Idrovo v. Mission Design and Management , Inc. et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Ordered by Judge Sandra L. Townes on 4/17/2012. (Siegfried, Evan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MARCOS IDROVO, on behalf of himself and
others similarly situated,
Plaintiff,

MEMORANDUM AND ORDER

-against10-CV-4188 (SLT) (RLM)
MISSION DESIGN AND MANAGEMENT, INC.,
JOHN SHIN, JOHN DOE a/k/a KEVIN, and
JOHN DOE a/k/a MR. CHOO,
Defendants.

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TOWNES, United States District Judge:

In mid-September 2010, plaintiff Marcos Idrovo commenced this action pursuant to the
Fair Labor Standards Act, 29 U.S.C. §§201 et seq. (the "FLSA"), Title VII of the Civil Rights
Act of 1964 ("Title VII"), and state Jaw seeking relief both for himself and for other employees
of defendant Mission Design and Management, Inc. ("Mission Design"). The Milman Labuda
Law Group PLLC ("MLLG") appeared as counsel for defendants in late November 2010 and
represented them before this Court for appro]{imately one year thereafter. However, on
December 7, 2011, MLLG requested permission to be relieved as counsel, asserting that
defendants had failed to communicate with MLLG about the defense of their case since May
2011 and had failed to pay the Jaw firm. See Letter to Hon. Roanne L. Mann, U.S.M.J., from
Joseph M. Labuda, Esq., dated Dec. 7, 2011, at I.
In response to MLLG's Jetter, Magistrate Judge Mann scheduled a conference for
December 22, 20 II. Her endorsed scheduling order not only directed Mission Design and its
principal, defendant John Shin, to appear at the conference, but also warned the defendants that

sanctions- including a default judgment- might be entered if they failed to appear. Despite this
warning, defendants did not appear.
When defendants failed to appear as directed, Judge Mann granted MLLG's motion to be
relieved and issued a written order directing defendants to show cause, in a writing filed by
January 6, 2012, why a default judgment should not be entered against them. Although the
docket sheet reflects that Judge Mann sent the order to show cause via overnight mail to
defendants at their last known address, the orders were returned as undeliverable. No response to
the order to show cause was received and neither defendant has been heard from since.
On March I, 2012, Judge Mann issued a report and recommendation (the "R&R"),
recommending that defendants' answer be stricken and that their defaults be entered. In that
R&R, Judge Mann noted that defendants appeared to have "abandoned their defense of this
litigation" and to be "unwilling to comply with court orders." R&R at 2. Judge Mann directed
the Clerk of Court to enter the R&R on the Court's Electronic Case Filing System ("ECF") and
to mail copies to the defendants' last known addresses. !d. In addition, the R&R expressly
advised the defendants that objections to the R&R had to be filed by March 19, 2012, and that
failure to file timely objections might result in a waiver of the right to appeal any order adopting
theR&R. Jd
Pursuant to Judge Mann's directive, the Clerk of Court mailed copies of the R&R to
defendants' last known addresses. However, these mailings -like those containing copies of
Judge Mann's order to show cause- were returned as undeliverable. Although the R&R was
uploaded onto ECF on March 1, 2012, where it been available for viewing using computer

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terminals accessible in the Clerk's Office ever since, no objections have yet been received from
defendants.
A district court is not required to review the factual or legal conclusions of the magistrate
judge as to those portions of a report and recommendation to which no objections are addressed.

See Thomas v. Arn, 474 U.S. 140, 150 (1985). However, even when no objections are filed,
many courts seek to satisfy themselves "that there is no clear error on the face ofthe record."
Fed. R. Civ. P. 72(b) advisory committee note (1983 Addition); see also Edwards v. Town of

Huntington, No. 05 Civ. 339 (NGG) (AKT), 2007 WL 2027913, at *2 (E.D.N.Y. July 11, 2007).
Having reviewed the R&R, and finding no clear error, the Court adopts the R&R in its entirety as
the opinion of the Court pursuant to 28 U.S.C. § 636(b)(J).
CONCLUSION
For the reasons stated above, Magistrate Judge Mann's report and recommendation dated
March I, 2012, is adopted in its entirety. Defendants' answer is stricken and their defaults are
hereby entered. Plaintiff shall move for a default judgment pursuant to Fed. R. Civ. P. 55(b) on
or before May 18, 2012.

SO ORDERED.

s/ SLT
/

Dated: Aprill7, 2012
Brooklyn, New York

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SANDRA L. TOWNES - 1...
United States District Judge