Drice v. My Merchant Services, LLC, et. ano

Filing 18

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS. 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). Plaintiff's motion for a default judgment against Defendants My Merchant Services, LLC and Jose A. Valerio is granted. The Clerk of Court is directed to enter judgments in the amounts set forth in the attached Memorandum and Order and to close this case. Ordered by Judge Margo K. Brodie on 3/31/2016. (Reyneri, Rafael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------NAJELA DRICE,
Plaintiff,
v.

MEMORANDUM & ORDER
15-CV-395 (MKB) (MDG)

MY MERCHANT SERVICES, LLC and JOSE A.
VALERIO,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
On January 26, 2015, Plaintiff Najela Drice commenced the above-captioned action
against Defendants My Merchant Services, LLC and Jose A. Valerio alleging violations of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), the New York Labor Law, N.Y. Lab. Law
§ 650 et seq. (“NYLL”), and the New York City Human Rights Law, N.Y.C. Admin. Code
§ 8-107 et seq. (“NYCHRL”). (Compl., Docket Entry No. 1.) Although properly served with
the summons and Complaint, (Docket Entry Nos. 4, 5), Defendants have failed to appear in this
action. Plaintiff sought and obtained the entry of default against My Merchant Services, LLC
and Jose A. Valerio. (Docket Entry No. 8.) Plaintiff subsequently moved for a default
judgment. (Mot. for Default J., Docket Entry No. 9.) On April 22, 2015, the Court referred this
matter to Magistrate Judge Marilyn D. Go for a report and recommendation. (Order dated Apr.
22, 2015.)
By report and recommendation dated March 4, 2016 (the “R&R”), Judge Go
recommended that the Court grant Plaintiff’s motion for a default judgment against Defendants

in the amount of $25,432.48, comprised of: (1) $300.00 in unpaid wages, (2) $1500.00 in back
pay, (3) $20,000 for emotional distress, (4) $505.42 in prejudgment interest on the unpaid
wages, 1 (5) $2.73 in prejudgment interest on the back pay, 2 (6) $2500 in attorneys’ fees, and
(7) $624.33 in costs. (R&R 25.) 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 timely to a magistrate judge’s report may operate
as a waiver of any further judicial 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) (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.” (first citing Cephas, 328 F.3d at 107; and then citing Mario v.
P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002))).

1

Judge Go also recommended that the Court award prejudgment interest on the unpaid
wages at the rate of $0.74 per day from March 21, 2016 until the entry of judgment. (R&R 25.)
2

Judge Go also recommended that the Court award prejudgment interest on the back pay
at the rate of $0.004 per day from March 21, 2016 until the entry of judgment. (R&R 25.)
2

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). Plaintiff’s motion for a
default judgment against Defendants My Merchant Services, LLC and Jose A. Valerio 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 31, 2016
Brooklyn, New York

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