Charvac v. M&T Project Managers of New York, Inc.

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court has reviewed the record and, finding no clear error, hereby adopts Magistrate Judge Reyes's R&R as the opinion of the Court. Accordingly, the Court denies the motion for default judgment without prejudice to renewal, and nunc pro tuns grants Charvac leave to file an amended complaint that includes the claims of the opt-in plaintiffs.. Ordered by Chief Judge Carol Bagley Amon on 12/18/2013. (Fernandez, Erica)

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FILED

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MARIO CHARVAC,

IN CLERK'S OFfiCI!
U.S. D1STRICT COUPIT E.D.N.Y.

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DEC 18 2013

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BROOiCLYN OFFICE

Plaintiff,
-against-

NOT FOR PUBLICATION
MEMORANDUM & ORDER
12-CV-05637 (CBA) (RER)

M&T PROJECT MANAGERS OF NEW YORK, INC.,
Defendant.

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AMON, Chief United States District Judge.
On November 15, 2012, plaintiff Mario Charvac commenced this action on behalf of
himself and all other similarly situated individuals against defendant M&T Project Managers of
New York, Inc. ("M&T"). Charvac filed suit pursuant to the Fair Labor Standards Act, 29
U.S.C. §§ 201-19, and the New York Labor Law, N.Y. Lab. Law§§ 650-65, seeking to recover
unpaid wages, overtime compensation, and "spread of hours" premium, as well as liquidated
damages, prejudgment and postjudgment interest, and attorneys' fees. (Campi. at 12-13.) The
complaint also seeks a declaratory judgment that M&T's pay practices are illegal and requests
that the Court enjoin M&T from engaging in such unlawful practices. (Id. at 12.) On December
28,2013, Charvac's attorney filed Consent to Join forms on behalf ofEstuardo Charvac, Jose G.
Patzan, and Jose V. Patzan (the "opt-in plaintiffs"), each of whom purported to join the suit
pursuant to 29 U.S.C. § 216(b). (Docket Entries 4-7.) Charvac has neither sought conditional
certification for the collective action, nor has he amended his complaint to add the claims of the
opt-in plaintiffs.
M&T did not respond to the complaint, and on March 13,2013, upon Charvac's request,
the Clerk of the Court entered default against M&T. On May 3, 2013, Charvac, along with the
three opt-in plaintiffs, moved for a default judgment, seeking unpaid overtime wages, liquidated

damages, and attorneys' fees and costs. The Court referred the matter to Magistrate Judge
Ramon E. Reyes, Jr., for report and recommendation. On October 31, 2013, Magistrate Judge
Reyes issued a Report and Recommendation ("R&R") recommending that the Court (I) deny the
motion for default judgment in its entirety without prejudice to renewal, as the opt-in plaintiffs
are not entitled to default judgment based on a complaint in which they are not named, and (2)
sua sponte grant Charvac leave to filed an amended complaint that includes the claims of the optin plaintiffs.
No party has objected to the R&R, and the time for doing so has passed; Charvac and the
opt-in plaintiffs, however, filed an amended complaint on December 13, 2013. When deciding
whether to adopt an R&R, a district court "may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). To accept
those portions of the R&R to which no timely objection has been made, "a district court need
only satisfy itself that there is no clear error on the face of the record." Jarvis v. N. Am. Globex
Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (internal quotation marks omitted). The
Court has reviewed the record and, finding no clear error, hereby adopts Magistrate Judge
Reyes's R&R as the opinion of the Court. Accordingly, the Court denies the motion for default
judgment without prejudice to renewal, and nunc pro tunc grants Charvac leave to file an
amended complaint that includes the claims of the opt-in plaintiffs.
SO ORDERED.

Dated:

Brooklyn, New York
December I(. 2013

s/Carol Bagley Amon

~Carol Bagley

Atfn () / -

Chief United St tes District Judge