Opinion
Civ. No. 1:18-CV-1141 (GLS/DJS)
10-16-2018
DR. MARCO BITETTO, Plaintiff, v. AMAZON, INC., Defendant.
APPEARANCES: MARCO BITETTO Plaintiff Pro Se 4 Fourth Avenue Rensselaer, New York 12144
APPEARANCES:
MARCO BITETTO
Plaintiff Pro Se
4 Fourth Avenue
Rensselaer, New York 12144
OF COUNSEL:
DANIEL J. STEWART United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
This action was recently reassigned to the undersigned because it was determined that it was related to Bitetto v. Amazon, Inc., 1:18-CV-1050. Dkt. No. 5. The matter is before the Court for an initial review in accordance with 28 U.S.C. § 1915(e) because Plaintiff has not paid the filing fee and instead seeks to proceed in forma pauperis. See Dkt. No. 2.
In a Report-Recommendation and Order dated September 27, 2018, I recommended that the previously filed action, 1:18-CV-1050, be dismissed with leave to amend on the ground that the Complaint failed to comply with the pleading requirements of the Federal Rules of Civil Procedure. Bitetto v. Amazon, Inc., 1:18-CV-1050, Dkt. No. 8. A review of what has been docketed in this action as the Complaint reveals that this case is virtually identical to the previously filed action. Both Complaints are actually letters to the Defendant, Amazon, Inc., advising it of the nature of Plaintiff's Complaint. The letters, in fact, are identical except that one is directed to the attention of Andrew Jessey while the other is directed to Jeff Bezos. Compare 1:18-CV-1050, Dkt. No. 1 with 1:18-CV-1141, Dkt. No. 1. Each also contains the same general collection of attached emails, though in a different order. Id. In fact, there is reason to believe that what has been docketed as the Complaint in this case was perhaps intended as an Amended Complaint in the 18-CV-1050 action. See Bitetto v. Amazon, Inc., 1:18-CV-1050, Dkt. No. 4 (letter indicating that Jeff Bezos rather than Andrew Jessey should have been identified as the proper CEO of Amazon Inc.)
Plaintiff spells this name differently in his various pleadings. For purposes of consistency, this spelling is used throughout this decision.
A review of the two Complaints makes plain that the actions are duplicative. The pleadings are virtual carbon copies of each other. "As part of its general power to administer its docket, a district court may stay or dismiss a suit that is duplicative of another federal court suit." Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir.2000). Consideration of whether the action is duplicative of a previous action is appropriate on the initial review under section 1915(e). Abreu v. Travers, 2015 WL 10741194, at *4 (N.D.N.Y. Sept. 14, 2015). While this Court has recommended that the first filed action be dismissed, it was also my recommendation that Plaintiff be granted leave to amend his Complaint so that it would comply with the controlling pleading rules and Plaintiff was given specific guidance on how to do so. Bitetto v. Amazon, Inc., 1:18-CV-1050, Dkt. No. 8 at p. 5. That action remains pending. Given the duplicative nature of these actions dismissal of this case without leave to amend is appropriate. Bester v. Taylor, 2018 WL 3068057, at *3 (N.D.N.Y. June 21, 2018).
WHEREFORE, it is hereby
RECOMMENDED, that this action be sua sponte dismissed without leave to amend; and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a). Date: October 16, 2018
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).
Albany, New York
/s/_________
Daniel J. Stewart
U.S. Magistrate Judge