Jordan v Domino's Pizza Inc. et al

Filing 21

DECISION AND ORDER ADOPTING 17 REPORT AND RECOMMENDATION that defendant Atallah's 4 motion to dismiss is granted and his motion for summary judgment is denied as moot; the remaining defendants' motion to dismiss is denied and their moti on for summary judgment is denied without prejudice to renewal upon the completion of discovery and the plaintiff's motion to amend the complaint is denied. The referral of all pretrial matters to Judge Scott remains effective. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 3/21/2017. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________
ASHLEY JORDAN,
Plaintiff,

16-CV-678(LJV)(HBS)
ORDER

v.
DOMINO’S PIZZA, INC., ET AL.,
Defendants.
__________________________________

This matter was commenced in August 2016 when the plaintiff filed her
complaint. See Docket Items 1, 2. On November 7, 2016, the defendants moved to
dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6); in the alternative, the
defendants asked the Court to treat its motion to dismiss as a motion for summary
judgment. See Docket Items 4, 5. On the same day, this Court referred all pretrial
matters to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1)(A) and
(B). Docket Item 6. On November 30, 2016, the plaintiff responded; on December 20,
2016, the defendants replied; and on January 2, 2017, the plaintiff filed a sur-reply
without permission of the Court but with the consent of opposing counsel. See Docket
Items 8, 13, 15, 16.
On January 9, 2017, Judge Scott issued his Report and Recommendation on the
defendants’ dispositive motion. See Docket Item 17. He recommended that the
defendants’ motion to dismiss be denied as to defendants Domino’s Pizza, Inc., and
Domino’s Pizza, LLC, but granted as to defendant Akram Atallah. He also
recommended that the defendants’ motion for summary judgment be denied as to all

defendants and that the defendants’ request to convert the motion to dismiss into a
motion for summary judgment likewise be denied. Finally, he recommended that the
plaintiff’s motion for leave to amend the complaint to add a supplemental claim against
defendant Atallah also be denied.
The parties did not object to the Report and Recommendation, 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, in whole or in part, the findings or
recommendation 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 objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. § 636 nor Fed. R. Civ. P. 72 requires a district court to
review the recommendation of a magistrate judge to which no objections are addressed.
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 Scott’s Report and Recommendation as well as the parties’
submissions to him. Based on that review and the absence of any objections, the Court
accepts and adopts Judge Scott’s recommendation to grant defendant Atallah’s motion
to dismiss and to deny all other motions made by the defendants or the plaintiff.
Individual defendants who exercise supervisory control over an employee, but
who are not the employee’s employer, are not liable under Title VII. See Tomka v.
Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by
Burlington Indus., Inc. v. Ellerth, 524 U.S. 724 (1998). The plaintiff thus failed to state a
viable claim against defendant Atallah. Her request to amend her complaint to allege a

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supplemental state law claim against Atallah therefore also lacks merit: because there is
no federal claim against Atallah, there is nothing to supplement with a proposed state
law claim. What is more, the plaintiff’s motion to amend was procedurally defective
because it did not include a copy of the proposed pleading or a redlined version of the
original complaint showing the proposed changes, see Western District of New York
Local Rules of Civ. Proc. 15(a) and (b), and it is denied for that reason as well.
On the other hand, the complaint on its face stated viable claims against the
corporate defendants who are alleged to have been the plaintiff’s employer. And insofar
as the defendants moved for summary judgment, or asked the Court to treat their
motion to dismiss as a motion for summary judgment, the defendants’ motion was both
procedurally defective and premature. See Docket Item 17 at 18-19 (discussing “the
incomplete nature of this converted motion as a summary judgment motion”).
Therefore, for the reasons stated above and in the Report and Recommendation,
defendant Atallah’s motion to dismiss is granted and his motion for summary judgment
is denied as moot; the remaining defendants’ motion to dismiss is denied and their
motion for summary judgment is denied without prejudice to renewal upon the
completion of discovery; and the plaintiff’s motion to amend the complaint is denied.
The referral of all pretrial matters to Judge Scott remains effective.

SO ORDERED.
Dated: March 21, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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