Bowen v. Baldwin Union Free School District et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS: In conclusion (PLEASE SEE ORDER FOR FURTHER DETAILS), the Court overrules defendants' objections and adopts the R&R in its entirety as the opinion of the Court. Plaintiff must file an amended complaint by September 28, 2017. So Ordered by Judge Joan M. Azrack on 9/14/2017. (Ortiz, Grisel)

FILED 
CLERK 

9/14/2017 1:08 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT BOWEN,

ORDER
15-CV-6829 (JMA) (GRB)
Plaintiff,
v.

BALDWIN UNION FREE SCHOOL
DISTRICT and THE BOARD OF EDUCATION
OF THE BALDWIN UNION FREE SCHOOL
DISTRICT,

Defendants.
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AZRACK, United States District Judge:
Before the Court are defendants’ timely objections to Magistrate Judge Gary R. Brown’s
Report and Recommendation (“R&R”), in which Judge Brown recommended that the Court:
1. dismiss without prejudice plaintiff’s unpaid overtime claim pursuant to the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1);
2. dismiss without prejudice plaintiff’s unpaid overtime claim pursuant to New York Labor
Law (“NYLL”) § 663 and New York Code of Rules and Regulations § 142-2.2;
3. dismiss with prejudice plaintiff’s retaliation claim pursuant to the FLSA, 29 U.S.C.
215(a)(3);
4. dismiss with prejudice plaintiff’s retaliation claim pursuant to the NYLL § 215;
5. sua sponte dismiss with prejudice plaintiff’s due process claim under the Fourteenth
Amendment;
6. deny defendants’ motion to dismiss plaintiff’s due process claim under § 1983; and
7. dismiss without prejudice plaintiff’s remaining state law claims.
Having reviewed defendants’ objections and the underlying motion papers, the
Court adopts Judge Brown’s R&R in its entirety.
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In reviewing a magistrate judge’s report and recommendation, a court must “make a de
novo determination of those portions of the report or . . . recommendations to which
objection[s][are] made.” 28 U.S.C. § 636(b)(1); see also Brown v. Ebert, No. 05–CV–5579, 2006
WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006). The 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).
Those portions of a report and recommendation to which there is no specific reasoned objection
are reviewed for clear error. See Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008).
The Court has reviewed Judge Brown’s recommendations to which the parties did not
specifically object. I find that these portions of the R&R contain no clear error, and I adopt those
recommendations.
Defendants object to Judge Brown’s recommendation that certain claims be dismissed
without prejudice and that plaintiff be granted leave to amend his overtime claims and all of his
state law claims concerning the filing of a notice of claim. Upon de novo review, the Court agrees
with Judge Brown and overrules these objections. Defendants also object to Judge Brown’s
decision not to address defendants’ alternative arguments for dismissal of plaintiff’s state law
claims. Again, upon de novo review, the Court agrees with Judge Brown and declines to reach
these arguments at this time. Defendants may reassert these alternative arguments in a subsequent
motion to dismiss.

2

In conclusion, the Court overrules defendants’ objections and adopts the R&R in its
entirety as the opinion of the Court. Plaintiff must file an amended complaint by September 28,
2017.
SO ORDERED.
Dated: September 14, 2017
Central Islip, New York

/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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