Tejada et al v. La Selecta Bakery, Inc. et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Court has reviewed the record and, finding no clear error, adopts the R&R as the opinion of the Court. Accordingly, the Court denies the motion for default judgment without prejudice to renewal, and gr ants the Plaintiffs leave to file an amended complaint that includes the claims of the Opt-in Plaintiffs. Ordered by Judge Carol Bagley Amon on 5/31/2019. (Fernandez, Erica) (Main Document 34 replaced on 6/3/2019) (Fernandez, Erica). (Main Document 34 replaced on 6/3/2019) (Fernandez, Erica).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

ANTONIO TEJADA, ANDRES EDGARDO
LARROCA FRANCO and ALICIA

SANTOS,on behalf of themselves,
individually, and on behalf of all others
similarly situated.

NOT FOR^UBLICATION
Plaintiffs,

ORDER

I7-CV-5882(CBA)
(RER)
-againstLA SELECTA BAKERY,INC. and RAFAEL

REYNOSO,individually.
Defendants.
-X

AMON,United States District Judge:

Plaintiffs Antonio Tejada, Andres Edgardo Larroea Franco,and Alicia Santos("Plaintiffs")
bring this action individually and on behalf of all others similarly situated against La Selecta
Bakery,Inc. and Rafael Reynoso ("Defendants"), seeking damages and equitable relieffor unpaid
overtime and minimum wage violations pursuant to the Fair Lahor Standards Act and New York

Labor Law. (D.E. #19("Am. Compl.").) Three former employees of the Defendants, Evelyn
Jacinto, Araceli Perez, and Adan Tejada(the "Opt-in Plaintiffs"), have filed consent to join forms
purporting to join this action as opt-in plaintiffs. (D.E. # 8, 9, 15.) Although the Amended

Complaint contains general collective action and class allegations, it does not specifically name
the Opt-in Plaintiffs or articulate their claims. ("See Am. Compl.) Plaintiffs have not moved for
class certification under either § 216(b)ofthe FLSA or Federal Rule of Civil Procedure 23.

Defendants have failed to appear in this action or respond to the Amended Complaint,
resulting in the Clerk's entry of default pursuant to Federal Rule of Civil Procedure 55(a). (D.E.
dated May 8, 2018.) Plaintiffs have moved—on behalf of themselves and the Opt-in Plaintiffs—

for default judgment against the Defendants. (D.E. # 29.) The Court referred this motion to the
Honorable Ramon E. Reyes, Jr., United States Magistrate Judge, for a Report and
Recommendation("R&R"). (D.E. dated Feb. 6, 2019.) On May 1, 2019, Magistrate Judge Reyes
issued a thorough and well-reasoned R&R,recommending that the Court:(1) deny the motion for
defaultjudgment 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
Plaintiffs leave to file an amended complaint that includes the claims ofthe Opt-in Plaintiffs. (D.E.
# 21 ("R&R")at 3^.)

No party has objected to the R&R, and the time for doing so has passed. When deciding
whether to adopt a report and recommendation, 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)(1). To accept those portions ofthe 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
and citation omitted).

The Court has reviewed the record and, finding no clear error, adopts the R&R as the
opinion of the Court. Accordingly, the Court denies the motion for defaultjudgment without

prejudice to renewal, and grants the Plaintiffs leave to file an amended complaint that includes
the claims of the Opt-in Plaintiffs.
SO ORDERED.

Dated: May ^ ,2019

i^n.New York

Brooklvn, New York

_
"""Carol Bagreiy AiyonX j
s/Carol Bagley Amon

United States Di^rict/Judge