Garcia v. Lewis Tree Service, Inc. et al, No. 6:2021cv06393 - Document 43 (W.D.N.Y. 2022)
Court Description: DECISION AND ORDER adopting 41 Report and Recommendation; denying 30 Motion to Amend Scheduling Order and denying 32 Motion for Leave to Amend Complaint. Signed by Hon. Elizabeth A. Wolford on 10/25/2022. (MGB)
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Garcia v. Lewis Tree Service, Inc. et al Doc. 43 Case 6:21-cv-06393-EAW-MJP Document 43 Filed 10/25/22 Page 1 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK EDDIE GARCIA, Plaintiff, DECISION AND ORDER 6:21-CV-06393 EAW v. LEWIS TREE SERVICE, INC., Defendant. Plaintiff Eddie Garcia (“Plaintiff”) has asserted a claim for violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. against defendant Lewis Tree Service, Inc. (Dkt. 1). On May 4, 2022, Plaintiff filed a motion for an extension of the Scheduling Order (Dkt. 30) and on June 3, 2022, filed a motion for leave to amend his complaint (Dkt. 32). On September 21, 2022, United States Magistrate Judge Mark W. Pedersen issued a thorough Report and Recommendation, recommending that both motions be denied. (Dkt. 41). Pursuant to 28 U.S.C. § 636(b)(1), the parties had 14 days to file objections to the Report and Recommendation. No objections were filed. The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. See Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice of the consequences, failure [to timely] object to a magistrate’s -1- Dockets.Justia.com Case 6:21-cv-06393-EAW-MJP Document 43 Filed 10/25/22 Page 2 of 3 report and recommendation operates as a waiver of further judicial review of the magistrate’s decision.”). Notwithstanding the lack of objections, the Court has conducted a careful review of the Report and Recommendation, as well as the prior proceedings in the case. The Report and Recommendation concludes that Plaintiff has not demonstrated good cause to justify amendment of the Scheduling Order. Notwithstanding the lack of demonstrated good cause, the Report and Recommendation finds that Plaintiff’s proposed amendment is futile because it presents the same or similar allegations to those previously dismissed by the Court against another defendant in the case without curing any of the identified deficiencies. Accordingly, the Report and Recommendation recommends that this Court deny Plaintiff’s motion to amend the Scheduling Order and for leave to amend his pleading. The Court finds no reason to reject or modify Magistrate Judge Pedersen’s Report and Recommendation. For these reasons, the Report and Recommendation is adopted in full. CONCLUSION For the foregoing reasons, the Report and Recommendation (Dkt. 41) recommending denial of Plaintiff’s motion to amend the Scheduling Order (Dkt. 30) and motion for leave to amend his complaint (Dkt. 32) is adopted in its entirety. -2- Case 6:21-cv-06393-EAW-MJP Document 43 Filed 10/25/22 Page 3 of 3 SO ORDERED. ELIZABETH A. WOLFORD Chief Judge United States District Court Dated: October 25, 2022 Rochester, New York -3-
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