Morales v. B&M General Renovation Inc. et al

Filing 38

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION. For the reasons set forth in the attached Memorandum and Order, the Court adopts 37 Magistrate Judge Marilyn D. Go's report and recommendation in its entirety. Plaintiffs' motion for a default judgment 26 against defendants B&M General Renovation Inc., Michael Luong, and Theresa Luong is granted. The Clerk of the Court is directed to enter default judgments in the amounts set forth in the attached Memorandum and Order, and to close this case. Ordered by Judge Margo K. Brodie on 3/29/2016. (Deknatel, Anna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------RAFAEL MORALES, FERNANDO MIRANDA,
HORLANDO MONTES and GERARDO ROJAS,
Plaintiffs,

MEMORANDUM & ORDER
14-CV-7290 (MKB) (MDG)

v.
B&M GENERAL RENOVATION INC., dba B&M
GENERAL RENOVATION, MICHAEL LUONG
and THERESA LUONG,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Rafael Morales commenced the above-captioned action on December 15, 2014,
against Defendants B&M General Renovation, Inc. (“B&M”), Michael Luong and Theresa
Luong. (Compl., Docket Entry No. 1.) On February 17, 2015, an Amended Complaint added
Fernando Mirando, Horlando Montes and Gerardo Rojas, who had opted-in to the collective
action, as Plaintiffs along with Morales. (Docket Entry No. 14.) Plaintiffs allege violations of
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the New York Labor Law,
N.Y. Lab. Law § 650 et seq. (“NYLL”). Although properly served with the summons and
Amended Complaint, (Docket Entry Nos. 15, 16, 17), Defendants have failed to appear in this
action. Plaintiffs sought and obtained a notice of default against B&M, Michael Luong and
Theresa Luong. (Docket Entry Nos. 18, 20.) Plaintiffs subsequently moved for a default
judgment. (Docket Entry No. 26.) On June 18, 2015, the Court referred this matter to
Magistrate Judge Marilyn D. Go for a report and recommendation. (Order dated June 18, 2015.)
By report and recommendation dated March 9, 2016 (the “R&R”), Judge Go

recommended that the Court grant Plaintiffs’ motion for a default judgment against Defendants
in the amount of $545,800.87, calculated as follows: (1) $79,358.00 in favor of Morales
(consisting of $24,786.00 in overtime wages, $24,786.00 in liquidated damages pursuant to the
FLSA, $24,786.00 in liquidated damages pursuant to the NYLL, and $5,000, for failure to
provide various wage notices, pursuant to the NYLL); (2) $241,680.56 in favor of Miranda
(consisting of $81,081.00 in overtime wages, $70,065.00 in liquidated damages pursuant to the
FLSA, $81,081.00 in liquidated damages pursuant to the NYLL, $5,000, for failure to provide
various wage notices, pursuant to the NYLL, and $4,453.56 in prejudgment interest1);
(3) $159,791.00 in favor of Montes (consisting of $51,597.00 in overtime wages, $51,597.00 in
liquidated damages pursuant to the FLSA, $51,597.00 in liquidated damages pursuant to the
NYLL, and $5,000, for failure to provide various wage notices, pursuant to the NYLL);
(4) $55,985.00 in favor of Rojas (consisting of $16,995.00 in overtime wages, $16,995.00 in
liquidated damages pursuant to the FLSA, $16,995.00 in liquidated damages pursuant to the
NYLL, and $5,000, for failure to provide various wage notices, pursuant to the NYLL);
(5) $8343.00 in attorneys’ fees; and (6) $643.31 in costs. (R&R 23, 34–35.) Judge Go also
recommended an award of statutory post-judgment interest. (Id. at 26.) No party has objected to
the R&R and the time for doing so has passed.
A district court reviewing a magistrate judge’s recommended ruling “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)(1)(C). “[F]ailure to object to a magistrate judge’s report and
recommendation within the prescribed time limit may operate as a waiver of any further judicial

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Judge Go also recommended that the Court award prejudgment interest to Miranda at
the rate of $2.67 per day from March 31, 2016 until the entry of judgement. (R&R 26.)
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review of the decision, as long as the parties receive clear notice of the consequences of their
failure to object.” Eustache v. Home Depot U.S.A., Inc., 621 F. App’x 86, 87 (2d Cir. 2015)
(internal quotation marks omitted) (quoting United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997)); see also Almonte v. Suffolk Cty., 531 F. App’x 107, 109 (2d Cir. 2013) (“As a rule, a
party’s failure to object to any purported error or omission in a magistrate judge’s report waives
further judicial review of the point.” (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)));
Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate review of a decision in a magistrate
judge’s report and recommendation if the party fails to file timely objections designating the
particular issue.” (citing Cephas, 328 F.3d at 107)).
The Court has reviewed the unopposed R&R and, finding no clear error, the Court adopts
Judge Go’s R&R in its entirety pursuant to 28 U.S.C. § 636(b)(1). Plaintiffs’ motion for a
default judgment against B&M, Michael Luong and Theresa Luong is granted. The Clerk of
Court is directed to enter judgments in the amounts set forth above, and to close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: March 29, 2016
Brooklyn, New York

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