Thomas et al v. Txx Services, Inc., et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that the Report is accepted in its entirety and, for the reasons set forth in the Report, deft's motion summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's claims against them is granted. Under Rule 77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court shall serve notice of entry of this Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. cm via ecf. Ordered by Judge Sandra J. Feuerstein on 9/30/2015. (Florio, Lisa)
IN CLERK'S OFFICE
US DISTRICT COURT E O N y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
CECIL THOMAS and JOHN DEAN on
behalf of themselves and all others similarly
s.:;c 3 o2015
LONG ISLAND OFFICE
TXX SERVICES, INC. and PATRICIA
FEUERSTEIN, District Judge:
Plaintiffs Cecil Thomas and John Dean (plaintiffs) object to a Report and
Recommendation (R. & R.) of the Honorable Steven I. Locke, United States Magistrate Judge,
dated May 22, 2015, recommending that the Court find that plaintiffs are not employees of
defendants TXX Services, Inc. (TXX) and Patricia Dougan Hunt (defendants), but instead
independent contractors, and that the Court, therefore, should dismiss their federal and state labor
claims under FED. R. CIV. P. 56. Because the Court finds no clear error in Judge Locke's R. &
R., it accepts it in its entirety.
STANDARD OF REVIEW
Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct
proceedings on dispositive pretrial matters without the consent of the parties. FED. R. CIV. P.
72(b); see Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 46 (2d Cir.
2002). Any portion of a report and recommendation on dispositive matters to which a specific,
timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); FED. R. Clv. P.
72(b); see Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). However, the court
is not required to review the factual findings or legal conclusions of the magistrate judge as to
which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct.
466, 88 L. Ed. 2d 435 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham,
Gladd & Carwile, P.C., 596 F.3d 84,92 (2d Cir. 2010) ("[A] party waives [judicial] review of a
decision in a magistrate judge's report and recommendation if the party fails to file timely
objections designating the particular issue."); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)
("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.").
General objections, or "objections that are merely perfunctory responses argued in an
attempt to engage the district court in a rehashing of the same arguments set forth in the original
papers will not suffice to invoke de novo review ... [because] [s ]uch objections would reduce
the magistrate's work to something akin to a meaningless dress rehearsal." Owusu v. New York
State Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009) (alterations, quotations and citations
omitted); Butta v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y. 2013) (quotations and citation
omitted). To accept the report and recommendation of a magistrate judge to which such general
or perfunctory objections are made, or to which no specific, timely objection has been made, the
district judge need only be satisfied that there is no clear error apparent on the face of the record.
See FED. R. CIV. P. 72(b); Spence v. Superintendent, Great Meadow Carr. Facility, 219 F.3d 162,
174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed
to determine whether the magistrate judge committed "plain error."); Libbey v. Village ofAtlantic
Beach, 982 F. Supp. 2d I85, I99 (E.D.N.Y. 2013); 7-Eleven, Inc. v. Khan, 977 F. Supp. 2d 2I4,
2I9 (E.D.N.Y. 2013).
Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C.
§ 636(b)(I); FED. R. CJV. P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Mgmt., Inc., 295 F.R.D. I,
2 (E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care Sys., Inc. v. MultiPlan, Inc.,
953 F. Supp. 2d 4I9, 424 (E.D.N.Y. 2013).
Plaintiffs object to Magistrate Judge Locke's finding that they are independent
contractors, who may not recover under federal and state law, as clear error. [Docket Entry No.
I60 (Plaintiffs Objections to Report (Pl.'s Obj.) at I)]. Plaintiffs claim that, "Judge Locke erred
by (I) resolving factual disputes in [defendants'] favor; (2) failing to make all reasonable
inferences in [their] favor; and (3) "misapplying the (summary judgment] standard." /d. at 2.
Plaintiffs point to record evidence, which, they argue, shows the existence of a genuine
issue of material fact as to whether they are employees within the meaning of the FLSA using
the five (5)-factor "economic reality" test set forth in Brock v. Superior Care, Inc. (Superior
Care), 840 F.2d I054, I058-59 (2d Cir. I988). They point to: the declarations of drivers to
show that defendants exercised control over them by: setting rates for routes, threatening to take
away their routes if they refused assignments or they did not complete an assignment without
finding a replacement driver, forbidding the drivers from dealing directly with customers,
requiring them to report to TXX's facility in the morning, setting rules for drivers, and
supervising them, evidence that the drivers did not engage in a bona fide bidding process with
defendants, that their work was integral to defendants' business, and that the drivers and
defendants had a longstanding business relationship, all of which, they argue demonstrates that
they are employees, and not independent contractors. Pl.'s Obj. 3-18. Plaintiffs' objections,
are identical to the arguments raised before Magistrate Judge Locke, and therefore, the Court
reviews Magistrate Judge Locke's R. & R. only for clear error. Owusu, 655 F. Supp. 2d at 313.
Although the "existence and degree" of each factor of the economic reality test is a
factual question, the ultimate question of whether a worker is an employee or an independent
contractor is a legal question. Superior Care, 840 F.2d at 1059. Magistrate Judge Locke
correctly found that the parties did not dispute the underlying facts, but instead characterized the
facts differently according to their respective legal positions, which does not defeat summary
judgment. See Hoardv. Sizemore, 198 F.3d 205, 211 (6th Cir. 1999) ("(T]here is no factual
dispute, but rather a dispute about how to characterize the undisputed evidence in light of the
relevant law."). Magistrate Judge Locke correctly observed that many of plaintiffs' asserted
"factual disputes" are semantical, for example whether defendants "terminated" a driver, or "no
longer engaged" his services. R. & R. 31. And, although TXX sets the drivers' routes and
schedules, and requires them to appear at its facility in the morning, this does not raise a factual
issue of"control" because TXX's clients, and the nature ofTXX's business dictate these
requirements. !d. at 29; cf Browning v. Ceva Freight, LLC, 885 F. Supp. 2d 590, 602
(E.D.N.Y. 2012) ("(T]hese constraints stemmed from the nature of the business, as opposed to
[defendant] in particular. It is reasonable that a company such as (defendant] would impose
boundaries of this nature in the shipping business."). In sum, the Court finds no clear error in
Judge Locke's legal conclusion that plaintiffs were independent contractors and not employees
under both federal and New York law. Accord Browning, 885 F. Supp. 2d at 599,610 (granting
summary judgment against drivers on FLSA and NYLL claims on issue of independent
contractor status) (citing Harjes v. Parisio, 766 N.Y.S.2d 270 (3d Dep't 2003); Barak v. Chen,
929 N.Y.S.2d 315 (2nd Dep't 2011)).
For the reasons set forth herein, the Report is accepted in its entirety and, for the reasons
set forth in the Report, defendant's motion summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure dismissing plaintiff's claims against them is granted. Under Rule
77(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court shall serve notice of
entry of this Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil
Procedure and record such service on the docket.
SANDRA J. FEUERSTEIN
United States District Judge
Dated: September 30, 2015
Central Islip, New York
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