Opinion
04 Civ. 9776 (RMB) (HBP).
July 18, 2005
DECISION AND ORDER
I. Background
On or about December 13, 2004, Ronny Simon ("Plaintiff" or "Simon"), appearing pro se, filed a complaint ("Complaint") against Greenpoint Bank, N.A. ("Greenpoint") and the New York City Water Department of Environmental Protection ("DEP"), alleging violations of his rights under the First, Fifth, Ninth, Tenth, and Fourteenth Amendment to the U.S. Constitution, as well as 42 U.S.C. §§ 1983, 1985, 1986, 1988. (Complaint ¶ 20.) Simon alleges, among other things, that Greenpoint: (i) "persuaded New York City Water Department of Environmental Protection to break the agreement with Plaintiff" concerning a water tax lien; (ii) unilaterally altered Plaintiff's monthly mortgage payment without notice; and (iii) "intentionally . . . induced a default of mortgage payment." (Id. ¶ 12, 16, 19.)
Although Plaintiff and Greenpoint reference DEP as the "New York City Water Department of Environmental Protection," it appears from DEP letters attached to the Complaint that the correct name of the agency is the New York City Department of Environmental Protection.
On or about December 15, 2004, the Court scheduled an initial pre-trial conference for February 15, 2005 at 9:30 A.M. and sent notice to Greenpoint. (Letter from the Court, dated December 15, 2004.) Greenpoint provided a copy of the notice to Simon prior to the proposed conference date. (Letter from Joseph Savino to Ronny Simon, dated January 28, 2005.) On or about February 9, 2005, the Court, on its own initiative, adjourned the conference to February 23, 2005 at 3:30 P.M. (Memo Endorsement, dated February 9, 2005.) Greenpoint notified Simon of the adjournment on or about February 11, 2005. (Affidavit of Lisa Rudowsky, dated February 11, 2005 ("Rudowsky Aff.").)
Simon failed to appear on February 23, 2005 at 3:30 P.M., and the Court issued an order of discontinuance, providing "that within thirty (30) days of the date of this Order, Simon may apply by letter showing good cause why this action should be restored to the calendar of the undersigned." (Order, dated February 24, 2005 ("February 24, 2005 Order").) By letter dated March 23, 2005, Simon applied to restore this action ("Pl. Mot."), because: "On February 23, 2005, I did appear for pre-trial conference scheduled, However, I, inadvertently appear at 3:30, P.M., at the wrong Court Room, I was at the Court Room of Hon. Jed S. Rakoff United States District Judge (sic)." (Pl. Mot. at 1 (emphasis omitted).)
On or about March 31, 2005, United States Magistrate Judge Henry B. Pitman, to whom the matter had been referred, issued a Report and Recommendation ("Report"), recommending that Simon's motion to vacate the default be granted and that the matter be restored to the Court's active calendar. (See Report at 1.) Magistrate Judge Pitman further recommended a monetary sanction be imposed against Simon "(1) to compensate defendants for any unnecessary expense they incurred, and (2) to deter plaintiff from similar conduct in the future." (Id. at 5.)
Simon submitted objections ("Pl. Objections") on or about April 19, 2005, to which Greenpoint responded on or about April 22, 2005 ("Def. Resp."). For the reasons set forth below, the Report is adopted in part and modified in part.
II. Standard of Review
The Court may adopt those portions of a magistrate's report to which no objections have been made and which are not facially erroneous. Thomas v. Arn, 474 U.S. 140, 149 (1985); see also Santana v. Kuhlman, 232 F. Supp. 2d 154, 157-58 (S.D.N.Y. 2002). 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. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989); DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994).
Where, as here, the plaintiff is proceeding pro se, "special leniency regarding procedural matters" should be granted. Lesane v. Hall's Security Analyst, Inc. 239 F.3d 206, 209 (2d Cir. 2001).
III. Analysis
The uncontested portions of the Report are supported by the record, are in conformity with the law, and are not clearly erroneous. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
As to the contested portion of the Report, i.e., imposing monetary sanctions, the Court has undertaken a de novo review and concludes as follows:
While it appears that Greenpoint provided Simon with the correct time and place of the pre-trial conference (see Rudowsky Aff.), there is room for reasonable doubt. The Court believes that Plaintiff should have the benefit of the doubt and that monetary sanctions are not warranted. See Report at 4; see also Clissuras v. Teachers' Ret. Sys. of New York, Nos. 02 civ. 8130, 02 Civ. 8138, 2003 WL 1701992, at *5 (S.D.N.Y. March 28, 2003) (declining to impose monetary sanctions against pro se plaintiffs absent "unambiguous warnings").
IV. Conclusion and Order
For the reasons stated herein and therein, the Court adopts the portion of the Report that recommends that Simon's case be restored to the active calendar. The Court declines to impose monetary sanctions against Simon. The Clerk of the Court is respectfully requested to restore this case to the Court's active docket.
A pre-trial conference is set for Friday, July 29, 2005, at 11:00 A.M. in Courtroom 706 (7th floor), 40 Centre Street, Thurgood Marshall U.S. District Courthouse.