Hogan v. Fischer et al

Filing 81

MEMORANDUM AND ORDER re 75 Order on Motion to Compel, Order on Motion for Reconsideration, Order on Motion for Sanctions, Order on Motion for Extension of Time to Amend,,,,,,,,,, 80 Memorandum in Opposition filed by John Hogan. Plaintiff's objections are denied and Judge Feldman's decision is final. Signed by Hon. Charles J. Siragusa on 11/15/10. (KAP)

Hogan v. Fischer et al

Doc. 81

UNITED STATES DISTRICT COURT W E STE R N DISTRICT OF NEW YORK

JO H N HOGAN, P la in tif f, - vs B R IA N FISCHER, et al., D e f e n d an ts. ME MO RA NDUM & ORDER 0 9 - C V - 6 2 2 5 -C J S - J W F

Sirag u sa, J. Plaintiff moves pursuant to Federal Rule of Civil Procedure 60(b) and "§ 2854 [sic] of the Federal Rules of Civil Procedure" for reversal of an Order (Docket No. 75) entered by the Honorable Jonathan W. Feldman, U.S. Magistrate Judge, on September 16, 2010, which: (1) denied Plaintiff's motions for sanctions (Docket Nos. 14 & 44); (2) denied his m otio n to compel (Docket No. 19), without prejudice to renew; (3) granted, in part, and denied, in part, his motion to compel (Docket No. 54); (4) denied his motion for reconsideration (Docket N o. 28); and (5) granted his motions for extensions of time (Docket Nos. 52 & 53). Plaintiff contends that Judge Feldman erred in deciding his motions for sanctions (Docket Nos. 16 & 44), and his motion to compel discovery (Docket Nos. 19 & 54), and seeks an Order, "allowing D e f e n dants to provide the Personnel Files of Defendant's [sic] 30 days after this Court[']s decis io n on Defendant's Motion to Dismiss...." (Notice of Motion, Docket No. 78, at 2.) Judge Feldman filed his decision on Thursday, September 16, 2010, and a copy of the sam e was mailed to Plaintiff at Attica Correctional Facility in Attica, New York, on the same day. S in ce this case is with Judge Feldman pursuant to 28 U.S.C. § 636, the Court "may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's [m a g is tra te judge's] order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A)

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(2009). Plaintiff's Notice of Motion, which the Court construes as an objection to Judge F eld m an's decision, was timely filed. Local Rule 72.3(a)(2). reads in pertinent part as follows, All orders of the Magistrate Judge issued pursuant to these rules, as authorized by 28 U.S.C. § 636(b)(1)(A), shall be final unless within ten days after being served with a copy of the Magistrate Judge's order, a party files with the Clerk and serves upon opposing counsel a written statement specif yin g the party's objections to the Magistrate Judge's order. The specific m atters to which the party objects and the manner in which it is claimed that the order is clearly erroneous or contrary to law shall be clearly set out. W .D.N.Y. Loc. R. Civ. P. 72.3(a)(2) (2003). Plaintiff's motion (Docket No. 78) was filed on Wednesday, October 13, 2010, and was sent to the Court in an envelope postmarked on Friday, October 8, 2010. (Docket No. 78 at 11.) H is certificate of service, however, indicates that he mailed his objections on Monday, October 4, 2010. (Docket No. 78 at 10.) Assuming Plaintiff received Judge Feldman's decision on M onday, Friday, Saturday, September 18, 2010, he was required to file his objections by W ednesday, September 29, 2010. Fed. R. Civ. P. 6(a)(1). Construing the filing date as M onday, October 4, 2010, Plaintiff's objections were filed five days after the due date. Further, P la in tif f has not requested an extension of time. Fed. R. Civ. P. 6(b). Nor has Plaintiff shown excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Accordin gly, pursuant to Loc. R. 72.3(a)(2), Plaintiff's objections are denied and Judge F eld m an's decision (Docket No. 75) is final.

IT IS SO ORDERED. D a te d : Novem ber 15, 2010 Rochester, New York ENTER: /s/ Charles J. Siragusa CHARLES J. SIRAGUSA U nited States District Judge -2-