Rankin v. City of Niagara Falls et al, No. 1:2009cv00974 - Document 87 (W.D.N.Y. 2012)

Court Description: DECISION AND ORDER granting 53 Motion to Vacate ; adopting Report and Recommendation 81 ; vacating stipulation of dismissal 51 and text order 52 . Clerk of Court to reopen the action. Case is referred back to Magistrate Judge McCarthy for further proceedings. Signed by Hon. Richard J. Arcara on 7/11/2012. (JMB)

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UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK PAUL A. RANKIN, Plaintiff, DECISION AND ORDER 09-CV-974-A v. CITY OF NIAGARA FALLS, et al., Defendants. This employment discrimination case was referred to Magistrate Judge Jeremiah J. McCarthy pursuant to 28 U.S.C. § 636(b)(1). On June 13, 2012, Magistrate Judge McCarthy filed a Report and Recommendation (Dkt. No. 81) (the R&R ) which recommended that plaintiff Paul A. Rankin s pro se motion to vacate a Stipulation of Dismissal and to reinstate the action be granted pursuant to Fed.R.Civ.P. 60(b). Magistrate Judge McCarthy also granted in the R&R a cross-motion made by plaintiff Rankin s counsel of record, Christina A. Agola, and her firm, to be relieved as counsel for the plaintiff. The cross-motion was granted subject to the imposition of sanctions, if warranted for Ms. Agola s lack of candor with the Court regarding her conclusions about the viability of the plaintiff s case. W hen a Magistrate Judge rules on a dispositive matter, a ruling to which a party timely objects is subject to de novo review by the presiding district judge. Fed.R.Civ.P. 72(b); see 28 U.S.C. § 636(b)(1)(B). W hen no timely objection is made to a dispositive ruling, however, review by the presiding district judge is only for clear error. Charvenko v. Barbera, 2011 W L 1659882 at *1 (W .D.N.Y. May 3, 2011). No objections to the recommendation of Magistrate Judge McCarthy to vacate the Stipulation of Dismissal and to reinstate the action have been filed. The Court finds no clear error in the Magistrate Judge s recommendation to vacate the Stipulation of Dismissal and to reinstate the action. See Fennell v. TLB Kent Co., 865 F.2d 498, 502 (2d Cir. 1989). The recommendation in the R&R is therefore adopted. Attorney Christina A. Agola, plaintiff Rankin s former counsel of record, did filed an objection on her own behalf (Dkt. No. 83) to the decision in the R&R that Ms. Agola be required to show cause why she should not be sanctioned for lack of candor with the Court regarding the viability of the plaintiff s case. (Dkt. 81, pp. 14-19). Because Magistrate Judge McCarthy has not yet recommended whether Ms. Agola should be sanctioned, and because she has not been heard by Magistrate Judge McCarthy on the issue of whether she should be sanctioned, Ms. Agola s objection is unripe and the Court recommits that matter to Magistrate Judge McCarthy pursuant to 28 U.S.C. § 636(b)(1) for further proceedings consistent with the R&R. 2 CONCLUSION Accordingly, the recommendation that plaintiff Paul A. Rankin s pro se motion to vacate a Stipulation of Dismissal and to reinstate the action [53] be granted pursuant to Fed.R.Civ.P. 60(b) is accepted. The Stipulation of Dismissal [51] and the Text Order approving it [52] are hereby vacated. The Clerk shall reopen the action. SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: July 11, 2012 3

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