Zurita v. Bergen Pizza Incorporated et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the enclosed Order, the court finds no clear error and hereby affirms and adopts Judge Go's Report and Recommendation in its entirety as the opinion of the court. Accordin gly, the court strikes defendants' answers and respectfully directs the Clerk of the Court to enter default, serve a copy of this order upon pro se defendants at their respective addresses of record on the docket, and note service on the docket. Plaintiff shall file and serve on defendants his motion for entry of a default judgment no later than April 13, 2015. Defendants shall serve and file any opposing papers two weeks thereafter, or by April 27, 2015. If defendants fail to file an opposition by April 27, 2015, plaintiff's motion for entry of a default judgment will be deemed unopposed.Ordered by Judge Kiyo A. Matsumoto on 4/2/2015. (Alagesan, Deepa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
LUIS ZURITA,
ORDER ADOPTING REPORT
AND RECOMMENDATION
Plaintiff,
-against-

13-CV-1846 (KAM)(LB)

BERGEN PIZZA INCORPORATED, CONSTANTINO
MOYAO RODRIGUEZ, and any other
entities affiliated with or controlled
by BERGEN PIZZA INCORPORATED and/or
CONSTANTINO MOYAO RODRIGUEZ,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
On August 3, 2012, plaintiff Luis Zurita filed the
instant action against defendants Bergen Pizza Incorporated
(“Bergen Pizza”) and Constantino Moyao Rodriguez, alleging
failure to pay the minimum wage, overtime wages, or spread of
hour premium in violation of the Fair Labor Standards Act
(“FLSA”) and the New York Labor Law. (See ECF No. 1, Compl.
filed 4/2/13.)
On March 5, 2015, Judge Go issued a Report and
Recommendation recommending that the court strike defendants’
answers and enter default against both defendants. (ECF No. 28,
Report and Recommendation dated 3/5/15 (“R&R”).)

The R&R

concluded that the court should strike defendants’ answers and
enter default because (1) Bergen Pizza’s counsel withdrew on May

21, 2013 (see ECF No. 17) and no counsel has entered an
appearance on behalf of Bergen Pizza since that date, and (2)
Mr. Rodriguez has failed to attend numerous scheduled
conferences since withdrawal of his counsel, despite repeated
warnings by the court that continued failure to appear would
result in default being entered against him, and he has not
communicated with the court or plaintiff’s counsel since July
2014. (See R&R at 2-6.)

The R&R also informed the parties that

any objections to the report must be filed within fourteen days
of receipt of the report, or by March 25, 2015. (See R&R at 3
(citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2)).)
The statutory 14-day period for filing objections has expired
and no objections, or requests for extensions of time to file
objections, have been filed to date. (See generally Docket No.
12-cv-3874.)
A district court reviews those portions of a Report
and Recommendation to which a party has timely objected under a
de novo standard of review and “may accept, reject, or modify,
in whole or in part, the findings or recommendations . . .”

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U.S.C. § 636(b)(1)(C). However, where no objections to the
Report and Recommendation have been filed, the district court
“need only satisfy itself that that there is no clear error on
the face of the record.” Urena v. New York, 160 F. Supp. 2d 606,

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609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp.
1186, 1189 (S.D.N.Y. 1985)).
Upon a careful review of the record and Judge Go’s
well-reasoned Report and Recommendation, the court finds no
clear error and hereby affirms and adopts the Report and
Recommendation in its entirety as the opinion of the court.

In

adopting the Report and Recommendation, the court agrees with
Judge Go’s application of the factors to be considered when
considering Rule 37(b) sanctions and, while mindful of
defendants’ pro se status, finds that lesser sanctions would not
be effective given that (1) defendants have willfully ignored
Judge Go’s orders by failing to attend numerous scheduled
conferences despite being given opportunities to reschedule; (2)
defendants were repeatedly warned that failure to comply with
Judge Go’s orders could result in an entry of default; and (3)
the duration of defendants’ non-compliance, starting with Judge
Go’s May 21, 2013 order directing that the defendant corporation
could not appear pro se, and Mr. Rodriguez’s failure to appear
at five court conferences in 2013 and 2014.

See Agiwal v. Mid

Island Mortgage Corp., 555 F.3d 298, 302-303 (2d Cir. 2009).

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Accordingly, the court strikes defendants’ answers and
respectfully directs the Clerk of the Court to enter default,
serve a copy of this order upon pro se defendants at their
respective addresses of record on the docket, and note service
on the docket.

Plaintiff should submit his motion for entry of

a default judgment no later than April 13, 2015, on notice to
defendants.

Defendants shall serve and file any opposing papers

two weeks thereafter, or by April 27, 2015.

If defendants fail

to file an opposition by April 27, 2015, plaintiff’s motion for
entry of a default judgment will be deemed unopposed.
SO ORDERED.
Dated:

April 2, 2014
Brooklyn, New York
______
/s/
Kiyo A. Matsumoto
United States District Judge

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