Commercial Litigation and Arbitration

Standards of Review of Magistrate Judge Reports and Recommendations — Impact of Specific Objections — New Evidence Requires Compelling Justification

Fischer v. Forrest, 2018 U.S. Dist. LEXIS 25923 (S.D.N.Y. Feb. 16, 2018):

A. Reports and Recommendations

After a magistrate judge has issued a Report and Recommendation, 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). To accept the portions of a report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Acevedo v. Lempke, No. 10 Civ. 5285 (PAE) (HBP), 2014 U.S. Dist. LEXIS 132000, 2014 WL 4651904, at *3 (S.D.N.Y. Sept. 17, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 U.S. Dist. LEXIS 58771, 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)). When a timely and specific objection has been made, the court is obligated to review the contested issues de novo. See id.; Fed. R. Civ. P. 72(b)(3); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). But when the objections simply reiterate previous arguments or make only conclusory statements, the court should review the Report and Recommendation for clear error. Dickerson v. Conway, No. 08 Civ. 8024 (PAE) (FM), 2013 U.S. Dist. LEXIS 89179, 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013); see also Kirk v. Burge, 646 F. Supp. 2d 534, 538 (S.D.N.Y. 2009) (collecting cases). Further, "[c]ourts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation." Tavares v. City of New York, No. 08 Civ. 3782 (PAE), 2011 U.S. Dist. LEXIS 135390, 2011 WL 5877548, at *2 (S.D.N.Y. Nov. 23, 2011); see also Pan Am. World Airways v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n.3 (2d Cir. 1990) ("A district judge is not required to hear or rehear any witness, and Pan Am had no right to present further testimony when it offered no justification for not offering the testimony at the hearing before the magistrate.").


These objections fail. Fischer's objection rests almost entirely on the LinkedIn page. Fischer, however, never adduced that page in evidence in connection [*17]  with briefing on summary judgment, despite being aware that Defendants had offered Twete's affidavit into evidence. (Indeed, Fischer did not take Twete's deposition or object to receipt of her affidavit until after Judge Peck's Report had issued.) It is, however, well settled that "[c]ourts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation." Tavares, 2011 U.S. Dist. LEXIS 135390, 2011 WL 5877548, at *2. The submission of new evidence following such a Report is merited only in rare cases, where the party objecting to a Report has offered "a most compelling reason" for the late production of such evidence, Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 438 (S.D.N.Y. 2005), or a "compelling justification for [its] failure to present such evidence to the magistrate judge," Thomas v. Comm'r of Soc. Sec., No. 16 CV 9247-LTS-KHP, 2017 U.S. Dist. LEXIS 128082, 2017 WL 3475064, at *1 (S.D.N.Y. Aug. 11, 2017) (quoting Berbick v. Precinct 42, 977 F. Supp. 2d 268, 273 (S.D.N.Y. 2013)). Here, Fischer has not offered any such justification.

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