Duran v. El Malecon Restaurant Bar Inc et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION. I adopt the Report and Recommendation in its entirety. The motion for settlement approval is granted. Additionally, the motion to dismiss the corporate defendant is granted. Failure by the corporate defendan t to appear does not preclude approval of the settlement agreement. Jun Cui v. O2 Korean BBQ, No. 19-CV-2794, 2020 WL 7034369, at *2 (E.D.N.Y. Feb. 11, 2020) (The Court does not believe that the absence of an appearance by the corporate entity at any point, including at the Cheeks hearing, precludes approval of the Settlement Agreement.). Moreover, the Court has the authority to dismiss the corporate defendant, because it has not appeared. Id. (The Court should... give effect to Plaintiffs notic e of voluntary dismissal, which can be done since neither Defendant has answered or moved for summary judgment, and thereby dismiss the action without having to approve a stipulation signed by a defendant that cannot appear on a pro se basis.). Ordered by Judge Ann M. Donnelly on 9/15/2022. (Greene, Donna)

Case 1:22-cv-00116-AMD-PK Document 15 Filed 09/15/22 Page 1 of 3 PageID #: 77

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PEDRO FRANCISCO DURAN,
:
Plaintiff,
– against –
EL MALECON RESTAURANT BAR INC.,
d/b/a El Malecon Restaurant, VICTOR NUNEZ,
d/b/a El Malecon Restaurant, and JOSE
MANUEL GUERRERO, d/b/a El Malecon
Restaurant.

:
: ORDER ADOPTING REPORT
AND RECOMMENDATION
:
22-CV-116 (AMD) (PK)
:
:
:
:

Defendants.

:

:
--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge::
On January 7, 2022, the plaintiff commenced: this action against the defendants, pursuant
:
to the Fair Labor Standards Act and New York Labor Law, for unpaid overtime wages,
:
minimum wages, liquidated damages, notice violations, spread of hours violations, attorneys’
:
fees, costs and pre- and post-judgment interest. (ECF: No. 1 ¶¶ 1-2.)
On May 20, 2022, the parties1 filed a motion for approval of their settlement agreement
(ECF No. 12), and on May 23, 2022, I referred the settlement motion to Magistrate Judge Peggy
Kuo for report and recommendation. Judge Kuo held a Cheeks hearing on July 6, 2022, and
issued a Report and Recommendation on July 13, 2022, recommending that the settlement be
approved. (July 13, 2022 Order.) Judge Kuo also recommended that I grant the plaintiff
permission to dismiss El Malecon Restaurant Bar Inc. because it has not appeared, and it cannot
stipulate to dismissal. (Id.) On July 14, 2022, the plaintiff filed a motion to dismiss the

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The plaintiff, Victor Nunez and Jose Manuel Guerreo filed the settlement motion. The corporate
defendant, El Malecon Restaurant Bar Inc., has not appeared through counsel.

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corporate defendant. (ECF No. 14.) No objections have been filed to the Report and
Recommendation, and the time for doing so has passed.
A district court reviewing a Report and Recommendation “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). If no party objects to the magistrate judge’s recommendation, “a district court
need only satisfy itself that there is no clear error on the face of the record.” Urena v. New York,
160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189
(S.D.N.Y. 1985)).
I have carefully reviewed Judge Kuo’s well-reasoned Report and Recommendation for
clear error and find none. Accordingly, I adopt the Report and Recommendation in its entirety.
The motion for settlement approval is granted. Additionally, the motion to dismiss the corporate
defendant is granted. Failure by the corporate defendant to appear does not preclude approval of
the settlement agreement. Jun Cui v. O2 Korean BBQ, No. 19-CV-2794, 2020 WL 7034369, at
*2 (E.D.N.Y. Feb. 11, 2020) (“The Court does not believe that the absence of an appearance by
the corporate entity at any point, including at the Cheeks hearing, precludes approval of the
Settlement Agreement.”). Moreover, the Court has the authority to dismiss the corporate
defendant, because it has not appeared. Id. (“The Court should . . . give effect to Plaintiff’s
notice of voluntary dismissal, which can be done since neither Defendant has answered or moved
for summary judgment, and thereby dismiss the action without having to approve a stipulation
signed by a defendant that cannot appear on a pro se basis.”).

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Case 1:22-cv-00116-AMD-PK Document 15 Filed 09/15/22 Page 3 of 3 PageID #: 79

SO ORDERED.

s/Ann M. Donnelly

___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
September 15, 2022

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