Torres v. CBS News

• Decision Date: 20 February 1995
• Docket Number: No. 93 Civ. 6474 (KMW).,93 Civ. 6474 (KMW).
• Parties: Peter E. TORRES, d/b/a Visa Lottery, Inc., d/b/a Immigration Law Office of Peter E. Torres, Esquire, Plaintiff, v. CBS NEWS, Roseanne Colletti, Ernie Anastos, Beatrice Gruber, "John Doe," being a fictitious name of a CBS undercover cameraman, Congressman Charles E. Schumer, Elizabeth Aviars, and The City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

879 F. Supp. 309

Peter E. TORRES, d/b/a Visa Lottery, Inc., d/b/a Immigration Law Office of Peter E. Torres, Esquire, Plaintiff, v. CBS NEWS, Roseanne Colletti, Ernie Anastos, Beatrice Gruber, "John Doe," being a fictitious name of a CBS undercover cameraman, Congressman Charles E. Schumer, Elizabeth Aviars, and The City of New York, Defendants.

No. 93 Civ. 6474 (KMW).

United States District Court, S.D. New York.

February 20, 1995.

COPYRIGHT MATERIAL OMITTED

Plaintiff, pro se.

Helen M. Gold, CBS Inc., New York City, for defendants CBS News, Roseanne Colletti, Ernie Anastos and Beatrice Gruber.

Richard P. Stanton, Asst. Counsel, Office of General Counsel, House of Representatives, Washington, DC, for defendant Congressman Charles E. Schumer.

Charles C. Graves, II, Asst. Corp. Counsel, New York City, for defendants City of New York and Elizabeth Aviars.

ORDER

KIMBA M. WOOD, District Judge.

In a Report and Recommendation ("Report") dated August 30, 1994, Magistrate Judge Grubin recommended: (1) that defendant Schumer's motion to dismiss claims one and two of the complaint be granted; (2) that plaintiff's motion for summary judgment on claims one and two be denied; (3) that defendant Schumer's motion for summary judgment on the remaining claims against him be granted; and (4) that the case be remanded to New York State Supreme Court, New York County. In conformity with Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989), the Magistrate Judge's Report explicitly cautioned that failure to file timely objections could constitute a waiver of those objections.

On September 23, 1994, plaintiff submitted a letter to this court, indicating that he had not received the Magistrate Judge's Report until September 16, 1994, and seeking an extension to file his objections until October 7, 1994. Although I denied this request on the ground that it was untimely, plaintiff nonetheless filed objections on October 7, 1994.

Discussion

Rule 72(b) of the Federal Rules of Civil Procedure describes the appropriate procedure for filing written objections to Reports issued by Magistrate Judges regarding dispositive motions. Rule 72(b) provides, in pertinent part:

Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations.

When computing the date by which the parties must file objections, courts are bound by Rule 6 of the Federal Rules of Civil Procedure, which directs that "in computing any period of time prescribed or allowed by these rules ... when the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). Rule 6 also provides for an additional three day period when service is made by mail. Fed.R.Civ.P. 6(e).

Under either of two possible methods of computing the applicable deadline, I find that plaintiff's objections are untimely. The calculation that adheres to the precise language of the Federal Rules of Civil Procedure would give plaintiff thirteen days, excluding weekends and holidays, from the date that the Magistrate Judge mailed the Report to plaintiff. Because the Report indicates a mailing date of August 30, 1994, this method of calculation would require plaintiff to submit his objections by September 19, 1994 — a full thirteen days after the date on which the Report was mailed, excluding weekends and Labor Day. The objections plaintiff filed on October 7, 1994 thus were not timely.

Another possible way to calculate relevant dates is to view plaintiff as being "served" with the Magistrate Judge's Report on the date on which he professes to have received it. However, even assuming arguendo that the Report was received by plaintiff on September 16, and that I would credit any explanation plaintiff might offer as to why a Report mailed to the same address designed on the letterhead of his letter dated September 23, 1994 would take over two weeks to arrive, I would still conclude that plaintiff's objections were untimely. First, I would find that because of plaintiff's admission that he received the Report on September 16, he is not entitled to the additional three day time period designated to account for service made by mail. Thus plaintiff would have ten days from September 16 — excluding weekends and holidays — to file any objections. Under this second, more liberal method of calculation, plaintiff's objections would have been due on September 30, 1994, and thus the objections filed on October 7, 1994 were untimely.

Because I received no timely objections, because I find no clear error on the face of the record, and because the Report is particularly well reasoned, I accept and adopt the Magistrate Judge's recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (failure to file timely objections constitutes waiver of objections, and district court review not required); cf. Small, 892 F.2d 15 (Arn applies even to pro se litigants where Report contains proper cautionary language). Accordingly, I grant defendant Schumer's motion to dismiss counts one and two of plaintiff's complaint, and deny plaintiff's motion for summary judgment on these two counts. I also grant defendant Schumer's motion for summary judgment on the remaining claims against him. I further order that this case be remanded to New York State Supreme Court, New York County.

SO ORDERED.

REPORT AND RECOMMENDATION

GRUBIN, United States Magistrate Judge:

Pending are the motion of defendant Congressman Charles E. Schumer to dismiss this case pursuant to Fed.R.Civ.P. 12 or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56 and the motion of plaintiff for summary judgment on the first two of his four claims against Congressman Schumer. I respectfully recommend that Congressman Schumer's motion be granted and plaintiff's motion denied. I further recommend that this case then be remanded to the New York State Supreme Court from which it was removed by Congressman Schumer.¹

BACKGROUND

Plaintiff, Peter E. Torres, is an attorney who practices immigration law in New York and filed this action in the state court on August 24, 1993 alleging that defendants made false and defamatory statements about a booklet and services that plaintiff offered immigrants in connection with applications to the government's visa lottery program. Of the twelve claims in the complaint, only the first four are against Congressman Schumer and are based on the following undisputed facts.

In May 1992 plaintiff prepared a booklet entitled "Visa Lottery Informational Booklet" intended to aid immigrants applying for visas for permanent United States residency under the upcoming 1993 visa lottery program. Plaintiff sold the booklet for $50 and, in addition, offered to do the application and related work for $150. In soliciting orders, plaintiff used the name "Visa Lottery, Inc.," obtained a Post Office box to receive orders and had available three telephone lines 24 hours a day to provide free information. Believing that many immigrants would contact their Congressional representatives concerning the lottery, plaintiff sent a letter by fax to all Congresspeople in New York and elsewhere regarding his booklet and the other services he offered. Congressman Schumer, the Ranking Member of the Immigration Subcommittee of the Committee on the Judiciary, issued a one-page press release on July 29, 1992 which, in essence, warned illegal aliens to beware of "scam artists" who portrayed themselves as consultants and offered for a fee to complete the lottery application process which, according to the Congressman, was simple enough for anyone to do her or himself. The press release referred specifically to Visa Lottery, Inc. as an example of "one company looking to make a quick buck off of aliens" and said, "In Brooklyn, we have a word for something like that — chutzpah."

The complaint charges in its first two claims that the references to "plaintiff"² as a "scam artist" and "one company looking to make a quick buck off of aliens" and "calling plaintiff: `Chutzpah'" were false and defamatory and that Congressman Schumer, in publishing this matter, failed to take proper steps to ascertain its accuracy, acting in a grossly irresponsible manner and with reckless disregard of the truth. The first claim is for libel and the second alleges a "breach" of "a duty of care" owed to plaintiff. Both allege injury to plaintiff's professional character and reputation, mental anguish and loss of business in the sum of $100 million dollars and also seek punitive damages.

The third claim in the complaint, for slander, and fourth claim, again for "breach" of "a duty of care," are based on allegations all "on information and belief' that "on, about, or after July 29, 1992, defendant Schumer held a press conference with the television and broadcast media regarding the defamatory matter of and concerning plaintiff" and "in the presence of the television and broadcasting media spoke of and concerning the plaintiff false and defamatory words and/or statements mentioned in his press release." These claims seek precisely the same damages for precisely the same injuries as the first two claims.

The additional eight state-law claims against the other defendants — CBS Inc., Ernie Anastos, Roseanne Colletti, Beatrice Gruber, "John Doe" (a CBS cameraman), and the City of New York and Director of the Mayor's Office for Immigrant Affairs, Elizabeth Aivars — are based on allegations that they reported or made false and defamatory statements about plaintiff on a "Trouble Shooter" television program broadcast by CBS stations and affiliates on August 26, 1992. Because the facts alleged in the complaint against these defendants will be relevant to the discussion below, a brief description is necessary.³

According to plaint...