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denying motions for summary judgment on the grounds they were "premature because the parties have yet to begin discovery in these cases"
Summary of this case from United States v. Catholic Health Sys. of Long IslandOpinion
15-CV-7106 (RRM) (RML) 16-CV-180 (RRM) (RML)
03-15-2017
SKIBOKY SHAVAR STORA, Plaintiff, v. DON'T ASK WHY OUTFITTERS; AMERICAN EAGLE OUTFITTERS, INC.; RETAIL ROYALTY COMPANY; THEODORE R. REMAKLUS; WOOD, HERRON & EVANS, LLP; JAY L. SHOTTENSTEIN; and BRANDY MELVILLE CORPORATION, Defendants. SKIBOKY SHAVAR STORA, Plaintiff, v. GENERAL PANTS CO. PTY; DON'T ASK AMANDA CLOTHING; HOWARD GOLDBERG; CRAIG KING; ROGER H. BORA; and THOMPSON HINE LLP, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff pro se Skiboky Shavar Stora commenced the above-captioned copyright actions on December 11, 2015, (see Compl. in 15-CV-7106 (the "7106 Compl.") (Doc. No. 1)), and January 12, 2016, (see Compl. in 16-CV-180 (the "180 Compl." (Doc. No. 1)). Both of these cases center on Stora's allegation that defendants in each case have infringed upon copyrights of his visual artwork containing the words "Don't Ask." (See 7106 Compl. Exs. A, B; 180 Compl.) Broadly construed, Stora's complaints allege that all of the defendants have engaged in the business of advertising, marketing, and selling clothing lines featuring logos or designs that infringe on his copyrighted artwork.
Numerous motions are pending in these cases, including Stora's motions for a preliminary injunction, for default judgments, to compel discovery, to amend his complaints, and for contempt; as well as defendants' motions for judgment on the pleadings, or, in the alternative, for summary judgment, and to dismiss for lack of jurisdiction. (See generally 15-CV-7106 (Doc. Nos. 17, 20, 32, 37, 39, 53-54, 59, 63, 71-72, 87); 16-CV-180 (Doc. Nos. 22, 28-29, 32, 34-35, 40, 42-43, 45, 52). By orders dated March 10, 2016, this Court referred all motions in these cases to the assigned Magistrate Judge, the Honorable Robert M. Levy, for a Report and Recommendation,
On December 7, 2016, Judge Levy issued a Report and Recommendation, a copy of which was electronically mailed to Stora, recommending that Stora's cases be dismissed and Stora's motions be denied. (See Report & Recommendation 15-CV-7106 (Doc. No. 97); Report & Recommendation 16-CV-180 (Doc. No. 67)) (collectively, the "R&R"). Judge Levy reminded the parties that, pursuant to Rule 72(b), any objections to the R&R must be filed by December 21, 2016. On December 21, 2016, Stora filed an objection to the R&R in both cases. (See Obj. 15-CV-7106 (Doc. No. 99); Obj. 16-CV-180 (Doc. No. 69).)
Judge Levy addressed the pending motions in both cases in a single R&R and entered a copy of the R&R on each docket. (See R&R).
STANDARD OF REVIEW
When reviewing an R&R, a district court "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). When a party raises an objection to an R&R, "the court is required to conduct a de novo review of the contested sections." See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Portions to which no party has objected are reviewed for clear error. See Morritt v. Stryker Corp., 973 F. Supp. 2d 177, 181 (E.D.N.Y. 2013); Price v. City of New York, 797 F. Supp. 2d 219, 223 (E.D.N.Y. 2011). The Court will find clear error only where, upon a review of the entire record, it is left with the definite and firm conviction that a mistake has been committed. See Fed. R. Civ. P. 72(a); Regan v. Daimler Chrysler Corp., No. 07-CV-1112 (RRM) (JO), 2008 WL 2795470, at *1 (E.D.N.Y. July 18, 2008) (quoting Nielsen v. New York City Dep't of Educ., No. 04-CV-2182 (NGG) (LB), 2007 WL 1987792, at *1 (E.D.N.Y. July 5. 2007)) ("[T]he district court must affirm the decision of the magistrate judge unless the district court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.")
DISCUSSION
Although Stora filed an objection to the R&R in both cases, neither objection contained substantive arguments contesting portions of the R&R. (See Obj. 15-CV-7106; Obj. 16-CV-180.) Rather, the objections simply include a trademark information sheet for a logo using the words "Don't Ask," similar to the trademark information sheet attached as Exhibit B to Stora's complaint in 15-CV-7106. (Compare Obj. 15-CV-7106 at 4-6, and Obj. 16-CV-180 at 4-6, with 7106 Compl. at 4-5.) Because Stora failed to provide substantive arguments contesting portions of the R&R, the Court reviews the R&R for clear error.
For ease of reference, citations to Court documents utilize the Electronic Case Filing System ("ECF") pagination.
Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, the Court has reviewed the R&R for clear error and, finding none, concurs with the R&R in its entirety. See Covey v. Simonton, 481 F. Supp. 2d 224, 226 (E.D.N.Y. 2007).
CONCLUSION
Accordingly, it is hereby ORDERED that defendants' motions to dismiss the complaint be granted. (Mot. to Dismiss 15-CV-7106 (Doc. No. 59); Mot. to Dismiss 16-CV-180 (Doc. Nos. 34-35).) It is further ordered that all of Stora's pending motions are denied.
The Court notes that after the issuance of Judge Levy's R&R, Stora filed motions for summary judgment in both cases on January 26, 2017. (See Mot. Summ. J. 15-CV-7106 (Doc. No. 103); Mot. Summ. J. 16-CV-180 (Doc. No. 72.) Stora's motions for summary judgment are premature because the parties have yet to begin discovery in these cases. See Fed. R. Civ. P. 56(d) (stating that courts may deny a motion for summary judgment where nonmovants have not had a chance to take discovery). In any case, both motions for summary judgment merely restate Stora's previous allegations, which were rejected in the R&R. Accordingly, the Court denies Stora's motions for summary judgment. --------
The Clerk of Court is respectfully directed to enter judgment, mail a copy of this Memorandum and Order and the accompanying judgment to plaintiff Skiboky Shavar Stora, pro se, note the mailing on the docket, and close these cases.
SO ORDERED. Dated: Brooklyn, New York
March 15, 2017
/s/_________
ROSLYNN R. MAUSKOPF
United States District Judge