Opinion
01-CV-00881A(Sr).
February 13, 2004
REPORT, RECOMMENDATION AND ORDER
This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. ## 13, 24.
Currently before me is defendants' motion to dismiss certain causes of action (Dkt. #21), and plaintiff's motion to amend the complaint to assert a cause of action pursuant to Title II of the Americans with Disabilities Act. Dkt. #27. For the reasons set forth below, it is recommended that defendants' motion to dismiss be granted in part, and plaintiff's motion be granted.
BACKGROUND
Plaintiff's complaint alleges fifteen causes of action alleging discrimination on the basis of disability, refusal to provide reasonable accommodations, hostile work environment and retaliation. Dkt. #1. In a nutshell, plaintiff, a tenured professor at Buffalo State College who suffers from multiple sclerosis, osteoporosis and fibromyalgia, claims that
the Defendants embarked on a course of conduct so malicious and discriminatory, by denying [Plaintiff's] requests for reasonable accommodations, by creating a hostile work environment, by retaliating against her for reporting acts of discrimination, and by directing her not to report discriminatory actions and violations of law to federal authorities, that it was intended that the Plaintiff resign her position as Project Director of the Grant, forfeit earnings and benefits associated with the Grant, and ultimately resign from her position as Professor at Buffalo State College or be placed, involuntarily, on unpaid medical leave.
Dkt. #1, ¶ 26.
DISCUSSION ANALYSIS Defendants' Motion to Dismiss
Dismissal Standard
When ruling on a motion to dismiss, the court accepts the material facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiffs and against the defendants. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944 (1973).
The court is required to read the complaint broadly and with great latitude on a motion to dismiss. Yoder v. Orthomolecular Nutr. Inst., 751 F.2d 555, 558 (2d Cir. 1985). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiffs can prove no set of facts which would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Stated another way, I must determine whether plaintiff has stated any valid ground for relief in her complaint. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993), cert. denied, 513 U.S. 1014 (1994).
Rehabilitation Act of 1973
Plaintiff's seventh, eighth and ninth causes of action claim that the defendants violated section 504 of the Rehabilitation Act of 1973. Dkt. #1.
Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).
The defendants move to dismiss plaintiff's Rehabilitation Act claims as barred by the Eleventh Amendment to the United States Constitution pursuant to the decision of the Court of Appeals for the Second Circuit in Garcia v. SUNY Health Sciences Center, 280 F.3d 98, 114 (2d Cir. 2001). Dkt. #22, p. 4.
Plaintiff urges the Court to disregard the Court of Appeals' decision in Garcia and to accept the conclusion of numerous other Courts of Appeals which have found that the statute effectively conditions receipt of federal financial assistance upon waiver of Eleventh Amendment immunity. Dkt. #28, p. 6.
The Eleventh Amendment of the United States Constitution bars suit in federal court by an individual against a state or its agencies, unless the state has waived its sovereign immunity by consenting to suit in federal court or Congress has authorized such a suit pursuant to a valid exercise of its power. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363-64 (2001); College Savs. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680 (1999); Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Historically, Congress has relied upon the Commerce Clause, Section 5 of the Fourteenth Amendment, and the Spending Clause of the United States Constitution to abrogate state sovereign immunity.
The Eleventh Amendment of the United States Constitution provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
For Eleventh Amendment purposes, the State University of New York and its colleges are an integral part of the government of the State of New York and when they are sued, the State is the real party. Garcia, 280 F.3d at 107; Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990), cert. denied sub. nom Wharton v. Dube, 501 U.S. 1211 (1991); Pietraszewski v. Buffalo State College, 1997 WL 436763, (W.D.N.Y. Aug. 1, 1997). Moreover, to the extent that plaintiff is suing the individual defendants in their official capacities, she is seeking dam ages from New York and the Eleventh Amendment therefore shields them to the same extent that it shields SUNY and Buffalo State College. Garcia, 280 F.3d at 107. To the extent that plaintiff is suing the individual defendants in their individual capacities, such claims must be dismissed because § 504 of the Rehabilitation Act does not provide for individual capacity suits against state officials. Id.
However, in the decision of Seminole Tribe of Florida v. Florida, the United States Supreme Court overruled its decision in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), and determined that Congress' powers under Article I of the Constitution, which includes the power to regulate interstate commerce, "cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction" by the Eleventh Amendment. 517 U.S. 44, 72-73 (1996).
Because the Eleventh Amendment is necessarily limited by Congress' power to enforce, by appropriate legislation, the substantive provisions of the Fourteenth Amendment, Congress can abrogate the Eleventh Amendment without the States' consent when acting pursuant to § 5 of the Fourteenth Amendment. Seminole Tribe, 517 U.S. at 59, citing Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Such legislation must be an appropriate remedy for identified constitutional violations, as opposed to an attempt to substantively redefine the States' legal obligations. Nevada Dep't. of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1977 (May 27, 2003). An appropriate remedy will exhibit "congruence and proportionality between the injury to be prevented or remedied and the means to adopt that end." Id., quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
In Board of Trustees v. Garrett, the Supreme Court of the United States determined that Title I of the ADA exceeded the authority of Congress pursuant to § 5 of the Fourteenth Amendment. 531 U.S. 356. The Supreme Court concluded its decision by noting that although Congress is the final authority as to desirable public policy,
in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here, and to uphold the Act's application to the States would allow Congress to rewrite the Fourteenth Amendment law laid down by this Court. . . . Section 5 does not so broadly enlarge congressional authority.Id. at 374.
Pursuant to the Spending Clause of Article I of the United States Constitution, Congress may also attach conditions on the receipt of federal funds to accomplish policy objectives it could not directly legislate. South Dakota v. Dole, 483 U.S. 203, 206-07 (1987).
Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress's power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the "contract." There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981) (internal citations and footnote omitted); see also College Savings Bank, 527 U.S. at 682 ("The classic description of an effective waiver of a constitutional right is the `intentional relinquishment or abandonment of a known right or privilege.'").
Against the background of these Supreme Court decisions, the Court of Appeals for the Second Circuit considered whether Title II of the ADA and section 504 of the Rehabilitation Act effectively abrogated state sovereign immunity. Garcia, 280 F.3d 98. With respect to Title II of the ADA, the Court of Appeals determined that although "the Fourteenth Amendment countenances inequality in the treatment of the disabled as long as the disparate treatment is rationally related to a legitimate government end, Title II's requirement that state governments make reasonable modifications is far broader: the eradication of unequal effects." Id. at 110. Accordingly, the Court of Appeals found "that Title II in its entirety exceeds Congress's authority under § 5." Id. "Because § 504 of the Rehabilitation Act and Title II of the ADA offer essentially the same protections for people with disabilities," the Court of Appeals held that "our conclusion that Title II of the ADA as a whole exceeds Congress's authority under § 5 of the Fourteenth Amendment applies with equal force to § 504 of the Rehabilitation Act." Id. at 113.
Recognizing that Section 504 of the Rehabilitation Act was enacted pursuant to Congress's authority under the Spending Clause of Article I of the United States Constitution, the Garcia Court also considered whether Congress successfully conditioned receipt of federal funds upon waiver of sovereign immunity. Id. The Garcia Court concluded that Congress clearly expressed its intent to condition acceptance of federal funds upon a state's waiver of its Eleventh Amendment immunity by declaring that
[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of Section 504 of the Rehabilitation Act of 1973.Id., quoting 42 U.S.C. § 2000d-7; see Lane v. Pena, 518 U.S. 187, 200 (1996) (recognizing Section 2000d-7 as a valid and unambiguous waiver of states' Eleventh Amendment immunity).
42 U.S.C. § 2000d-7 was adopted as part of the Rehabilitation Act Amendments of 1986 in response to the United State Supreme Court's decision that the initial "provisions of the Rehabilitation Act fall far short of expressing an unequivocal congressional intent to abrogate the States' Eleventh Amendment immunity." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).
Despite this determination, the Court of Appeals found itself "unable to conclude that New York in fact waived its sovereign immunity against suit under § 504 when it accepted federal funds for SUNY" because, "[a]t the time that New York accepted the conditioned funds, Title II of the ADA was reasonably understood to abrogate New York's sovereign immunity under Congress's Commerce Clause authority." Id. at 114. The Court of Appeals then noted that because "the proscriptions of Title II and § 504 are virtually identical, a state accepting conditioned federal funds could not have understood that in doing so it was actually abandoning its sovereign immunity from private damages suits, since by all reasonable appearances state sovereign immunity had already been lost." Id. Accordingly, the Court of Appeals held that "Garcia's § 504 damage claim against New York fails because New York had not knowingly waived its sovereign immunity from suit." Id. at 114-15.
In reaching this conclusion, the Court of Appeals noted that several other circuits had "held that a state's acceptance of federal funds constitutes a waiver of its sovereign immunity from suit under § 504 of the Rehabilitation Act." Id. at 115, n. 5, citing Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000), cert. denied sub. nom Arkansas Dep't of Educ. v. Jim C., 533 U.S. 949 (2001); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997), cert. denied sub. nom. Wilson v. Armstrong, 524 U.S. 937 (1998). The Garcia Court deemed these cases
unpersuasive because they focus exclusively on whether Congress clearly expressed its intention to condition waiver on the receipt of funds and whether the state in fact received the funds. None of these cases considered whether the state, in accepting the funds, believed it was actually relinquishing its right to sovereign immunity so as to make the consent meaningful as the Supreme Court required in College Savings Bank. . . .Id.
Subsequently, numerous circuits have considered the issue and rejected Garcia's analysis. For example, the Court of Appeals for the Third Circuit concluded that "[e]ven though the state may believe that it no longer possesses any sovereign immunity to surrender because of Congress's exercise of its constitutional power of abrogation, it still must be held to be aware that its surrender of this immunity constitutes a condition for federal financial assistance due to the unambiguity of the statutory provision itself." A.W. v. Jersey City Public Schools, 341 F.3d 234 (3rd Cir. 2003); see also Nieves-Marquez v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003); Doe v. Nebraska, 345 F.3d 593 (8th Cir. 2003); Garrett v. University of Alabama at Birmingham, 344 F.3d 1288, 1292 (11th Cir. 2003); Schotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003). Only the Court of Appeals for the Fifth Circuit has adopted the reasoning of Garcia. Pace v. Bogalusa City School Bd., 325 F.3d 609, 617-18 (5th Cir. 2003), reh'g granted en banc, 339 F.3d 348 (Jul. 17, 2003).
While this Court recognizes the conflict among the circuits on this issue, absent clarification from the Supreme Court of the United States, the analysis of the Court of Appeals for the Second Circuit is controlling. The remaining question, however, is at what point in time should the state be deemed to have made a knowing waiver of its sovereign immunity. In Garcia, the allegedly discriminatory conduct occurred until August 1995, when the Court of Appeals noted that "even the most studied scholar of constitutional law would have had little reason to doubt the validity of Congress's asserted abrogation of New York's sovereign immunity as to private damage suits under Title II." 280 F.3d at 114, n. 4.
As late as February 24, 2000, the Court of Appeals for the Second Circuit held that the Rehabilitation Act validly abrogated Eleventh Amendment immunity. See Kilcullen v. New York State Dep't of Transp., 205 F.3d 77 (2d Cir. 2000). However, on February 21, 2001, the Supreme Court held that Title I of the ADA exceeded Congress's authority to abrogate sovereign immunity pursuant to section 5 of the Fourteenth Amendment. Garrett, 531 U.S. 356. In its Garcia decision, the Court of Appeals for the Second Circuit recognized that " Kilcullen has since been implicitly abrogated by the Supreme Court's decision in Garrett." 280 F.3d at 113, n. 3.
In light of the Court of Appeals reliance upon Garrett as invalidating its precedent regarding sovereign immunity under the Rehabilitation Act, it is recommended that the date of the Garrett decision be deemed the date upon which New York State regained its ability to knowingly waive its sovereign immunity from suit. See Wasser v. New York State Offfice of Vocational Educ. Servs. for Individuals with Disabilities, 2003 WL 22284576, at *10 (E.D.N.Y. Sept. 30, 2003) (colorable basis for New York to have suspected the invalidity of purported Eleventh Amendment abrogation under Title II of the ADA arose at least as early as the Supreme Court decision in Garrett); Kilcullen v. New York State Dep't. of Labor, 2003 WL 1220875, at *3, n. 1 (N.D.N.Y. March 13, 2003) (after Garrett, New York could not have reasonably concluded that Congress enacted the Rehabilitation Act pursuant to its authority under § 5 of the Fourteenth Amendment); but see Denmeade v. King, 2002 WL 31018148 (W.D.N.Y. Aug. 1, 2002) (adopting date of the Garcia decision — September 25, 2001 — as the latest date New York State could claim to have been unable to knowingly waive sovereign immunity by accepting federal funds).
Accordingly, It is recommended that defendants' motion to dismiss plaintiff's seventh, eighth, and ninth causes of action as barred by the Eleventh Amendment to the United States Constitution be GRANTED IN PART, insofar as plaintiffs allegations precede the United States Supreme Court's decision in Garrett on February 21, 2001.
42 U.S.C. § 1983 Claim for Damages
Plaintiff's first cause of action seeks damages against defendants Howard, Battle, Marotta, and Samora in their individual capacities pursuant to 42 U.S.C. § 1983. Dkt. #1.
Defendants move to dismiss plaintiff's claims of discriminatory conduct preceding December 5, 1998 as barred by the statute of limitations. Dkt. #22, p. 10.
The statute of limitations for a claim pursuant to 42 U.S.C. § 1983 which occurred in New York is three years. Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997). "When a plaintiff experiences a continuous practice and policy of discrimination, however, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotations omitted). A "continuing violation may be found where there is proof of specific ongoing discriminatory policies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Id. at 704.
Although the vast majority of plaintiff's factual allegations are within the three year statute of limitations period, those allegations which fall outside of that period are sufficiently related as to warrant inclusion as a continuing violation. For example, plaintiff alleges that in 1998, the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"), recommended that defendants afford plaintiff voice recognition software and a computer capable of utilizing such software, but that defendants denied plaintiff's ongoing requests for such assistive technologies. Dkt. #1. Similarly, plaintiff alleges that her physician wrote defendants to request accommodations for plaintiff such as a handicap parking space, office carpeting free from tears, assistance with carrying, minimal walking, etc., on November 11, 1997; February 17, 1999; and February 23, 2000, but that defendants refused such requests. Dkt. #1. Accordingly, it is recommended that defendants' motion to dismiss allegations occurring prior to December 5, 1998, be DENIED. 42 U.S.C. § 1983 Claim for Injunctive Relief
Plaintiff's second cause of action seeks prospective and injunctive relief pursuant to 42 U.S.C. § 1983 against Buffalo State College and SUNY. Dkt. #1.
Defendants move to dismiss plaintiff's second cause of action on the ground that plaintiff's claim "does not seek actual, specific injunctive relief." Dkt. #22, p. 8.
Plaintiff responds that her claim for injunctive relief should be permitted pursuant to the exception recognized by the United States Supreme Court in Ex Parte Young, 209 U.S. 123 (1908). Dkt. #28, p. 9.
"The Eleventh Amendment . . . does not preclude suits against state officers in their official capacities for prospective relief to prevent a continuing violation of federal law." Henrietta D. v. Bloomberg, 331 F.3d 261, 287 (2d Cir. 2003), citing Ex Parte Young, 209 U.S. 123, 155-56 (1908). "In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." CSX Transp. v. New York State Office of Real Prop., 306 F.3d 87, 98 (2d Cir. 2002), quoting Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635 (2002).
Plaintiff's complaint clearly sets forth ongoing violations of federal law forbidding discrimination on the basis of disability and retaliation for complaining about such discrimination. For example, plaintiff alleges that defendants have diminished her responsibilities under a federal grant; denied her requests for accessible office space and assistive technologies; required her to undergo a medical examination to assess her degree of disability; and subjected her to inferior teaching schedules and inaccessible classrooms and office space in an effort to force her to resign or be placed on involuntary medical leave. Dkt. #1. Accordingly, it is recommended that defendants' motion to dismiss plaintiff's second cause of action be DENIED. State Law Claims
Plaintiff agrees that the New York State Claims should be dismissed and brought in New York State Court. Dkt. #28, p. 10. Accordingly, it is recommended that defendants' motion to dismiss plaintiff's tenth, eleventh, twelfth and thirteenth causes of action, which allege violation of the New York State Executive Law § 290(a)(c) ("Human Rights Law"), and defendant's motion to dismiss plaintiff's fourteenth and fifteenth causes of action, which allege intentional infliction of emotional distress and prima facie tort, be GRANTED.
Plaintiff's Motion to Amend
Plaintiff moves to amend her complaint to assert a cause of action pursuant to Title II of the Americans with Disabilities Act against defendants SUNY, Buffalo State College, Howard, Battle, Marotta and Samora in their official capacities. Dkt. #28, p. 10.The parties agreed to stay this aspect of the motion pending a decision from the United States Supreme Court in Medical Bd. of Califronia v. Hason, 537 U.S. 1028 (2002) (granting cert.). Subsequently, however, the State of California decided that it did not wish to contest liability, causing the United States Supreme Court to dismiss certiorari. Hason, ___ U.S. ___, 123 So. Ct. 1779 (April 7, 2003). Accordingly, the Court will consider plaintiff's motion.
Fed.R.Civ.P. 15(a) provides that a party may amend a pleading by leave of court or by written consent of the adverse party. Leave to amend is to be "freely granted" unless the party seeking leave has acted in bad faith, there has been an undue delay in seeking leave, there will be unfair prejudice to the opposing party if leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Fed.R.Civ.P. 15(a). "Absent a showing that significant additional discovery burdens will be incurred or that the trial of the matter will be significantly delayed, amendment should be permitted." W.R. Grace Co. v. Zotos Int'l, Inc., 2000 WL 1843282 (W.D.N.Y. 2000). The decision to grant or deny a motion for leave to amend a pleading is within the discretion of the district court. Foman, 371 U.S. at 182.
The Court of Appeals for the Second Circuit has determined that a private suit for money damages under Title II of the ADA may be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability." Garcia, 280 F.3d at 112. To meet this standard, plaintiffs "may rely on a burden-shifting technique similar to that adopted in McDonnell Douglas Corp. v. Green . . . or a motivating-factor analysis similar to that set out in Price Waterhouse v. Hopkins . . ." Id.
Plaintiff's complaint alleges, inter alia, that defendant Battle mocked her disability and repeatedly questioned plaintiff's ability to perform her duties because of her disability; forbade other individuals from assisting plaintiff with the physical delivery of documents; provided plaintiff with inferior office space relative to nondisabled employees; provided plaintiff with insufficient office space to permit use of her walker while nondisabled employees were provided sufficient space; and made demands of plaintiff that caused her to walk unnecessarily. Dkt. #1. Plaintiff also alleges, inter alia, that the defendants retaliated against her when she complained about Battle's discriminatory conduct by constructively removing her from her position as project director of a grant; assigning her to supervise student teachers in multiple school settings, including several schools which were not accessible for persons with disabilities, thereby substantially increasing the physical demands upon plaintiff; and directed plaintiff to submit to a medical examination by defendants' doctors to determine whether plaintiff should be placed on involuntary medical leave. Dkt. #1. These allegations are sufficient to state a claim of discriminatory animus. In addition, defendants can allege no prejudice from the proposed amendment as discovery in this matter has not yet commenced. Accordingly, it is recommended that plaintiff's motion to amend her complaint to allege a cause of action pursuant to Title II of the ADA be GRANTED.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that defendants' motion to dismiss the Complaint (Dkt. #21), be GRANTED IN PART, as set forth above, and that plaintiff's motion to amend the complaint to assert a cause of action pursuant to Title II of the Americans with Disabilities Act (Dkt. #27), be GRANTED.Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report, Recommendation and Order be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not presented to the magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 So. Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.
The Clerk is hereby directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties.