Maltese v. Heastie et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARYANN MALTESE,
Plaintiff,
v.
CARL HEASTIE, KATHY HOCHUL,
RICHARD SCHAFFER and FRANK WU,
Defendants.
1:24-cv-1175 (BKS/ML)
Appearances:
Plaintiff pro se:
MaryAnn Maltese
East Northport, New York 11731
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
On September 25, 2024, this action filed by Plaintiff MaryAnne Maltese pro se in the
Southern District of New York was transferred to this Court. (Dkt. Nos. 1, 9). The case was
assigned to the undersigned and to United States Magistrate Judge Miroslav Lovric, and Plaintiff
paid the filing fee on November 13, 2024. On December 2, 2024, the Court issued summons and
directed Plaintiff to serve the summons. (Dkt. Nos. 16, 17). The Court also issued its General
Order 25. (Dkt. No. 15). Plaintiff, however, failed to properly serve the summons and complaint
on each defendant in accord with Fed. R. Civ. P. 4 and General Order 25. (Dkt. Nos. 23, 50). On
February 4, 2025, Magistrate Judge Lovric issued a text order notifying Plaintiff that failure to
comply with the Court’s orders, and failure to serve the summons, complaint and General Order
25 in accord with Fed. R. Civ. P. 4 and General Order 25 “may result in dismissal of the action
for failure to prosecute.” (Dkt. No. 50). On March 27, 2025, Magistrate Lovric issued a text
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order noting that Plaintiff had still failed to comply with General Order 25 and the Court’s orders
regarding service of process. (Dkt. No. 54). Magistrate Judge Lovric ordered Plaintiff to show
cause by April 17, 2025 why this matter should not be dismissed for failure to prosecute and
failure to properly complete service. (Id.). Plaintiff did not provide any meaningful response to
the Order to show cause, and Magistrate Judge Lovric issued three subsequent text orders
notifying Plaintiff that the failure to properly complete service or comply with Court orders may
result in dismissal of this case. (Dkt. No. 56, 58, 60). Plaintiff did not properly complete service
or provide any meaningful response to these text orders.
On September 11, 2025, Magistrate Judge Lovric issued a Report and Recommendation,
recommending that Plaintiff’s complaint be dismissed in its entirety, pursuant to Fed. R. Civ. P.
4 (m) based on her failure to complete service of process or, in the alternative, for failure to
comply with court orders and to prosecute pursuant to Fed. R. Civ. P. 41(b). (Dkt. No. 61).
Magistrate Judge Lovric informed Plaintiff that she had fourteen days within which to file
written objections to the report under 28 U.S.C. § 636(b)(1), and that the failure to object to the
report within fourteen days would preclude appellate review. (Id. at 11). No objections to the
Report-Recommendation have been filed.
As no objections to the Report and Recommendation have been filed, and the time for
filing objections has expired, the Court reviews the Report and Recommendation for clear error.
See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b)
advisory committee’s note to 1983 amendment. Having reviewed the Report and
Recommendation for clear error, the Court notes that the applicable deadline under Fed. R. Civ.
P. 4(m) for service is 90 days, not 120 days as stated in the Report and Recommendation. (Dkt.
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No. 61, at 5). This however, does not change the analysis. Having found no clear error with
respect to the recommendation, the Court adopts the recommendation.
For these reasons, it is hereby
ORDERED that the recommendation in the Report and Recommendation (Dkt. No. 61)
is ADOPTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED without prejudice,
pursuant to Fed. R. Civ. P. 4 (m) based on Plaintiff’s failure to complete service of process and
also under Fed. R. Civ. P. 41(b) for Plaintiff’s failure to comply with court orders; and it is
further
ORDERED that the Clerk is directed to close this case, enter judgment accordingly, and
serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: November 10, 2025
Syracuse, New York
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