Ashby v. Murphy et al

Filing 56

ORDER granting 46 Motion for Judgment on the Pleadings; accepting and adopting Report and Recommendations re 55 Report and Recommendations and the complaint is dismissed with prejudice as to defendants United Frontier and Petronio; that the cas e is referred back to Judge McCarthy for further proceedings; the Court certifies that any appeal would not be taken in good faith and, therefore leave to appeal to the Court of Appeals as a poor person is denied; that Plaintiff must file any notice of appeal with the Clerk's Office within 30 days of the date of judgment in this action and requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit. Signed by Hon. Lawrence J. Vilardo on 1/29/2021. (JLV) Copy mailed to pro se plaintiff.

Case 1:17-cv-01099-LJV-JJM Document 56 Filed 01/29/21 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KEVIN ASHBY,
Plaintiff,
v.

17-CV-01099-LJV-JJM
DECISION & ORDER

JAMES A. MURPHY, III, et al.,
Defendants.

On October 30, 2017, the plaintiff, Kevin Ashby, commenced this action alleging
several claims against multiple defendants under state and federal law. See Docket
Item 1. Among them were claims against the United Frontier Mutual Insurance
Company (“United Frontier”) and its Vice President/Claims Administrator, Jean Petronio,
in connection with Ashby’s submission of a property loss claim under his insurance
policy. Id. at 2, 12. On December 4, 2019, this Court consolidated that action with two
other pending actions. Docket Item 6. And on March 9, 2020, this Court referred the
consolidated action to United States Magistrate Judge Jeremiah J. McCarthy for all
proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 18.
On November 3, 2020, United Frontier and Petronio moved for judgment on the
pleadings. Docket Item 46. Despite a text order setting a briefing schedule, Docket
Item 47, Ashby never responded, see Docket Item 52. Nevertheless, Judge McCarthy
recognized that he still was obligated to analyze and address the sufficiency of the
complaint on the merits and could not “automatically dismiss the complaint” simply
because the plaintiff failed to respond. Docket Item 55 at 1-2.

Case 1:17-cv-01099-LJV-JJM Document 56 Filed 01/29/21 Page 2 of 3

On December 23, 2020, Judge McCarthy issued a Report and Recommendation
(“R&R”) analyzing the issues on the merits and finding that the defendants' motion
should be granted. Id. at 1-5. 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). The court must
review de novo 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 complaint and the defendants’ motion.
Based on that review and the absence of any objections, the Court accepts and adopts
Judge McCarthy's recommendation to grant the motion to dismiss.
For the reasons stated above and in the R&R, the defendants' motion for
judgment on the pleadings, Docket Item 46, is GRANTED, and the complaint, Docket
Item 1, is dismissed with prejudice as to defendants United Frontier and Petronio. The
case is referred back to Judge McCarthy for further proceedings consistent with the
referral order of March 9, 2020, Docket Item 18.

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The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore denies leave to appeal as a poor
person. See Coppedge v. United States, 369 U.S. 438 (1962).
Ashby must file any notice of appeal with the Clerk’s Office, United States District
Court, Western District of New York, within 30 days of the date of judgment in this
action. Requests to proceed on appeal as a poor person must be filed with the United
States Court of Appeals for the Second Circuit in accordance with the requirements of
Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.
Dated:

January 29, 2021
Buffalo, New York

LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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