defendants filed a response on October 23,
2014, (Dkt. No. 27), at which time the Court considered the matter submitted.

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 de novo review, and after reviewing the
submissions from the parties, the Court hereby adopts Magistrate Judge
McCarthy’s findings in their entirety.
Accordingly, for the reasons set forth in Magistrate Judge McCarthy’s
Report and Recommendation, defendants’ motion to dismiss the complaint is
granted, and plaintiffs’ cross-motion for leave to amend the complaint is granted
to the extent the first cause of action alleges a Section 1983 claim for malicious
prosecution, in violation of the Fourth Amendment, and the fourth cause of action
alleges a state law malicious prosecution claim, but otherwise is denied.
The matter is referred back to Magistrate Judge McCarthy for further
proceedings.

SO ORDERED.
____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: January 21, 2015

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