Gencarelli v. The Coca-Cola Company et al, No. 1:2020cv00085 - Document 9 (N.D.N.Y 2020)
Court Description: DECISION & ORDER adopting Report and Recommendations re 7 Report and Recommendations. The Report-Recommendation of Magistrate Judge Hummel, dkt. # 7, is hereby ACCEPTED and ADOPTED. Plaintiffs claims for vicarious liability and negligence per se are dismissed without prejudice to re-filing. Plaintiffs Second Amended Complaint, dkt. # 8, is hereby REFERRED to Magistrate Judge Hummel for appropriate action.IT IS SO ORDERED. Signed by Senior Judge Thomas J. McAvoy on May 20, 2020. (Copy served via regular and certified mail)(khr)
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Gencarelli v. The Coca-Cola Company et al Doc. 9 Case 1:20-cv-00085-TJM-CFH Document 9 Filed 05/20/20 Page 1 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ JAMES GENCARELLI, Plaintiff, vs. 1:20-CV-85 (TJM/CFH) THE COCA-COLA COMPANY, and LIBERTY COCA-COLA BEVERAGES, Defendants. ___________________________________________ Thomas J. McAvoy, Sr. U.S. District Judge DECISION & ORDER The Court referred this pro se civil action to Magistrate Judge Christian F. Hummel for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff proceeding pro se and in forma pauperis, alleges that Defendants, the Coca-Cola Company and a company contracted to bottle Coca-Cola beverages, damaged him by selling him an aluminum can contaminated by sulfuric acid. Plaintiff alleges that he injured his lips, throat, and mouth by drinking the product. His complaint alleges various types of products liability claims against the Defendants. Magistrate Judge Hummel gave the Plaintiff’s Amended Complaint an initial screening. His Report-Recommendation, dkt. # 7, issued on April 13, 2020, grants Plaintiff’s motion to proceed in forma pauperis and recommends that the Court dismiss without prejudice Plaintiff’s claims for vicarious liability and negligence per se. Magistrate 1 Dockets.Justia.com Case 1:20-cv-00085-TJM-CFH Document 9 Filed 05/20/20 Page 2 of 2 Judge Hummel recommends that the Court and accept the rest of the Complaint for filing. No party objected to the Report-Recommendation, and the time for such objections has passed. Plaintiff responded to the Report-Recommendation by filing an Amended Complaint. After examining the record, this Court has determined that the ReportRecommendation is not subject to attack for plain error or manifest injustice and the Court will accept and adopt the Report-Recommendation for the reasons stated therein. The Court will refer the Plaintiff’s recently filed Second Amended Complaint to Magistrate Judge Hummel for appropriate action. Accordingly, The Report-Recommendation of Magistrate Judge Hummel, dkt. # 7, is hereby ACCEPTED and ADOPTED. Plaintiff’s claims for vicarious liability and negligence per se are dismissed without prejudice to re-filing. Plaintiff’s Second Amended Complaint, dkt. # 8, is hereby REFERRED to Magistrate Judge Hummel for appropriate action. IT IS SO ORDERED. Dated: May 20, 2020 2
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