DiPilato v. 7-Eleven, Inc.

Decision Date25 August 2009
Docket NumberNo. 07-CV-7636 (CS)(GAY).,07-CV-7636 (CS)(GAY).
Citation662 F.Supp.2d 333
PartiesAngela DiPILATO, Plaintiff, v. 7-ELEVEN, INC., Jeanne Lynch, Martin Hagler, and Arthur Rubinett, Defendants.
CourtU.S. District Court — Southern District of New York

Angela DiPilato, Pompano Beach, FL, pro se.

Thomas P. Giuffra, Esq., Barton Barton & Plotkin LLP, New York, NY, Eric A. Welter, Esq., Welter Law Firm, P.C., Herndon, VA, for Defendants.


SEIBEL, District Judge.

Before the Court is the March 19, 2009, 2009 WL 750221, Report and Recommendation of Magistrate Judge George A. Yanthis1 ("R & R"), (Doc. 36), recommending that summary judgment be granted to defendants in part and denied in part.2 On March 25, 2009, Plaintiff filed a document entitled "Plaintiffs Objections to the Report and Recommendation." (Doc. 38). That document, however, objected only to an Order of Judge Yanthis, also dated March 19, 2009 (the "Order"), (Doc. 37), denying Plaintiffs application— made verbally, (see Doc. 23), and in her opposition to Defendants' Motion, (see Doc. 23)—to file an amended complaint.

The R & R

A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific," "written," and submitted "[w]ithin 10 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). A district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1)(C); see Fed. R.Civ.P. 72(b)(3) ("The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F.Supp.2d 804, 811 (S.D.N.Y.2008); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985); Fed.R.Civ.P. 72 advisory committee's note (b). In addition, "[t]o the extent ... that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043, at *1, 2008 U.S. Dist. LEXIS 92267, at *2 (S.D.N.Y. Oct. 31, 2008)3; see Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition." (internal quotation marks omitted)). A decision is "clearly erroneous" when the Court is, "upon review of the entire record, [ ] left with the definite and firm conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir.2006).

The objections of parties appearing pro se are "generally accorded leniency" and should be construed "to raise the strongest arguments that they suggest." Milano v. Astrue, 05-CV-6527, 2008 WL 4410131, at *24, 2008 U.S. Dist. LEXIS 74488, at *3-4 (S.D.N.Y. Sept. 26, 2008) (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1, 2008 U.S. Dist. LEXIS 55034, at *2-3 (S.D.N.Y. July 21, 2008) (internal quotations marks omitted); accord Evans v. Ericole, No. 06-CV-3684, 2008 WL 4861783, at *1, 2008 U.S. Dist. LEXIS 91556, at *2-3 (S.D.N.Y. Nov. 10, 2008) (reviewing report and recommendation for clear error where pro se plaintiff made only general objection); Harden v. LaClaire, No. 07-CV-4592, 2008 WL 4735231, at *1, 2008 U.S. Dist. LEXIS 86582, at *1 (S.D.N.Y. Oct. 27, 2008) (same). An objection to a report and recommendation in its entirety does not constitute a specific written objection within the meaning of Rule 72(b). See Healing Power, Inc. v. Ace Cont'l Exps., Ltd., No. 07-CV-4175, 2008 WL 4693246, at *1, 2008 U.S. Dist. LEXIS 83021, at *2-3 (E.D.N.Y. Oct. 17, 2008) (finding general objection to report and recommendation not specific enough to constitute Rule 72(b) objection); Hazen v. Perlman, No. 05-CV-1262, 2008 WL 4186329, at *10, 2008 U.S. Dist. LEXIS 73708, at *2 (N.D.N.Y Sept. 9, 2008) (reviewing report and recommendation for clear error where pro se plaintiff did not specifically object to any particular portion of report).

Here Plaintiff has objected only "to the following portions of the report and recommendation: (1) that Plaintiff should have been allowed to amend the complaint to include" four of the sixteen causes of action as to which Judge Yanthis denied leave to amend. (Objections at 1.)4 Those "portions," however, are not part of the R & R, but rather are part of the separate Order issued the same date. There having been no objection to the R & R, I review it for clear error. I discern from the face of the record no clear error in R & R's recommendations, which appear to be justified in light of the controlling law, and accordingly adopt the R & R as the decision of this Court.

The Order

The standard of review for a magistrate judge's order depends on whether the order is dispositive. See 28 U.S.C. § 636; Fed.R.Civ.P. 72. When reviewing a dispositive order, "a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see Fed.R.Civ.P. 72(b). When reviewing a pretrial order regarding non-dispositive issues, a district court judge may only reconsider the order "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see Fed.R.Civ.P. 72(a).

While some District Courts within the Second Circuit have suggested that a motion for leave to amend may be dispositive when denied, see Schiller v. City of New York, No. 04-CV-7922, 2009 WL 497580, at *2, 2009 U.S. Dist. LEXIS 15551, at *8-9 (S.D.N.Y. Feb. 27, 2009), the weight of authority appears to be that such motions are non-dispositive regardless of the outcome. See Wilson v. City of New York, No. 06-CV-229, 2008 WL 1909212, at *3-4, 2008 U.S. Dist. LEXIS 35461, at *9-11 (E.D.N.Y. April 30, 2008) (collecting cases); Narine v. Dave West Indian Products Corp., No. 07-CV-657, 2007 WL 3353484, at *1 n. 1, 2007 U.S. Dist. LEXIS 82866, at *1-2 n. 1 (E.D.N.Y. Nov. 7, 2007) (same). Indeed, the Court of Appeals has more than once described a motion to amend the complaint as non-dispositive. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007); Kilcullen v. New York State Dep't of Transp., 55 Fed.Appx. 583, 584 (2d Cir.2003). Accordingly, I review for clear error Judge Yanthis' denial of Plaintiff's motion to amend.

Plaintiff argues that Judge Yanthis overlooked the fact that Defendants represented themselves to be an "equal opportunity employer." (Objections at 2.)5 There is no indication that Judge Yanthis overlooked that allegation or any other allegation made by Plaintiff, nor does it appear that Defendant having held itself out as such would render erroneous Judge Yanthis' conclusion that Plaintiff had not made out the elements of her proposed claims under New York State General Business Law §§ 683(11), 687, 349 or for common law fraud. Having reviewed the elements of those causes of action, I concur with Judge Yanthis that Plaintiffs allegations—which amount to alleged discrimination on the basis of age, gender and marital status in the awarding of a franchise, not fraud in the terms of a franchise contract or relationship—are insufficient.6


On the basis of the foregoing, summary judgment is GRANTED to all Defendants on all claims, except that summary judgment is DENIED as to: 1) the claim against Defendants 7-Eleven and Lynch under New York State Human Rights Law § 296(5)(b); and 2) the claim against all Defendants under New York Civil Rights Law § 40-c. The Order denying leave to amend is AFFIRMED. The Clerk is respectfully directed to terminate the pending motion. (Doc. 13.)



GEORGE A. YANTHIS, United States Magistrate Judge.

TO THE HONORABLE CATHY SEIBEL, United States District Judge:

Angela DiPilato, appearing pro se, brings this action under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17); Conspiracy to Interfere with Civil Rights (42 U.S.C. § 1985(3)); the Age Discrimination in Employment Act (29 U.S.C. §§ 621-34); the United States and New York State Constitutions; New York's Human Rights Law (N.Y. Exec. Law §§ 290-300); and New York Civil Rights Law § 40-c.1 Plaintiff DiPilato asserts these claims against defendants 7-Eleven, Lynch, Hagler, and Rubinett for allegedly denying her application to become a 7-Eleven franchisee based on discriminatory reasons. Presently before this Court are defendants' motion to dismiss all of plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"), on the grounds that plaintiff failed to state claims for which relief can be granted.2 For the reasons that follow, the Court converts defendants' motion to dismiss to a motion for summary...

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