Hopkins et al v. Booth

Filing 24

DECISION AND ORDER ADOPTING REPORT AND RECOMMENDATION 16 . The defendant's motion to dismiss for failure to state a claim 10 is GRANTED in part and DENIED in part, as specified. The defendant's motion to strike as to plaintiffs' ex hibits one through four is GRANTED and DISMISSED as to exhibit five. Defendant's motion to dismiss counts three and four is DISMISSED as moot. Count two in the amended complaint is dismissed, but counts one and three are referred back to Judge Foschio for further proceedings consistent with the referral order of August 21, 2017 13 . SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 1/17/2018. (CMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
COLLEEN HOPKINS,
KATHRYN DISALVO,
DOUGLAS MORRIS, Executor of the
Estate of Margaret Morris,
Plaintiffs,

16-CV-1020
DECISION AND ORDER

v.
JOHN S. BOOTH, III,
Defendant.
___________________________________
On December 21, 2016, the plaintiffs commenced this action. Docket Item 1.
On August 21, 2017, this Court referred this case to United States Magistrate Judge
Leslie G. Foschio for all proceedings under 28 United States Code Section 636(b)(1)(A)
and (B). Docket Item 13.
On August 4, 2017, the defendant moved to dismiss counts two through five for
failure to state a claim, Docket Item 10; on August 8, 2017, the plaintiffs responded,
Docket Item 11, and filed an amended complaint, Docket Item 12; and on August 30,
2017, the defendant replied, Docket Item 15. On November 20, 2017, Judge Foschio
issued a Report and Recommendation finding that the defendant's motion should be
granted in part and denied in part. Docket Item 16. 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). Indeed, on December 4, 2017—the day
objections were due—the defendant answered the amended complaint. Docket
Item 17.

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 objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 United States Code Section 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 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Foschio'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 Foschio's recommendation to grant in part the defendant's
motion.
For the reasons stated above and in the Report and Recommendation, the
defendant's motion to dismiss for failure to state a claim, Docket Item 10, is GRANTED
as to the plaintiffs' negligence per se claim in count two but is DENIED as to the
plaintiffs' claims for punitive damages in count one of the amended complaint; the
defendant's motion to strike is GRANTED as to the plaintiffs' exhibits one through four
and is DISMISSED as moot as to exhibit five; and the defendant's motion to dismiss
counts three and four is DISMISSED as moot. Count two in the amended complaint is
therefore dismissed, but counts one and three are referred back to Judge Foschio for

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further proceedings consistent with the referral order of August 21, 2017, Docket
Item 13.
SO ORDERED.
Dated:

January 18, 2018
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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