Acevedo v. Cool Power, LLC et al

Filing 30

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Tomlinson's R&R (Docket Entry 29) is ADOPTED in its entirety. Plaintiff's motion for a default judgment (Docket Entry 17) is DENIED and the Clerk of the Court is directed to VACATE the certificates of default (Docket Entry 14) entered against Defendants on June 9, 2014. So Ordered by Judge Joanna Seybert on 3/9/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JARRET ACEVEDO,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-0253(JS)(AKT)

COOL POWER, LLC, DUKE SCHIDMER,
and PETER TAORMINA,
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Albert Adam Breud II, Esq.
Firestone & Breud, P.L.L.C.
356 Veterans Memorial Highway, Suite 3
Commack, NY 11725
Robert Wisniewski, Esq.
Robert Wisniewski & Associates P.C.
225 Broadway, Suite 1020
New York, NY 10007
For Defendants:

Jeffrey S. Ettenger, Esq.
Kaufman Dolowick Voluck & Gonzo LLP
135 Crossways Park Drive
Woodbury, NY 11797

SEYBERT, District Judge:
Pending before the Court is (1) Plaintiff’s motion for a
default judgment (Docket Entry 17); and (2) Magistrate A. Kathleen
Tomlinson’s Report and Recommendation (“R&R”), recommending that
this Court deny Plaintiff’s motion and vacate the certificates of
default entered against defendants (Docket Entry 29.)

For the

following reasons, the Court ADOPTS the R&R in its entirety.

BACKGROUND
Plaintiff

Jarret

Acevedo

(“Plaintiff”)

commenced

this

action on January 13, 2014 against defendant Cool Power, LLC (“Cool
Power”) and defendants Duke Schmider and Peter (the “Individual
Defendants” and together with Cool Power, “Defendants”).

Plaintiff

claims that Defendants failed to pay him overtime in violation of
the Fair Labor Standards Act and the New York Labor Law.
¶¶ 94-96, 102-105.)

(See Compl.

In February 2014, Plaintiff filed affidavits of

service affirming that the Summons and Complaint was properly served
upon Cool Power and the Individual Defendants.

(Docket Entries 6-

9.) Defendants did not answer or otherwise respond to the Complaint,
and Plaintiff requested that certificates of default be entered
against them on June 5, 2014.

(Docket Entries 11-13.)

On June 9,

2014, the Clerk of the Court issued certificates of default against
Cool Power and the Individual Defendants.

(Docket Entry 14.)

On June 30, 2014, Plaintiff moved filed a motion requesting
entry of a default judgment.

(Docket Entry 17.)

On July 2, 2014,

the undersigned referred Defendant’s motion to Magistrate Judge A.
Kathleen Tomlinson to issue a Report and Recommendation on whether
the motion should be granted.

(Docket Entry 19.)

On February 13,

2015, Judge Tomlinson issued her R&R recommending that the Court
deny Plaintiff’s motion for a default judgment and vacate the
certificates of default entered against Defendants.
29.)

2

(Docket Entry

DISCUSSION
In reviewing an R&R, a district court “may accept, reject,
or modify, in whole or in part, the findings and recommendations
made by the magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

If no

timely objections have been made, the “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) (internal
quotation marks and citation omitted).
Objections were due within fourteen days of service of the
R&R.

The time for filing objections has expired, and no party has

objected.

Accordingly, all objections are hereby deemed to have

been waived.
Upon careful review and consideration, the Court finds
Judge Tomlinson’s R&R to be comprehensive, well-reasoned, and free
of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Tomlinson’s R&R (Docket Entry 29) is ADOPTED in its
entirety.

Plaintiff’s motion for a default judgment (Docket Entry

17) is DENIED and the Clerk of the Court is directed to VACATE the
certificates of default (Docket Entry 14) entered against Defendants
on June 9, 2014.
SO ORDERED.

Dated:

/s JOANNA SEYBERT_______
Joanna Seybert, U.S.D.J.

March
9 , 2015
Central Islip, New York
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