Canning v. Hofmann et al, No. 1:2015cv00493 - Document 43 (N.D.N.Y 2015)
Court Description: DECISION AND ORDER granting Defts' 12 Motion to Dismiss the Lead Case Complaint. Pltf's 1:15-CV-895 Member Case Complaint is dismissed without leave to amend for failure to state a claim and for lack of subject matter jurisdiction. The consolidated action is hereby closed without consideration of Pltf's pending 34 , 39 , 40 , 41 Motions, as such motions are moot. Clerk is to enter Judgment and close this case. Signed by Judge David N. Hurd on 11/2/15. (sfp, )
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Canning v. Hofmann et al Doc. 43 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------ERIN CANNING, Plaintiff, -v- 1:15-CV-0493 (DNH/RFT) (Lead Case) BRUNO HOFMANN and BONNIE HOFMANN, Defendants. -------------------------------ERIN CANNING, Plaintiff, -v- 1:15-CV-0895 (DNH/RFT) (Member Case) JOHN CANNING and JUDY CANNING, Defendants. ------------------------------APPEARANCES:1 OF COUNSEL: ERIN CANNING Plaintiff, Pro se P.O. Box 284 Saratoga Springs, NY 12866 HODGSON, RUSS LAW FIRM Attorneys for Defendants Bruno & Bonnie Hofmann 140 Pearl Street, Suite 100 Buffalo, NY 14202 JEFFREY T. FIUT, ESQ. MICHELLE L. MEROLA, ESQ. DAVID N. HURD United States District Judge 1 Defendants John and Judy Canning have not yet been served in this matter and, therefore, have not appeared. Dockets.Justia.com DECISION and ORDER Pro se plaintiff Erin Canning brought an action against defendants Bruno and Bonnie Hofmann in case number 1:15-CV-0493 seeking relief pursuant to five separate federal statutes (the “Lead Case Complaint”). On May 29, 2015, defendants in the Lead Case filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 12. On July 22, 2015, plaintiff filed a separate action against John and Judy Canning in case number 1:15-CV0895 (the “Member Case Complaint”). On September 16, 2015, the Honorable Randolph F. Treece, United States Magistrate Judge, advised by Report-Recommendation that: (i) defendants’ motion to dismiss the Lead Case Complaint be granted and (ii) plaintiff’s member case complaint be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). While plaintiff did not submit objections to the Report-Recommendation, on September 21, 2015, she filed a 112 page document entitled “Evidence Documents Enclosed and Update”, which has been reviewed and considered for the purposes of this Decision & Order. See ECF No. 37. Based upon a de novo review of the portions of the Report-Recommendation to which plaintiff objected, the Report-Recommendation is accepted in whole. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that: 1. Defendants’ Motion to Dismiss the Lead Case Complaint (ECF No. 12) is GRANTED; and 2. Plaintiff’s Member Case Complaint is DISMISSED without leave to amend for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and for lack of subject matter jurisdiction; and -2- 3. The consolidated action is hereby closed without consideration of plaintiff’s pending motion for injunctive relief (ECF No. 34), motion to expedite relief (ECF No. 39), motion to serve court marshall papers (ECF No. 40) and motion for bill payment (ECF No. 41), as such motions are moot and unnecessary; and it is further ordered that 4. The Clerk serve a copy of this Decision and Order upon plaintiff in accordance with the Local Rules. The Clerk of the Court shall enter judgment and close this case. IT IS SO ORDERED. Dated: November 2, 2015 Utica, New York -3-
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