Marte et al v. Westbury Mini Mart, Inc. et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS - For the reasons set forth herein, Magistrate Judge Lindsay's Report is accepted in its entirety and, for the reasons set forth herein, (1) defendants' motion to dismiss pursuant to Rule 12(b)(6) o f the Federal Rules of Civil Procedure is granted to the extent set forth in the Report; (2) plaintiffs' FLSA and NYLL claims in the original complaint arising from defendants' alleged failure to pay overtime wages are dismissed; (3) plaint iffs' motion for leave to file an amended complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure is granted to the extent that plaintiffs may serve and file an amended complaint in accordance with the Report by no later than 3/20/2017, and plaintiffs' motion is otherwise denied; and (4) the branch of defendants' motion seeking to sever plaintiffs' claims pursuant to Rule 21 of the Federal Rules of Civil Procedure is denied. SO Ordered by Judge Sandra J. Feuerstein on 3/3/2017. (Tirado, Chelsea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RAFAEL MARTE and FELIX PENA, on behalf
of themselves and all others similarly situated,
Plaintiffs,
ORDER
16-CV-0053 (SJF)(ARL)

-againstWESTBURY MINI MART, INC., WESTBURY
DELI & GROCERY, INC., HUNTINGTON
DELI, INC., STOP & GO MINIMARKET NY
CORP., RIVERHEAD DELI, CORP., FERMIN
NUNEZ, FREDDY COLLADO, MARIA G.
MORONTA, JOSE R. RODRIGUEZ, JOSE G.
TINEO, VICTORINO D. NUNEZ and STOP &
GO MINIMARKET CORP.,

FILED 
CLERK 

11:20 am, Mar 03, 2017

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

Defendants.
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FEUERSTEIN, District Judge:
Pending before the Court is the Report and Recommendation of the Honorable Arlene R.
Lindsay, United States Magistrate Judge, dated January 18, 2017 (“the Report”), (1)
recommending (a) that defendants’ motion to dismiss plaintiffs’ claims in the original complaint
alleging that defendants failed to pay overtime wages in violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201, et seq., and Article 19, §§ 650, et seq. of the New York Labor Law
(“NYLL”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure be granted, (b) that
plaintiffs’ motion for leave to file an amended complaint pursuant to Rule 15(a)(2) of the Federal
Rules of Civil Procedure be granted to the extent of allowing (i) plaintiff Felix Pena (“Pena”) to
assert FLSA and NYLL claims for overtime wages against defendants Riverhead Deli, Corp.,
Maria Moronta, Stop & Go Minimarket Corp., Freddy Collado, Stop & Go Minimarket NY
Corp. and Victorino Nunez (collectively, the “Riverhead Defendants”) “for violations occurring
during the time that he was employed by that particular [Riverhead] Defendant only[,]” (Report
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at 21); and (ii) plaintiff Rafael Marte (“Marte”) to assert FLSA and NYLL claims for overtime
wages against each defendant, as joint employers, “for violations occurring during the time [he]
was employed by that particular Defendant only[,]” (id.), (c) that plaintiffs’ motion for leave to
file an amended complaint otherwise be denied, and (d) that the branch of defendants’ motion
seeking to sever plaintiffs’ claims pursuant to Rule 21 of the Federal Rules of Civil Procedure be
denied; and (2) advising the parties, inter alia, (a) that “[a]ny objections to th[e] Report . . . must
be filed with the Clerk of the Court . . . within 14 days of service[,]” (id.), and (b) that a “[f]ailure
to file objections within th[at] period waives the right to appeal the District Court’s Order.” (Id.)
(citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.
1997); and Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996)). A copy of the Report was
served upon counsel for all parties via ECF on January 18, 2017, (see Docket Entry [“DE”] 23),
but no party has filed any objections to the Report, nor sought an extension of time to do so. For
the reasons stated herein, Magistrate Judge Lindsay’s Report is accepted in its entirety.

I.

DISCUSSION
A.

Standard of Review

Any party may serve and file written objections to a report and recommendation of a
magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, 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).
Where a party “received clear notice of the consequences of the failure to object” to a report and

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recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted); accord Small v. Secretary of Health and Human Svcs., 892
F.2d 15, 16 (2d Cir. 1989), his “failure to object timely to [that] report waives any further judicial
review of the report.” Frank, 968 F.2d at 16; see also Smith v. Campbell, 782 F.3d 93, 102 (2d
Cir. 2015); Caidor v. Onondago County, 517 F.3d 601, 604 (2d Cir. 2008).
Nonetheless, the waiver rule is “nonjurisdictional” and, thus, the Court may excuse a
violation thereof “in the interests of justice.” King v. City of New York, Dep’t of Corr., 419 F.
App’x 25, 27 (2d Cir. Apr. 4, 2011) (summary order) (quoting Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993)); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). “Such discretion is
exercised based on, among other factors, whether the defaulted argument has substantial merit or,
put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting
party.” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.
2000); accord King, 419 F. App’x at 27.

B

Review of Report

Since no party has filed any objections to Magistrate Judge Lindsay’s Report, nor sought
an extension of time to do so, they have “waive[d] any further judicial review of the findings
contained in the [R]eport.” Spence, 219 F.3d at 174. Moreover, as the Report is not plainly
erroneous, the Court will not exercise its discretion to excuse the parties’ default in filing timely
objections to the Report in the interests of justice. Accordingly, the Report is accepted in its
entirety and, for the reasons set forth therein, (1) defendants’ motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure is granted to the extent set forth in the Report;
(2) plaintiffs’ FLSA and NYLL claims in the original complaint arising from defendants’ alleged
failure to pay overtime wages are dismissed; (3) plaintiffs’ motion for leave to file an amended
complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure is granted to the
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extent that plaintiffs may serve and file an amended complaint in accordance with the Report by
no later than March 20, 2017, and plaintiffs’ motion is otherwise denied; and (4) the branch of
defendants’ motion seeking to sever plaintiffs’ claims pursuant to Rule 21 of the Federal Rules of
Civil Procedure is denied.

II.

CONCLUSION
For the reasons set forth herein, Magistrate Judge Lindsay’s Report is accepted in its

entirety and, for the reasons set forth therein, (1) defendants’ motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure is granted to the extent set forth in the Report;
(2) plaintiffs’ FLSA and NYLL claims in the original complaint arising from defendants’ alleged
failure to pay overtime wages are dismissed; (3) plaintiffs’ motion for leave to file an amended
complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure is granted to the
extent that plaintiffs may serve and file an amended complaint in accordance with the Report by
no later than March 20, 2017, and plaintiffs’ motion is otherwise denied; and (4) the branch of
defendants’ motion seeking to sever plaintiffs’ claims pursuant to Rule 21 of the Federal Rules of
Civil Procedure is denied.
SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: March 3, 2017
Central Islip, New York

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