Lewis v. Affiliated Enterprise Solutions, LLC

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

SCOTT PHILLIP LEWIS,

Plaintiff, 8:24-cv-61 (BKS/DJS)

v.

AFFILIAATED ENTERPRISE

SOLUTIONS, LLC, AES MEDICAL

SUPPLY, LLC and BRIAN STEVENS,

Defendants.

Appearances:

Plaintiff pro se:

Scott Phillip Lewis

Lake Placid, NY 12946

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Scott Phillip Lewis commenced this proceeding on January 15, 2024, alleging

violations of the Federal Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., (Dkt. No. 1). Plaintiff also

sought leave to proceed in forma pauperis (“IFP”). (Dkt. No. 2). This matter was referred to

United States Magistrate Judge Daniel J. Stewart. (Id.). On January 23, Plaintiff filed a request

that proposed summonses be issued, which Magistrate Judge Stewart subsequently denied. (Dkt.

Nos. 5–6). Following the denial, Plaintiff filed a motion for reconsideration and a supporting

memorandum of law. (Dkt. Nos. 7–8). On February 20, 2024, Magistrate Judge Stewart granted

Plaintiff’s application to proceed IFP, denied Plaintiff’s motion for reconsideration, and issued a

Report-Recommendation, recommending that Plaintiff’s complaint be dismissed with leave to

amend. (Dkt. Nos. 9–11). Judge Stewart also recommended that in the event his

recommendations are adopted, Plaintiff should also be directed to address the propriety of the

venue. (Dkt. No. 11, at 6–7). Plaintiff filed a motion on February 28 to waive PACER fees which

was denied. (Dkt. Nos. 12–13). Plaintiff has timely filed his objections to the Report-

Recommendation and has appealed the orders denying his request for the issuance of the

summonses and denying his motion to waive PACER fees. (Dkt. Nos. 14–16). For the reasons

set forth below, the Report-Recommendation is adopted and Plaintiff’s appeals are denied.

II. STANDARD OF REVIEW

This court reviews de novo those portions of the Magistrate Judge’s findings and

recommendations that have been properly preserved with a specific objection. Petersen v.

Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper

objection is one that identifies the specific portions of the [report-recommendation] that the

objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl.

Airways, Ltd., 976 F. Supp. 2d 290, 296 (E.D.N.Y. 2013) (citation omitted). Properly raised

objections “must be specific and clearly aimed at particular findings” in the report. Molefe v.

KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009) (citation omitted).

“[E]ven 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.” Machicote v. Ercole, No. 06-

cv-13320, 2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25,

2011) (citation omitted). Findings and recommendations as to which there was no properly

preserved objection are reviewed for clear error. Kruger, 976 F. Supp. 2d at 296 (citation

omitted).

A magistrate judge may issue orders regarding nondispositive pretrial matters, and the

district court reviews such orders under the “clearly erroneous or contrary to law” standard. 28

U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). “An order is clearly erroneous when the reviewing

court is left with the definite and firm conviction that a mistake has been committed. An order is

contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of

procedure.” Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 74 (N.D.N.Y. 2000)

(citations and internal quotation marks omitted). “Under this highly deferential standard,

magistrate judges are afforded broad discretion in resolving nondispositive disputes and reversal

is appropriate only if their discretion is abused.” Williams v. Rosenblatt Sec., Inc., 236 F. Supp.

3d 802, 803 (S.D.N.Y. 2017) (quoting Thai Lao Lignite (Thailand) Co., Ltd. v. Gov’t of Lao

People’s Democratic Republic, 924 F. Supp. 2d 508, 511 (S.D.N.Y. 2013)).

III. DISCUSSION

A. Objections to the Report-Recommendation

Plaintiff has not raised any objections to the facts or the legal framework set forth in the

Report-Recommendation. (See Dkt. No. 15). The Court therefore adopts Magistrate Judge

Stewart’s summary of the factual background and applicable law and presumes familiarity with

those matters for the purposes of this decision.

1. FLSA

Plaintiff alleges that he was misclassified as an independent contractor in violation of

FLSA. (Dkt. No. 1, at 6–7). Magistrate Judge Stewart characterized “[t]he precise nature of

Plaintiff’s FLSA claim” as “unclear,” explaining that because he “does not allege what harm he

suffered as a result” of being misclassified, his allegations are insufficient to meet the pleading

standard. (Dkt. No. 11, at 4). As a result, Magistrate Judge Stewart recommended the claim be

dismissed with leave to amend. (Id.). Plaintiff objects to the dismissal recommendation, noting

the liberal review standard used when reviewing a pro se complaint and that the misclassification

itself is what harmed Plaintiff. (Dkt. No. 15, at 2–3; see id. at 3 (“The misclassification was at

the behest of Brian Stevens which benefitted his LLCs, Affiliated Enterprise Solutions and AES

Medical Supply for federal income tax purposes at the expense of Plaintiffs [sic].”)).

Additionally, Plaintiff states he “has intended to file an amended complaint pursuant to Rule 15

of the Federal Rules of Civil Procedure upon the serving of complaint and summons on

Defendant which would offer additional clarity to the claims and damages being alleged.” (Id. at

3).

FLSA “provide[s] minimum wage and overtime pay requirements for covered, non-

exempt workers who are employed by an enterprise engaged in commerce.” Leevson v. Aqualife

USA, Inc., 183 F. Supp. 3d 397, 404 (E.D.N.Y. 2016) (citing 29 U.S.C. § 201 et seq.). However,

“[n]either the minimum wage requirement nor the overtime compensation requirement applies to

workers who are not employees, but independent contractors, of the employer.” Id. at 405

(citations omitted). Plaintiff’s Complaint alleges that he was misclassified as an independent

contractor, rather than an employee, (Dkt. No. 1, ¶¶ 36, 42), and in his Objections states that this

misclassification negatively impacted his federal income taxes, (Dkt. No. 15, at 3), but provides

no other factual details.1

Such facts are insufficient to assert a claim under FLSA because it is not clear from the

Complaint what violation of the law he seeks to allege. While whether a plaintiff is an

independent contractor or an employee is relevant to a FLSA claim, FLSA does not provide a

right of action for a misclassification on its own, but rather for specific statutory violations, such

1 The Court notes that the Complaint refers to a contract (Exhibit A) which is not attached to the complaint. The Court

has not addressed whether Plaintiff has adequately alleged that he was an employee, as opposed to an independent

contractor.

as failing to pay employees minimum wage or provide overtime compensation. See 29 U.S.C. §

216(b). Depending on what he seeks to remedy, Plaintiff would need to allege additional facts

regarding the statutory violation. See e.g., Lopez-Serrano v. Rockmore, 132 F. Supp. 3d 390, 402

(E.D.N.Y. 2015) (“An employee cannot state a claim for a minimum wage violation ‘unless [his]

average hourly wage falls below the federal minimum wage.’” (quoting Lundy v. Catholic

Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013)); Herrera v. Comme des

Garcons, Ltd., 84 F.4th 110, 115 (2d Cir. 2023) (stating that for a FLSA overtime claim,

“plaintiffs must sufficiently allege ‘40 hours of work in a given workweek as well as some

uncompensated time in excess of the 40 hours.’” (quoting Lundy, 711 F.3d at 114)). Plaintiff has

not alleged such facts regarding his wage or hours worked.

Accordingly, the Court adopts Magistrate Judge Stewart’s Report-Recommendation that

Plaintiff’s FLSA claim should be dismissed with leave to amend.

2. ADA

Plaintiff alleges that Defendants violated his rights under the ADA by discriminating

against him because he is disabled. (Dkt. No. 1, at 7–8). Magistrate Judge Stewart recommended

Plaintiff’s ADA claim be dismissed with leave to amend because “[t]he Complaint does not

allege that Plaintiff filed a discrimination claim with the EEOC and does not provide a copy of a

right to sue letter.” (Dkt. No. 11, at 5). Plaintiff has objected to the dismissal on the basis that

“[t]he Seventh Amendment extends the right to a jury trial in Federal civil cases.” (Dkt. No. 15,

at 3).

As an initial matter, the right to a jury trial as guaranteed by the Seventh Amendment is

not violated by requiring a plaintiff to administratively exhaust his claims before bringing them

to federal court. See Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (“[T]he Seventh

Amendment's guarantee of the right to the ultimate determination of issues of fact by the jury

does not extend to the threshold issue[s],” like administrative exhaustion, “that courts must

address to determine whether litigation is being conducted in the right forum at the right time.”

(citations and internal quotation marks omitted)). While Plaintiff’s objection is meritless, having

reviewed the issue regarding exhaustion of administrative remedies de novo, the Court concludes

that it would be error to dismiss Plaintiff’s ADA claim for failure to plead exhaustion of

administrative remedies or receipt of a right to sue letter. “Administrative exhaustion in the . . .

ADA context ‘is not a jurisdictional [prerequisite], but only a precondition to bringing [suit] . . .

that can be waived by the parties or the court.’” Anderson v. City of New York, No. 22-cv-3990, -

--F. Supp. 3d ----, 2024 WL 183103, at *6 n.6, 2024 U.S. Dist. LEXIS 8834, at *13 n.6

(S.D.N.Y. Jan. 17, 2024) (quoting Gomez v. N.Y.C. Police Dep’t, 191 F. Supp. 3d 293, 299

(S.D.N.Y. 2016)); see also Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 491 (2d Cir.

2018) (concluding the district court’s sua sponte dismissal of the plaintiff’s discrimination claims

“for failure to exhaust, or plead other facts that would relieve him of the obligation to file a

complaint with the EEOC,” was erroneous, explaining that “the burden of pleading and proving

Title VII exhaustion lies with defendants and operates as an affirmative defense.”).

Consequently, a Plaintiff’s failure to allege sufficient facts regarding exhaustion is not

necessarily fatal to Plaintiff’s claim.

However, Plaintiff’s claim remains insufficient in other ways. Plaintiff specifically

alleges a violation of 42 U.S.C. § 12112(b)(5)(A),2 (see Dkt. No. 1, at 7), which provides the

basis for a claim of failing to reasonably accommodate a disabled employee under the ADA. To

establish a prima facie case of disability discrimination in a reasonable accommodation case,

2 Plaintiff cites the statutory provision as “42 U.S.C. § 12112(5)(A),” (Dkt. No. 1, at 7), but it is clear from the text

that Plaintiff is referring to 42 U.S.C. § 12112(b)(5)(A).

“the plaintiff's burden requires a showing that (1) plaintiff is a person with a disability under the

meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with

reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and

(4) the employer has refused to make such accommodations.” Goonan v. Fed. Reserve Bank of

N.Y., 916 F. Supp. 2d 470, 478–79 (S.D.N.Y. 2013) (quoting Graves v. Finch Pruyn & Co., Inc.,

457 F.3d 181, 183–84 (2d Cir. 2006)).

Here, Plaintiff has not sufficiently alleged he is disabled within the meaning of the ADA.

For purposes of a reasonable accommodation claim, a disability under the ADA is defined as “a

physical or mental impairment that substantially limits one or more major life activities of such

individual” or “a record of such an impairment.” 42 U.S.C. § 12102(1)(A), (B).3 Plaintiff has

alleged that in 2015 he “was involved in a hit and run accident,” leaving him “with a concussion

and traumatic brain injury,” as well as “a progressive increase in [ADHD] symptoms associated

with the [PTSD] from the accident and lack of police professionalism, follow up and

transparency.” (Dkt. No. 1, ¶¶ 7–8). Plaintiff also alleges that he “developed an alcohol abuse

disorder,” and that this disorder, as well as his other ADHD and PTSD symptoms, worsened

around July 2018. (Id. ¶¶ 9–10). While Plaintiff has noted that he has several medical conditions,

he has not described how any substantially limits a major life activity and, except for his alcohol

abuse disorder, vaguely refers to ADHD and PTSD “symptoms” without explaining what those

symptoms are. (See id. ¶¶ 8–10). Absent facts regarding how a major life activity has been

substantially limited, Plaintiff cannot plead a disability under either prong (A) or prong (B). See

e.g., Rodriguez v. Verizon Telecom, No. 13-cv-6969, 2014 WL 6807834, at *3–5, 2014 U.S.

3 While the ADA also contains a third “regarded as” prong, see 42 U.S.C. § 12102(1)(C), “no failure to accommodate

claim can be made, as a matter of law, for an individual who was ‘regarded as’ disabled, rather than who was actually

disabled,” Graham v. Three Vill. Cent. Sch. Dist., No. 11-cv-5182, 2013 WL 5445736, at *11, 2013 U.S. Dist. LEXIS

143264, at *32 (E.D.N.Y. Sept. 30, 2013).

Dist. LEXIS 167833, *9–12 (S.D.N.Y. Dec. 3, 2014) (finding the plaintiff failed to plead his

alcohol and drug addictions constituted a disability or a record of disability under the ADA

because he did not allege any facts pertaining to how these conditions “substantially limit” or

“substantially limited a major life activity”).

Additionally, Plaintiff has not pled facts suggesting he was denied a reasonable

accommodation. “A reasonable accommodation is one that ‘enable[s] an individual with a

disability who is qualified to perform the essential functions of that position . . . [or] to enjoy

equal benefits and privileges of employment.’” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94

(2d Cir. 2015) (quoting 29 C.F.R. § 1630.2(o)(1)(ii), (iii)). Examples of reasonable

accommodations non-exclusively include “[m]aking existing facilities used by employees readily

accessible to and usable by individuals with disabilities” as well as “[j]ob restructuring; part-time

or modified work schedules; reassignment to a vacant position; acquisition or modifications of

equipment or devices; appropriate adjustment or modifications of examinations, training

materials, or policies; [and] the provision of qualified readers or interpreters.” 29 C.F.R. §

1630.2(o)(2)(i), (ii).

In this instance, Plaintiff states that “[i]ntentionally misclassifying Plaintiff as an

independent contractor was not making a reasonable accommodation.” (Dkt. No. 1, ¶ 47). But

Plaintiff provides no explanation of how being classified differently would allow him to

“perform the essential functions of [his] position” in a way he was otherwise unable to do or “to

enjoy equal benefits and privileges of employment” as other employees without disabilities. See

29 C.F.R. § 1630.2(o)(1)(ii), (iii); see also Ray v. Weit, 708 F. App’x 719, 721 (2d Cir. 2017)

(summary order) (affirming dismissal of “[a]ppellant’s failure to accommodate claims based on

her alleged asthma and podiatric problems because the accommodations that [a]ppellant sought

for these disabilities . . . had nothing to do with [a]ppellant’s ability to perform the essential

functions of her job or with the reason she was terminated.”). Also, while Plaintiff alleges he

requested a new contract, (id. ¶¶ 32, 41, 47), the Complaint does not allege that he ever asked his

employer to be ‘classified’ differently and instead implies the opposite, (see id. ¶ 47 (“Plaintiff’s

contract was essentially ended because he asked for a contract to be an independent contractor

for AES Medical Supply, LLC” (emphasis added).); see also Ray, 708 F. App’x at 721 (“It is

generally the employee’s responsibility to inform her employer that she needs an

accommodation.” (quoting Graves, 457 F.3d at 184); Jordan v. Forfeiture Support Assocs., 928

F. Supp. 2d 588, 609 (E.D.N.Y. 2013) (dismissing reasonable accommodation claim where

“[n]otably absent from plaintiff's [c]omplaint are any allegations that plaintiff requested a

reasonable accommodation or that [her employer] refused to make such an accommodation.”).

Accordingly, the Court adopts Magistrate Judge Stewart’s Report-Recommendation that

Plaintiff’s ADA claim should be dismissed with leave to amend.

3. Venue

In his Complaint, Plaintiff asserts that “[v]enue is proper in the Plattsburgh Division of

the United States District Court for the Northern District of New York, under 28 U.S.C. §

1391(b) and Local General Order 12 directing case assignment for the Northern District of New

York. Venue is also proper because Plaintiff resides in this district.” (Dkt. No. 1, at ¶ 6). In the

Report-Recommendation, Magistrate Judge Stewart stated that “[i]f the Court were to adopt the

Recommendation that the Complaint be dismissed with leave to replead, the Court should also

direct Plaintiff to address his pleadings regarding venue,” or alternatively, transfer the case to the

Western District of Texas (Dkt. No. 11, at 6, 7). This is because “the events at issue in this action

relate largely to work performed in Austin, Texas;” “[a]ll Defendants are alleged to be organized

or reside there,” and “[t]here is no apparent connection to this District other than the fact that

Plaintiff resides here” which “does not establish proper venue” by itself. (Id. at 7). In his

objections, Plaintiff responds that venue is proper because he “was working from home in Lake

Placid, New York,” and so “substantial parts of unlawful employment practices were properly

alleged to have occurred within this Northern District of New York.” (Dkt. No. 15, at 4).

FLSA claims are subject to the general venue provision. See Holmes v. Romeo Enters.,

LLC., No. 15-cv-3915, 2015 WL 10848308, at *2–3, 2015 U.S. Dist. LEXIS 178065, at *5

(S.D.N.Y. Nov. 2, 2015). The general venue provision allows for “[a] civil action [to be] brought

in . . . a judicial district in which a substantial part of the events or omissions giving rise to the

claim occurred.” 28 U.S.C. § 1391(b)(2). ADA claims are subject to special venue provisions,

which, as relevant here, allow for “an action [to be] brought in any judicial district in the State in

which the unlawful employment practice is alleged to have been committed” or “in the judicial

district in which the aggrieved person would have worked but for the alleged unlawful

employment practice.” 42 U.S.C. § 2000e-5(f)(3); see also 42 U.S.C. § 12117(a) (incorporating

Title VII of the Civil Rights Act’s special venue provisions). While Plaintiff’s Complaint did not

assert that the alleged violations of FLSA and the ADA occurred in the Northern District of New

York, Plaintiff’s assertion that he worked remotely would likely be sufficient to clarify the

appropriateness of the venue. See Hale v. Iancu, No. 19-cv-1963, 2021 WL 9405460, at *1–3,

2021 U.S. Dist. LEXIS 37058, at *1–10 (D. Conn. Feb. 23, 2021) (finding venue for Title VII

action proper in state where Plaintiff was working remotely when adverse employment action

was taken against him and where he averred that he would have worked but for the adverse

employment action); cf. Milner-Koonce v. Albany City Sch. Dist., No. 21-cv-1271, 2022 WL

2339443, at *5–6, 2022 U.S. Dist. LEXIS 114679, at *12–15 (N.D.N.Y. June 29, 2022)

(dismissing pro se plaintiff’s insufficiently alleged claim, but stating that she “may have a valid

claim” if “newly stated facts” contained in her objections (along with others) were to be

“incorporate[d] . . . into an amended complaint”). Thus, if Plaintiff files an amended complaint,

he is directed to include facts regarding his remote work as appropriate to establish venue.

B. Appeals of Magistrate Judge Decisions

Plaintiff also appeals the Magistrate Judge’s decisions to: (1) deny Plaintiff’s requests to

issue summonses; and (2) deny Plaintiff’s motion to waive PACER fees. (Dkt. Nos. 14, 16). The

Court finds that neither decision is “clearly erroneous or contrary to law.” See 28 U.S.C.

§ 636(b)(1)(A); Fed. R. Civ. P. 72(a).

1. Denial of Request to Issue Summonses

On January 23, 2024, Plaintiff filed a letter motion requesting the issuance of three

proposed summonses pursuant to Rule 4(b) of the Federal Rules of Civil Procedure. (Dkt. No. 5).

Plaintiff asserted that the summonses should be issued as the Complaint had been filed and “[t]he

summons [sic] have been properly completed and presented to this Court,” arguing that “[t]he

pending Motion for Leave in Forma Pauperis in this matter does not impact the issuance of a

summons.” (Id. at 1). In an Order entered on January 25, 2024 (“January Order”), Magistrate

Judge Stewart denied Plaintiff’s request as “premature” because the Court had not yet ruled on

Plaintiff’s motion for IFP status or completed “an initial review of the Complaint[] pursuant to

28 U.S.C. § 1915.” (Dkt. No. 6, at 3). Magistrate Judge Stewart explained that for purposes of

Rule 4(b), a complaint is considered filed “when IFP status is granted or the appropriate filing

fee is paid, rather than at the time a complaint is delivered to the clerk of a court.” (Id. (quoting

Truitt v. Cnty. Of Wayne, 148 F.3d 644, 648 (6th Cir. 1998)). Plaintiff appeals this decision on

the grounds that refusing to issue the summonses violates Rule 4 and constitutes unequal

treatment under the Fifth Amendment. (Dkt. No. 14, at 1–4).

Here, the Magistrate Judge correctly applied the law. Courts in the Second Circuit have

found that a “[p]laintiff’s action was not properly filed until this Court granted his IFP

application.” Perkins v. Napoli, No. 8-cv-6248, 2012 WL 5464607, at *3, 2012 U.S. Dist. LEXIS

160534, at *9 (W.D.N.Y. Nov. 8, 2012) (citing Romand v. Zimmerman, 881 F. Supp. 806, 809

(N.D.N.Y. 1995)). Therefore, as Plaintiff’s IFP application was still pending at the time Plaintiff

requested the issuance of the summonses and the filing fee had not been paid, Magistrate Judge

Stewart’s finding that Plaintiff’s Complaint had not yet been filed for purposes of Rule 4(b) was

neither clearly erroneous nor contrary to law. Furthermore, treating litigants differently based on

IFP status does not implicate a suspect class, and thus does not constitute a Fifth Amendment

violation. See Dicara v. Conn. Educ. Dep’t, No. 8-cv-627, 2008 WL 5083622, at *2, 2008 U.S.

Dist. LEXIS 96372, at *5 (D. Conn. Nov. 26, 2008) (“[P]overty is not a suspect classification for

the purposes of equal protection analysis.” (citations omitted)). Plaintiff’s appeal of the January

Order is therefore denied.

2. Denial of Motion to Waive PACER Fees

On February 28, 2024, Plaintiff filed a motion to waive PACER fees. (Dkt. No. 12).

Plaintiff asserted two arguments in support of his motion. First, Plaintiff argues that because

Magistrate Judge Stewart failed to include the docket number for a case cited in the January

Order as “Arroyo v. Georgia, 2023 WL 4539770, at *4 (N.D. Ga. May 30, 2023[)],” Plaintiff had

to “search[] for an unknown docket number . . . accruing fees in the process.” (Id. at 1–2

(quoting Dkt. No. 6, at 3)). Second, Plaintiff argued that his PACER fees should be waived due

to his indigence, noting that his IFP application had been granted on February 20, 2024. (Id. at

2–3 (citing Dkt. No. 9)). On March 6, 2024, Magistrate Judge Stewart issued a text order

denying Plaintiff’s motion. (Dkt. No. 13 (“Text Order denying . . . Motion to Waive PACER

Fees.”)). Plaintiff appeals the Magistrate Judge’s denial of his motion on the basis that he has

shown good cause to waive PACER fees and that the text order, issued without further

explanation, was “not appropriate” and “has created the appearance that the Magistrate Judge

will not provide rights to the poor.” (Dkt. No. 16, at 2–4).

As Plaintiff himself is aware, (see id. at 1), a Magistrate Judge is not required to issue a

written order when ruling on nondispositive matters, Fed. R. Civ. P. 72(a) (“When a pretrial

matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and

decide, the magistrate judge must promptly conduct the required proceedings and, when

appropriate, issue a written order stating the decision.”) (emphasis added).

Moreover, the decision itself is not clearly erroneous or contrary to law. PACER provides

for “four automatic fee exemptions.” In re Club Ventures Investments LLC, 507 B.R. 91, 99

(S.D.N.Y. 2014) (citation omitted); see also Options to Access Records If You Cannot Afford

PACER Fees, https://pacer.uscourts.gov/my-account-billing/billing/options-access-records-if-

you-cannot-afford-pacer-fees (last accessed Apr. 4, 2024) (allowing users to “access $30 or less

worth of court records within a quarterly billing cycle,” as well as court opinions for free). “[A]

party seeking a discretionary exemption cannot rely on his in forma pauperis status alone. The

party must demonstrate that an exemption beyond the four automatic exemptions ‘is necessary . .

. to avoid unreasonable burdens and to promote public access to information.’” In re Club

Ventures Investments LLC, 507 B.R. at 99 (citation omitted). As Plaintiff failed to explain why

the automatic exemptions are not sufficient for his purposes, the Court finds Magistrate Judge

Stewart’s denial of Plaintiff’s motion for a waiver of PACER fees was neither clearly erroneous

nor contrary to law and is therefore affirmed. See Oliva v. Brockwood Coram I, LLC, No. 14-cv-

2513, 2015 WL 1966357, at *2, 2015 U.S. Dist. LEXIS 57215, at *3–4 (E.D.N.Y. Apr. 30,

2015) (“Because [the plaintiff] does not explain how that level of access is insufficient for his

purposes, he falls short of establishing that the regular usage fee constitutes an unreasonable

burden.”). Plaintiff’s appeal is therefore denied.

IV. CONCLUSION

For these reasons, it is hereby

ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 11) is

ADOPTED; and it is further;

ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED with leave to amend;

and it is further;

ORDERED that any amended complaint must be filed within thirty (30) days of the

date of this Order. Any amended complaint must be a complete pleading which will replace the

current complaint in total; and it is further;

ORDERED that if Plaintiff files a timely amended complaint, it shall be referred to

Magistrate Judge Stewart for review; and if Plaintiff fails to file a timely amended complaint, the

Clerk is directed to close this case; and it is further;

ORDERED that if Plaintiff files a timely amended complaint, it should contain facts

regarding his remote work as appropriate to establish venue; and it is further;

ORDERED that Plaintiff’s appeal (Dkt. No. 14) of the January Order (Dkt. No. 6) is

DENIED in its entirety; and it is further;

ORDERED that Plaintiff’s appeal (Dkt. No. 16) of the order denying a waiver of

PACER fees (Dkt. No. 13) is DENIED in its entirety; and it is further;

ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the

Local Rules.

IT IS SO ORDERED.

Dated: April 17, 2024

Syracuse, New York

Brenda K. Sannes

Chief U.S. District Judge

15