The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
DERRICK LIN,
:
Plaintiff,
: MEMORANDUM DECISION
AND ORDER
- against - :
: 19-CV-1087 (AMD) (LB)
DISH NETWORK LLC,
:
Defendant. :
:
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ANN M. DONNELLY, United States District Judge:
On February 22, 2019, the pro se plaintiff brought this action alleging the defendant
violated his rights under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112 et
seq., when it terminated his employment. On February 5, 2020, the Court granted the
defendant’s motion to compel arbitration and stayed the litigation. After the parties exchanged
discovery and participated in a two-day arbitration proceeding, the arbitrator granted the
defendant’s motion for judgment as a matter of law. Th e plaintiff moves to vacate the arbitration
award, and the defendant cross-moves to confirm the aw ard and dismiss the case.
On March 31, 2023, I referred the petition to Magistrate Judge Lois Bloom for a report
and recommendation. On June 1, 2023, Judge Bloom recommended that I grant the defendant’s
motion to confirm the arbitration award and deny the plaintiff’s motion to vacate the arbitration
award. (ECF No. 43.) The plaintiff filed objections to the report and recommendation on June
8, 2023 (ECF No. 44), which the defendant opposes.
STANDARD OF REVIEW
A district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A party’s
objections must be specific; where a party “makes only conclusory or general objections, or
simply reiterates [the] original arguments, the Court reviews the Report and Recommendation
only for clear error.” Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (quoting
Barratt v. Joie, No. 96-CV-324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). The district
judge must evaluate proper objections de novo and “may accept, reject, or modify the
recommended disposition.” Fed. R. Civ. P. 72(b)(3). “[E]ven in a de novo review of a party’s
specific objections, [however,] the court will not consider ‘arguments, case law and/or
evidentiary material which could have been, but were not, presented to the magistrate judge in
the first instance.’” Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y. Feb.
15, 2012) (alterations omitted) (quoting Kennedy v. Adamo, No. 02-CV-1776, 2006 WL
3704784, at *1 (E.D.N.Y. Sept. 1, 2006)).
A pro se party’s objections are “generally accorded leniency” and construed “to raise the
strongest arguments that they suggest.” Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131,
at *2 (S.D.N.Y. Sept. 26, 2008) (internal quotation marks and citations omitted). “Nonetheless,
even a pro se party’s objections to a Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate’s proposal, such that no party be allowed a second
bite at the apple by simply relitigating a prior argument.” Pinkney v. Progressive Home Health
Serv., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (internal quotation
marks and citation omitted). District courts “generally should not entertain new grounds for
relief or additional legal arguments not presented to the magistrate.” Rosenberg v. Lashkar-E-
Taiba, No. 10-CV-5381, 2017 WL 11647006, at *5 (E.D.N.Y. Mar. 31, 2017) (quoting Ortiz v.
Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)).
DISCUSSION
The plaintiff objects on two grounds. First, he argues that the defendant obtained the
arbitration award by “undue means” when counsel questioned the plaintiff about the plaintiff’s
“difficult relationship with his mother” and the “emotional distress” he suffered after the
defendant fired him. (ECF No. 44 at 7.) The defendant responds that the Court should not
consider these arguments because the plaintiff did not raise them before Judge Bloom. (ECF No.
45.) In any event, the defendant says, the plaintiff’s objections are meritless. (Id.)
“‘Courts generally do not consider new evidence raised in objections to a magistrate
judge’s report and recommendation’ absent a compelling justification for failure to present such
evidence to the magistrate judge.” Rosenberg v. Lashkar-e-Taiba, No. 10-CV-5381, 2017 WL
11647006, at *5 (E.D.N.Y. Mar. 31, 2017) (quoting Azkour v. Little Rest Twelve, Inc., 2012 WL
1026730, at *2 (S.D.N.Y. Mar. 27, 2012) (internal citation omitted and collecting cases)). While
a district court, upon receipt of a report and recommendation, may “receive further evidence or
recommit the matter to the magistrate judge with instructions,” 28 U.S.C. § 636(b),
“[c]onsiderations of efficiency and fairness militate in favor of a full evidentiary submission for
the Magistrate Judge’s consideration.” Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998).
Judge Bloom rejected the arguments that the plaintiff did make: that his supervisor’s
testimony was a fraud on the court, and that the arbitrator was biased because the defendant’s
payment of the initial arbitration fee was late. Judge Bloom concluded that inconsistencies in the
supervisor’s testimony did not rise to the level of fraud. (ECF No. 43 at 7-8.) She also rejected
the plaintiff’s claim that the arbitrator was biased. (Id. at 9-10.) The plaintiff does not explain
why he did not make his new arguments, which are similar in kind to the claims he did make,
and are not based on facts or law that was unavailable to the plaintiff when he moved to vacate
the arbitration award.
Even liberally construing this new objection as preserved, however, it provides no basis
for relief. Rather, it is simply an attempt to relitigate the merits of his discrimination action.
This is not a ground for vacatur under Section 10(a) of the FAA. See Pacelli v. Vane Line
Bunkering, Inc., 549 F. Supp. 3d 306, 312 (S.D.N.Y. 2021).
Second, the plaintiff opposes any award of “costs, disbursements [and] attorney’s fees”
because he cannot pay them, and because he is a Medicaid recipient. The defendant has not
made an application for fees and costs, so this objection is untimely.
After a careful review, Judge Bloom concluded that there is no basis to disturb the
arbitrator’s findings. This finding was correct. Accordingly, I adopt her thorough and well-
reasoned report and recommendation it in its entirety. The Clerk of Court is respectfully directed
to close the case.
SO ORDERED.
s/Ann M. Donnelly
___________________________
Ann M. Donnelly
United States District Judge
Dated: Brooklyn, New York
July 26, 2023