No. 06-5393-cv
Fielding v. Tollaksen
                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                           August Term, 2007

(Argued: November 7, 2007                                                Decided: December 12, 2007)

                                          Docket No. 06-5393-cv

MARIA FIELDING ,

                  Plaintiff-Appellant,

                  -v.-

JEFFREY TOLLAKSEN , MYRNA COHEN , VINCENT M. BOYD , New York State Police Investigator,
STEVEN JOHNSTONE, New York State Trooper, PETER LUNGEN , District Attorney, JOEY
DRILLINGS, Assistant District Attorney, MICHAEL MC GUIRE, Assistant District Attorney, ROBERT
ZANGLA, Assistant District Attorney, IVAN KALTER, Fallsburg Town Court Judge, JUDGE BART
RASNIK , Fallsburg Town Court Judge, JUDGE JOEL W. WELSH , Mamakating Town Court Judge,

                  Defendants-Appellees.

Before: CABRANES, SACK , KATZMANN , Circuit Judges.

         Plaintiff appeals from an order of the United States District Court for the Southern District

of New York (Stephen C. Robinson, Judge) adopting a magistrate judge’s Report and

Recommendation and entering final judgment in favor of defendants on plaintiff’s 42 U.S.C. § 1983

complaint. We conclude that, because the District Court implicitly overruled plaintiff’s Rule 72(a)

objections to the magistrate judge’s earlier order, which denied plaintiff leave to amend her

complaint, we have jurisdiction to review the order denying the motion to amend. We conclude that

it was not error for the magistrate judge to deny plaintiff’s motion to amend her complaint.

         Affirmed.


                                                        MARIA FIELDING , pro se, Fallsburg, NY, for
                                                        Plaintiff-Appellant.

                                                   1
                                                                  ROBERT M. SPADARO , New York, NY, for
                                                                  Defendants-Appellees Tollaksen and Cohen.

                                                                  DONALD P. DELANEY , White Plains, NY, for
                                                                  Defendants-Appellees Boyd and Johnstone.

                                                                  CHERYL MC CAUSLAND , (Samuel S. Yasgur on
                                                                  brief) Barryville, NY, for Defendants-Appellees
                                                                  Lungren, Drillings, McGuire, and Zangla.

                                                                  BRUCE A. TORINO , Mineola, NY, for
                                                                  Defendants-Appellees Kalter and Rasnik.

                                                                  RICHARD STOLOFF, Monticello, NY, for
                                                                  Defendant-Appellee Welsh.

JOSÉ A. CABRANES, Circuit Judge:

         Plaintiff-appellant Maria Fielding (“plaintiff”) appeals pro se from an October 25, 2006 order

and judgment entered by the United States District Court for the Southern District of New York

(Stephen C. Robinson, Judge) adopting the March 3, 2006 Report and Recommendation (“R & R”)

of United States Magistrate Judge George A. Yanthis to dismiss plaintiff’s suit and to grant

defendants’ motion for summary judgment.1 During the course of proceedings before the

magistrate judge, plaintiff moved for leave to amend her complaint. Magistrate Judge Yanthis

                                                 denied the motion to amend as futile in an order entered the

same day that he filed the R & R on defendants’ dispositive motions. Pursuant to Federal Rule of

Civil Procedure 72(a),2 plaintiff filed an objection to the magistrate judge’s order denying her motion


         1
           The R & R addressed three separate motions for summary judgment and two motions to dismiss brought by
various defendants. Motions for summary judgment were filed by (1) defendants Kalter and Rasnick; (2) defendant
Welsh; and (3) defendants Tollaksen and Cohen. The two motions to dismiss were filed by (1) defendants Boyd and
Johnstone; and (2) defendants Lungen, Drillings, McGuire, and Zangla. [A. 14] The District Court, in adopting the R &
R, granted each of the motions and subsequently entered a judgment against plaintiff.

         2
             Federal Rule of Civil Procedure 72(a) states:

                    A magistrate judge to whom a pretrial matter not dispositive of a claim or defense
                    of a party is referred to hear and determine shall promptly conduct such

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to amend. In a separate filing, plaintiff also objected to the magistrate judge’s R & R. Judge

Robinson did not explicitly rule on plaintiff’s Rule 72(a) objection to the magistrate judge’s order

denying leave to amend before he granted defendants’ motions and entered judgment for defendants

pursuant to the R & R. In a separate summary order filed today, we affirm the judgment entered by

Judge Robinson and dispose of most of the issues presented on appeal. We write here solely to

address the question of whether a district court’s dismissal of an action without expressly ruling on a

pending objection filed pursuant to Rule 72(a) serves as an order overruling that objection.



                                                         I.

         Following a protracted landlord-tenant dispute that played out in several venues, including

two state courts, and involved plaintiff’s arrest on criminal charges that were later dismissed, plaintiff

filed an action for malicious prosecution and abuse of process pursuant to 42 U.S.C. § 1983 against

her landlords, Jeffrey Tollaksen and Myrna Cohen (collectively, “the landlords” or “private-citizen

defendants”), and the government actors involved in her arrest and aborted prosecution: New York

State Police Investigator Vincent M. Boyd; New York State Trooper Steven Johnstone; District

Attorney of Sullivan County Peter Lungen; Assistant District Attorneys Joey Drillings, Michael

McGuire, and Robert Zangla; Fallsburg Town Court Judges Ivan Kalter and Bart Rasnik; and

Mamakating Town Court Judge Joel W. Welsh (collectively, “government defendants”). Plaintiff


                proceedings as are required and when appropriate enter into the record a written
                order setting forth the disposition of the matter. Within 10 days after being served
                with a copy of the magistrate judge’s order, a party may serve and file objections to
                the order; a party may not thereafter assign as error a defect in the magistrate
                judge’s order to which objection was not timely made. The district judge to whom
                the case is assigned shall consider such objections and shall modify or set aside any
                portion of the magistrate judge’s order found to be clearly erroneous or contrary to
                law.




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sought compensatory and punitive damages and a declaratory judgment that defendants had violated

her constitutional rights. We recount here only those aspects of the record that are pertinent to the

disposition of the issue before us.



                                                   II.

        Beginning on February 1, 2000, plaintiff rented an apartment owned by the landlords in the

town of Fallsburg, New York. On February 17, 2003, she complained to the landlords about a

broken water heater. On March 1, 2003, with the water heater still not fixed, she gave thirty days’

notice that she would vacate the apartment. Three days later, she complained in writing to the

landlords about broken concrete steps leading to her apartment. Six days thereafter, plaintiff called

the municipal building inspector to complain about the water heater and the steps. After the

inspection, the municipal inspector called the landlords to demand that they fix the problems. On

March 21, 2003, a plumber apparently called by the landlords determined that the heater had failed

due to a manufacturer’s defect and replaced the heater. When plaintiff vacated the apartment on

March 31, 2003, she demanded her security deposit from the landlords; according to plaintiff, the

latter did not respond. When plaintiff complained to the New York State Attorney General’s office

about the landlords’ failure to return her security deposit, that office sent her a copy of a letter from

the landlords alleging that it was she who had damaged their property.

        On March 31, 2004, plaintiff filed suit in small claims court against the landlords for the

return of her security deposit. The case was assigned at first to defendant Judge Ivan Kalter.

However, Judge Kalter recused himself because his former partner had represented plaintiff,

whereupon the case was re-assigned to defendant Judge Bart Rasnik. The landlords interposed a

counterclaim for property damage allegedly caused by plaintiff.


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        In August 2004, the landlords went to the Sullivan County District Attorney’s office to seek

an order of protection against plaintiff. In depositions signed by each of the landlords on August

14, 2004, the landlords stated that they believed plaintiff caused the damage to the water heater and

concrete steps, and that she had physically and verbally abused them when they confronted her.

Based on these depositions, defendant New York State police officers Boyd and Johnstone arrested

plaintiff, and she was arraigned on two felony counts of criminal mischief. Judge Rasnik recused

himself from both the criminal and small claims actions after plaintiff filed a Notice of Judicial

Misconduct making him an interested party. The criminal and civil cases were then consolidated and

assigned to a Town Judge, defendant Judge Joel W. Welsh.

        Plaintiff moved for dismissal of the criminal charges on November 29, 2004. On December

21, 2004, the District Attorney’s Office dropped one of the felony charges and reduced the other

felony charge to criminal mischief in the fourth degree, a misdemeanor. On February 2, 2005,

defendant Assistant District Attorney Robert Zangla moved to dismiss the pending information.

Judge Welsh granted the motion and dismissed the criminal case.

        In the small claims action, Judge Welsh on March 3, 2005 entered a default judgment in

favor of plaintiff for her security deposit and dismissed the landlords’ counterclaim without

prejudice. The record does not reflect further proceedings in the small claims action.



                                                  III.

        Plaintiff filed the instant action in the United States District Court for the Southern District

of New York on March 7, 2005. On June 7, 2005, she moved for leave to amend her complaint to

add Sullivan County and the towns of Fallsburg and Mamakating as defendants. The case was

subsequently referred to Magistrate Judge Yanthis for disposition of plaintiff’s motion to amend as


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well as motions for summary judgment and motions to dismiss filed by defendants. On March 3,

2006, Magistrate Judge Yanthis filed an R & R on defendants’ motions. On the same day, in a

separately filed order, he denied the motion to amend, having concluded, based on Advanced

Magnetics, Inc. v. Bayfront Partners, Inc., 

(2d Cir. 1997), that the proposed amendment

would be “futile” because plaintiff had failed to state a cause of action against the municipalities. See

Advanced 

(“Leave to amend need not be granted . . . where the proposed

amendment would be futile.”) (internal citation and quotation marks omitted). Plaintiff timely

objected, pursuant to Federal Rule of Civil Procedure 72(a), to the magistrate judge’s order denying

her motion to amend.

        Without explicitly ruling on plaintiff’s Rule 72(a) objection, Judge Robinson on October 25,

2006, acting on the basis of the R & R, granted summary judgment to certain of the defendants and

dismissed plaintiff’s action against the other defendants, see note 1, ante. Concluding that the

government defendants acted with probable cause and that their actions were protected by either

absolute or qualified immunity, Judge Robinson granted their motions for summary judgment and

motions to dismiss. Judge Robinson found that the landlords were private-citizen defendants and

did not act under color of state law and thus were not subject to liability under 42 U.S.C. § 1983.

Accordingly, Judge Robinson entered an order granting summary judgment to the landlords.

Judgment was entered against plaintiff on October 27, 2006. This appeal followed.



                                                   IV

        As a matter of case management, a district judge may refer nondispositive motions, such as a

motion to amend the complaint, to a magistrate judge for decision without the parties’ consent. 28

U.S.C. § 636; Fed. R. Civ. P. 72(a). Under Rule 72(a), a party may object to the magistrate judge’s


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order within ten days of being served with a copy. 

also provides that “[t]he district

judge to whom the case is assigned shall consider such objections and shall modify or set aside any

portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” 

have not previously spoken on this issue, other circuits have concluded that a

district judge’s entry of judgment without ruling on a motion or argument is tantamount to an denial

or rejection of that motion or argument. See, e.g., Alpine View Co. v. Atlas Copco AB, 

,

220 (5th Cir. 2000) (interpreting “lack of an explicit statement” on Rule 72(a) objections as “refusal

to overrule the magistrate judge’s order”); Miller v. Auto. Club of New Mexico, Inc., 

, 1118

(10th Cir. 2005) (“Given the court’s denial of [plaintiff’s] motion for sanctions in conjunction with

its subsequent order granting [defendant] summary judgment on a number of the claims implicated

by her discovery requests, we conclude the district court’s silence on [plaintiff’s] motion to compel

was a conscious and implicit denial of her discovery requests and a refusal to overrule the magistrate

judge’s order.”); Hill v. SmithKline Beecham Corp., 

, 1116 (10th Cir. 2004) (concluding

that “the district court’s failure to address [a party’s] arguments may be properly construed as an

implicit denial of those arguments”).

        In Alpine View, the district court adopted a magistrate judge’s report and recommendation,

dismissing the plaintiffs’ suit without explicitly addressing the plaintiffs’ Rule 72(a) objections to an

earlier order of the magistrate 

. The Fifth Circuit concluded that it had

jurisdiction to review the earlier order despite the absence of an explicit statement on the issue by

the district judge. 

As the Fifth Circuit explained, because the record on appeal indicated

that the plaintiffs had presented their Rule 72(a) objections to the district court, “the district court’s

determination to adopt the magistrate judge’s dismissal recommendation” could be reasonably

interpreted as overruling those objections. 

approach comports with our own observation that “[w]hen a district court enters a final

judgment in a case, interlocutory orders rendered in the case typically merge with the judgment for

purposes of appellate review.” Shannon v. Gen. Elec. Co., 

, 192 (2d Cir. 1999); see also15A

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3905.1, at

250 (2d ed. 1992) (noting the “general rule that appeal from final judgment opens the record and

permits review of all rulings that led up to the judgment”). Accordingly, we hold that, when a

district judge enters an order disposing of a case without expressly ruling on a pending objection

filed pursuant to Federal Rule of Civil Procedure 72(a), the judgment entered pursuant to that order

functions as a final order overruling the objection.

        In the instant case, appellant filed timely objections to the magistrate judge’s ruling, and the

district judge, without ruling on her objections, explicitly adopted the R & R of the magistrate judge,

thereby dismissing the suit altogether. For the reasons set forth above, we conclude that we have

jurisdiction to review Magistrate Judge Yanthis’s order denying plaintiff’s motion to amend her

complaint. The magistrate judge’s order denying plaintiff’s motion for leave to amend, which was

implicitly adopted by Judge Robinson, was soundly reasoned and certainly not an abuse of

discretion. See Nettis v. Levitt, 

, 192 (2d Cir. 2001) (“We review only for abuse of

discretion a district court’s decision to permit or deny leave to amend a complaint.”) overruled on other

grounds by Slayton v. American Express Co., 

, 226 (2d Cir. 2006). Accordingly, we affirm.



                                           CONCLUSION

        Judge Robinson effectively denied plaintiff’s motion for leave to amend her complaint when

he adopted Magistrate Judge Yanthis’s Report and Recommendation proposing dismissal of the

action and entered final judgment in favor of defendants. We affirm.


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