O'Rourke v. Baystate Financial Services et al
Filing
30
ORDER granting 27 Motion for Judgment on the Pleadings; granting 10 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 19 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 2/20/2014. (Urizandi, Nisshy)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
BAYSTATE FINANCIAL SERVICES;
)
DAVID WEINBERG; ROBERT REBUSSINI; )
and KEVIN McGRADY,
)
)
Defendants.
)
___________________________________)
DONNA L. O’ROURKE,
C.A. No. 12-559 S
ORDER
WILLIAM E. SMITH, Chief Judge.
This
Plaintiff
matter
Donna
is
L.
before
the
on
two
(“Plaintiff”
O’Rourke
Court
or
motions.
First,
“O’Rourke”)
has
filed an objection (ECF No. 21) to the Report and Recommendation
(“R&R”) of Magistrate Judge Lincoln D. Almond (ECF No. 19).
The
R&R recommended dismissal of O’Rourke’s claim against Defendant
Baystate
Financial
Services
(“Baystate”).
Second,
Defendants
David Weinberg, Robert Rebussini and Kevin McGrady (collectively
the
“Individual
Defendants”)
have
moved
for
judgment
on
the
pleadings with respect to O’Rourke’s claims against them (ECF
No.
27).
For
the
reasons
set
forth
below,
Plaintiff’s
objections to the R&R are OVERRULED, the R&R is ADOPTED, and the
motion for judgment on the pleadings is GRANTED.
This
novo.
of
Court
reviews
Plaintiff’s
See Fed. R. Civ. P. 72(b)(3).
her
claims,
deficiencies
Magistrate
in
Judge
O’Rourke’s
objection
to
the
R&R
de
In recommending dismissal
Almond
found
Complaint
a
litany
against
of
Baystate.
O’Rourke’s objection focuses on only one of these failings –
whether she filed her lawsuit within 90 days of receiving a
right
to
sue
Commission.
letter
from
the
Equal
Employment
Opportunity
Even if the Court were to accept (which it does
not) the argument made by O’Rourke in her objection, and find
that
she
did
in
fact
file
her
lawsuit
within
90
days
of
receiving a right to sue letter, several independent reasons
remain for dismissing Plaintiff’s claims against Baystate.
For
instance, Plaintiff failed to serve Baystate with process in the
time required under Rule 4(m) of the Federal Rules of Civil
Procedure and completely failed to respond to Baystate’s motion
to dismiss.
Because this Court agrees with the analysis and the
recommendation
set
forth
in
the
R&R,
it
hereby
adopts
it
pursuant to 28 U.S.C. § 636(b)(1).
A motion for judgment on the pleadings may be granted where
“it appears beyond doubt that the plaintiff can prove no set of
facts
in
relief.”
1988).
does
not
support
of
his
claim
which
would
entitle
him
to
Rivera–Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.
O’Rourke brought this lawsuit under Title VII, which
permit
individual
liability.
2
See
Fantini
v.
Salem
State Coll., 557 F.3d 22, 28 (1st Cir. 2009).
liability
is
precisely
what
O’Rourke
Yet, individual
seeks.
Therefore,
O’Rourke’s claims against the Individual Defendants are barred
as a matter of law. 1
For the foregoing reasons, Plaintiff’s objections to the
R&R
are
OVERRULED,
and
the
R&R
is
ADOPTED.
The
Individual
Defendants’ motion for judgment on the pleadings is GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: February 20, 2014
1
O’Rourke also failed to properly serve the Individual
Defendants with process within the requisite time period
provided under Fed. R. Civ. P. 4(m).
3
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