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)

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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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