BUFFALO BIODIESEL, INC. v. Schneiderman
ORDER ADOPTING 15 REPORT AND RECOMMENDATION, the plaintiff's motions to change venue 9 and for leave to file a second amended complaint 10 are DENIED; the defendant's motion to dismiss for lack of subject matter jurisdiction 4 is GRANTED; the amended complaint 2 is DISMISSED, and the Clerk of the Court is instructed to close the file. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 9/27/2017. (CMD)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BUFFALO BIODIESEL, INC.,
ERIC T. SCHNEIDERMAN in his
official capacity as the Attorney General
for the State of New York,
On February 18, 2017, the plaintiff, Buffalo Biodiesel, Inc., commenced this
action, and on May 15, 2017, the plaintiff filed an amended complaint. Docket Items 1
and 2. On June 5, 2017, the defendant, Eric T. Schneiderman in his official capacity as
the Attorney General for the State of New York, moved to dismiss for failure to state a
claim and for lack of subject matter jurisdiction. Docket Item 4. On August 7, 2017,
Buffalo Biodiesel filed its opposition to the motion to dismiss, Docket Item 11, and
brought two motions of its own: (1) for leave to file a second amended complaint,
Docket Item 10, and (2) to change venue from this Court to the New York Court of
Claims, Docket Item 9. On August 16, 2017, Schneiderman responded to Buffalo
Biodiesel's motions and replied to the plaintiff's response to his motion. Docket Item 14.
Buffalo Biodiesel did not reply to Schneiderman's response to its motions.
On June 12, 2017, this Court referred this case to United States Magistrate
Judge Hugh B. Scott for all proceedings pursuant to 28 U.S.C. Sections 636(b)(1)(A)
and (B). Docket Item 5. And on September 5, 2017, Judge Scott issued a Report and
Recommendation finding that the defendant’s motion to dismiss should be granted and
that the plaintiff’s motions should be denied. Docket Item 15. 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 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 an objection is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(3). But neither 28 U.S.C. Section 636 nor Federal Rule of Civil Procedure 72
require 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 objections, the Court
accepts and adopts Judge Scott's recommendation to deny the plaintiff’s motions and
grant the defendant’s motion to dismiss.
It seems almost too obvious to say, but 28 U.S.C. Section 1332 (Diversity of
Citizenship) does not give the federal courts jurisdiction over a suit for defamation
brought by a plaintiff corporation that is "incorporated in the state of New York" with "its
principal place of business in Erie County [New York]" against a New York defendant—
here, the Attorney General of the State of New York. The suggestion otherwise in both
the amended complaint and the proposed second amended complaint evidences a
fundamental misunderstanding of this Court's limited jurisdiction. And slapping the
words "due process" on the defamation claims in the proposed second amended
complaint does not change anything. This Court simply does not have the power to
address the plaintiff's claims. Moreover, without subject matter jurisdiction, this Court
also does not have the power to transfer "venue," as the plaintiff requests, to the New
York Court of Claims.
For the reasons stated above and in the Report and Recommendation, the
plaintiff’s motions to change venue (Docket Item 9) and for leave to file a second
amended complaint (Docket Item 10) are DENIED; the defendant’s motion to dismiss
for lack of subject matter jurisdiction (Docket Item 4) is GRANTED; the amended
complaint (Docket Item 2) is dismissed; and the Clerk of the Court is instructed to close
September 27, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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