Santillan v. Custom Stainless Steep Corp. et al

Filing 18

MEMORANDUM and ORDER ADOPTING REPORT AND RECOMMENDATIONS: See attached memorandum and order for details. There will be no formal memorandum and order mailed to counsel. The Clerk shallenter judgment. Ordered by Senior Judge Frederic Block on 9/30/2011. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JUAN JOSE SANTILLAN, individually and on
behalf of others similarly situated,
MEMORANDUM AND ORDER
Case No. 10-CV-3128 (FB) (MDG)

Plaintiff,
-againstWALTER HENAO and CUSTOM STAINLESS
STEEL CORP. doing business as CENTER’S
RESTAURANT EQUPIMENT,
Defendants.
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Appearances:
For the Plaintiff:
MICHAEL A. FAILLACE, ESQ.
Michael Faillace & Associates, P.C.
110 East 59th Street
32nd Floor
New York, NY 10022
BLOCK, Senior District Judge:

On September 12, 2011, Magistrate Judge Go issued a Report and
Recommendation (“R&R”) recommending that the Court award default judgment against
defendants in the total amount of $60,193.42, consisting of $44,242.94 in damages for
unpaid overtime wages, spread of hours pay and liquidated damages under the FLSA and
Labor Law, $7,734 in prejudgment interest up to September 30, 2011 and at a daily rate of
$4.81 per day until entry of judgment, $7,770 in attorneys’ fees and $440 in costs. See R&R
at 27. The R&R also stated that defendants’ failure to object by September 29, 2011 would
preclude appellate review. See id. All parties received notice of the R&R, electronically or
by regular mail, on the date it was filed. See id.
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If clear notice has been given of the consequences of failure to object, and
there are no objections, the Court may adopt the R&R without de novo review. See Mario
v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice
of the consequences, failure timely to object to a magistrate’s report and recommendation
operates as a waiver of further judicial review of the magistrate’s decision.”). The Court
will excuse the failure to object and conduct de novo review if it appears that the magistrate
judge may have committed plain error, see Spence v. Superintendent, Great Meadow Corr.
Facility, 219 F.3d 162, 174 (2d Cir. 2000); no such error appears here. Accordingly, the Court
adopts the R&R without de novo review and directs the Clerk to enter judgment in
accordance with the R&R.

SO ORDERED.
_________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, NY
September 30, 2011

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