Pynn v. Pynn et al

Filing 108

DECISION AND ORDER adopting 107 Report and Recommendations re 76 and 83 ; granting in part and denying in part the Niagara County defendants' 76 motion for summary judgment; and denying the plaintiff's 83 motion for partial summary judgment. The case is dismissed for lack of subject matter jurisdiction. The clerk of the court shall close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 2/7/2019. (LCH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

STACEY PYNN,
Plaintiff,
v.

16-CV-548
DECISION AND ORDER

MATTHEW P. PYNN,
BURT MARSHALL,
CAROL HENDERSON,
BIANCA GATTO, and
NIAGARA COUNTY,
Defendants.

On July 5, 2016, the plaintiff commenced this action seeking various relief in
connection with the custody of her children and related proceedings in New York State
Supreme Court for Niagara County. Docket Item 1. On October 28, 2016, this Court
first referred this case to United States Magistrate Judge Jeremiah J. McCarthy for all
proceedings under 28 U.S.C. § 636(b)(1)(A). Docket Item 29. Later, on August 6,
2018, this Court referred the case to Judge McCarthy for all proceedings under 28
U.S.C. § 636 (b)(1)(A) and (B). Docket Item 73.
On August 15, 2018, defendants Niagara County, Burt Marshall, Carol
Henderson, and Bianca Gatto (“Niagara County defendants”) moved for summary
judgment, Docket Item 76; on October 31, 2018, the plaintiff responded, Docket
Item 99; and on November 14, 2018, the Niagara County defendants replied, Docket

Item 103. On August 16, 2018, the plaintiff cross-moved for partial summary judgment
against the Niagara County defendants, Docket Item 83; on October 31, 2018, the
Niagara County defendants responded, Docket Item 98; and on November 14, 2018,
the plaintiff replied, Docket Item 102. On January 4, 2019, Judge McCarthy issued a
Report and Recommendation ("R&R") finding that the plaintiff's motion should be denied
without prejudice to renewal in state court, and that the Niagara County defendants’
motion should be granted in part and denied in part. Docket Item 106. 1 The parties did
not object to the R&R, and the time to do so now has expired. See 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A district court
must conduct a de novo review of those portions of a magistrate judge’s
recommendation to which a party objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b)(3). But neither 28 U.S.C. § 636 nor Federal Rule of Civil Procedure 72
requires a district court to review the recommendation of a magistrate judge to which no
objections are raised. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge McCarthy's R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts
Judge McCarthy's recommendation to deny the plaintiff's motion without prejudice to
renewal in state court. The Court also accepts and adopts his recommendation to

1

Judge McCarthy issued a redacted version of his Report and Recommendation
on January 14, 2019. Docket Item 107.
2

dismiss the plaintiff’s claims against all defendants (including Matthew Pynn) for lack of
jurisdiction without reaching the merits of her claims.
For the reasons stated above and in the R&R, the plaintiff's motion for partial
summary judgment, Docket Item 83, is DENIED; the Niagara County defendants’
motion for summary judgment, Docket Item 76, is GRANTED in part and DENIED in
part; the complaint, Docket Item 1, is dismissed for lack of subject matter jurisdiction;
and the Clerk of the Court shall close the file.
SO ORDERED.
Dated:

February 7, 2019
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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