Zurita v. Bergen Pizza Incorporated et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATION. Upon careful consideration of the record and Judge Go's thorough and 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. Plaintiff is awarded minimum wages of $21,160.44; overtime wages of $12,687.56; spread of hours pay of $3,552.50; liquidated damages under the FLSA of 33,848.00; liquidated damages under th e New York Labor Law of $1,154.56; attorneys' fees of $20,230.47 and costs of $875.68; minus a $7,000 offset for amounts defendants paid to plaintiff before defendants breached the settlement agreement. Accordingly, judgment should be entered for plaintiff and against defendants in the amount of $86,509.21. The Clerk of Court is respectfully requested to mail a copy of the judgment and this Order to defendants, note service on the docket, and close this case. Ordered by Judge Kiyo A. Matsumoto on 3/21/2016. (McNulty, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUIS ZURITA,
Plaintiff,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION
12-CV-3874 (KAM)(MDG)

BERGEN PIZZA INCORPORATED, AND
CONSTANTINO MAYOA RODRIGUEZ, and any
other entities affiliated with or
controlled by BERGEN PIZZA
INCORPORATED and/or CONSTANTINO MOYAO
RODRIGUEZ.
Defendants.

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MATSUMOTO, United States District Judge:
On August 3, 2012, plaintiff Luis Zurita commenced
this action against defendants Bergen Pizza Incorporated
(“Bergen Pizza”) and Constantino Mayoa Rodriguez.
Complaint (“Compl.”).)

(ECF No. 1,

Bergen Pizza and Rodriguez were served

with the Summons and Complaint on August 15, 2012 and August 29,
2012, respectively.

(See ECF Nos. 4, 6, Affidavits of Service.)

Plaintiff alleges that defendants violated New York Labor Law
and sections 206 and 207 of the Fair Labor Standards Act
(“FLSA”) by failing to pay him minimum wages, overtime wages,
and spread of hours compensation during his employment as a cook
and food preparer at Bergen Pizza from January 2010 to May 2011.
(See generally, Compl.)

Neither defendant has filed any submission or
otherwise communicated with the court since May 6, 2014.

By

order dated April 2, 2015, the court struck defendants’ answers
and directed the Clerk of Court to enter default against Bergen
Pizza and Rodriguez.
Recommendation.)

(ECF No. 29, Order Adopting Report and

The Clerk of Court issued a certificate of

default against defendants on April 23, 2015.
Entry of Default dated 4/23/15.)

(See Clerk’s

Plaintiff moved for entry of

default judgment against defendants on May 26, 2015.
32, Motion for Default Judgment.)

(ECF No.

On October 8, 2015, the court

referred plaintiff’s motion for default judgment to Magistrate
Judge Marilyn D. Go for a Report and Recommendation.

(See Order

Referring Motion dated 10/8/15.)
On March 1, 2016, Judge Go issued a Report and
Recommendation in which she recommended the court award
plaintiff default judgment in the amount of $86,509.21.
No. 38, Report and Recommendation (“R&R”).)

(ECF

This amount

includes minimum wages of $21,160.44; overtime wages of
$12,687.56; spread of hours pay of $3,552.50; liquidated damages
under the FLSA of 33,848.00; liquidated damages under the New
York Labor Law of $1,154.56; attorneys’ fees of $20,230.47 and
costs of $875.68; less $7,000 to account for amounts defendants
paid to plaintiff as partial satisfaction of an earlier

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settlement agreement between the parties that defendants
eventually breached.

(Id. at 28-29.)

The Report and Recommendation, which was mailed to
defendants on March 1, 2016, notified the parties of the right
to file written objections by March 18, 2016.

(R&R at 29.)

The

period for filing objections has now expired, and no objections
to Judge Go’s R&R have been filed.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

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Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that there is no clear error on the face of the
record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)).
Upon careful consideration of the record and Judge
Go’s thorough and 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.
Plaintiff is awarded minimum wages of $21,160.44;
overtime wages of $12,687.56; spread of hours pay of $3,552.50;
liquidated damages under the FLSA of 33,848.00; liquidated
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damages under the New York Labor Law of $1,154.56; attorneys’
fees of $20,230.47 and costs of $875.68; minus a $7,000 offset
for amounts defendants paid to plaintiff before defendants
breached the settlement agreement.

Accordingly, judgment should

be entered for plaintiff and against defendants in the amount of
$86,509.21.

The Clerk of Court is respectfully requested to

mail a copy of the judgment and this Order to defendants, note
service on the docket, and close this case.

SO ORDERED.
Dated:

Brooklyn, New York
March 21, 2016
_________/s/________________
KIYO A. MATSUMOTO
United States District Judge

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