Jaramillo v. Banana King Restuarant Corp. et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: The court OVERRULES Defendant Vega's objections, ADOPTS IN FULL the 41 R&R, and, accordingly, DENIES Defendants' 25 motion to set aside the default judgment. So Ordered by Judge Nicholas G. Garaufis on 3/16/2016. (c/m to pro se with appeals packet) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FERNAN JARAMILLO, individually and on
behalf of others similarly situated,
-against12-CV-5649 (NGG) (RML)
BANANA KING RESTAURANT CORP.,
BANANA KING, CORP., and ARLES VEGA,
NICHOLAS G. GARAUFIS, United States District Judge.
On November 16, 2012, Plaintiff Fernan Jaramillo brought this action against Defendants
Banana King Restaurant Corp., Banana King Corp., and Aries Vega pursuant to the Fair Labor
Standards Act, 29 U.S.C. §§ 201, et seq., and several provisions of the New York Labor Law,
alleging failure to pay Plaintiff minimum wage, overtime, and spread-of-hours wages, and failure
to provide notice of wages and employment terms and conditions. (Compl. (Dkt. 1).) On
July 2, 2014, after Defendants failed to answer or appear in this case, the court entered default
judgment against Defendants, and awarded Plaintiff a total of$41,832.39, plus interest. (See
July 2, 2014, Order (Dkt. 20).)
On October 13, 2014, Defendants filed a fully briefed motion to set aside the default
judgment. (Defs.' Mot. to Set Aside Default J. (Dkts. 25-32).) On April 7, 2015, the
undersigned referred Defendants' motion to Magistrate Judge Robert M. Levy for a Report and
Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(l)(B) and Federal Rule of Civil
Procedure 72(b)(l). (Order Referring Mot. (Dkt. 33).)
On February 26, 2016, Judge Levy issued an R&R recommending that the court deny
Defendants' motion. (Feb. 26, 2016, R&R (Dkt. 41).) Specifically, Judge Levy found that
Defendants had failed to meet their burden of demonstrating that their default was not willful.
(Id. at 9 (citing Adidas Spoerschuhfabriken Adi Dassler Stiftung & Co .. K.G. v. Cheung, No. 87CV-8989 (JFK), 1990 WL 48063, at *2 (S.D.N.Y. Apr. 10, 1990); Bank of Montreal v. Mitsui
Mfrs. Bank, No. 85-CV-1519 (JFK), 1989 WL 135265, at *2 (S.D.N.Y. Nov. 2, 1989)).)
On March 14, 2016, the court received a prose letter objection to the R&R from
Defendant Aries Vega. (See Def.'s Obj. to R&R (Dkt. 42).) However, this submission was
received after the deadline to object to the R&R. (See Feb. 26, 2016, R&R at 9-10 ("Any
objections to this [R&R] must be filed within fourteen (14) days ... in order to preserve
appellate review.").) 1 Nonetheless, since Defendant Vega is proceeding prose, and considering
a reasonable delay due to postal processing, the court will consider his objection. However, for
the following reasons, Defendant Vega's objection is OVERRULED and the R&R is ADOPTED
In reviewing the R&R of a dispositive matter from a magistrate judge, the district court
"may adopt those portions of the Report to which no objections have been made and which are
not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000); see
also Gesualdi v. Mack Excavation & Trailer Serv .. Inc., No. 09-CV-2502 (KAM) (JO), 2010
WL 985294, at *l (E.D.N.Y. Mar. 15, 2010) ("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." (internal quotation marks and citation omitted)). The district
court must review de novo "those portions of the report ... to which objection is made." 28
U.S.C. § 636(b)(I). However, to obtain this de novo review, an objecting party "must point out
the specific portions of the report and recommendation to which they object." U.S. Flour Coro.
The court has not received objections from the other Defendants in this case.
v. Certified Bakery, Inc., No. 10-CV-2522 (JS) (WOW), 2012 WL 728227, at *2 (E.D.N.Y.
Mar. 6, 2012); see also Fed. R. Civ. P. 72(b)(2) ("[A] party may serve and file specific written
objections to the [R&R]. "). If a party "makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for
clear error." Pall Com. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008) (citations omitted);
see also Mario v. P&C Food Mkts .. Inc., 313 F.3d 758, 766 (2d Cir. 2002) (holding that
plaintiff's objection to an R&R was "not specific enough" to "constitute an adequate objection
under ... Fed. R. Civ. P. 72(b)"). Furthermore, "[a]n objection to a report and recommendation
in its entirety does not constitute a specific written objection within the meaning of Rule 72(b)."
Healing Power, Inc. v. Ace Cont'! Exports, Ltd., No. 07-CV-4175 (NGG) (RLM), 2008
WL 4693246, at *l (E.D.N.Y. Oct. 17, 2008). "A decision is 'clearly erroneous' when the Court
is, 'upon review of the entire record, left with the definite and firm conviction that a mistake has
been committed."' DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339-40 (S.D.N.Y. 2009)
(quoting United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006)).
Defendant's objections are simply a restatement of the arguments that he presented at the
December 9, 2015, hearing before Judge Levy. (See Feb. 16, 2016, R&R at 3-4, 5.) Therefore,
these objections are entitled only to clear error review. See Pall Com., 249 F.R.D. at 51 ("When
a party ... simply reiterates his original arguments, the Court reviews the [R&R] only for clear
error."). Finding no clear error, the court OVERRULES Defendant Vega's objections, ADOPTS
IN FULL the R&R, and, accordingly, DENIES Defendants' motion to set aside the default
s/Nicholas G. Garaufis
NICHOLAS G. GARAUFI!
United States District Judge
Dated: Brooklyn, New York
March Ik_, 2016
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