Morse et al v. Alpine Access, Inc. et al

Filing 62

ORDER adopting 60 Report and Recommendations and granting 46 Motion to Dismiss all claims of Plaintiff Sandy Morowitz. The claims of Plaintiff Sandy Morowitz under the Fair Labor Standards Act are DISMISSED with prejudice; claims of Sandy Moro witz as a named plaintiff under the New York Labor Law or other state law are DISMISSED WITHOUT PREJUDICE to her future participation, to the extent the Court deems appropriate, as an absent class member on those state law claims, if the Rule 23 class action becomes certified. Signed by Judge Brenda K. Sannes on 11/8/17. (rjb, )

Case 5:17-cv-00235-BKS-ATB Document 62 Filed 11/08/17 Page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________________
CAROL MORSE, other
similarly-situated individuals, et al.,
Plaintiffs,
v.

5:17-CV-0235 (BKS/ATB)

ALPINE ACCESS, INC., et al.,
Defendants.
________________________________________________

Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiffs Carol Morse, Becky Nellos and Sandy Morowitz, commenced this Fair Labor
Standards Act case asserting claims on behalf of themselves and other similarly-situated
individuals. Dkt. No. 1. On August 3, 2017, Defendants filed a motion to dismiss Plaintiff
Sandy Morowitz under Fed. R. Civ. P. 41(b). Dkt. No. 46. Plaintiff Morowitz has not opposed
this motion. Plaintiffs’ counsel has informed defense counsel that Morowitz intends to withdraw
from the litigation. Dkt. No. 46-9, p. 1. Defendants’ motion was referred to United States
Magistrate Judge Andrew T. Baxter who, on September 26, 2017, issued a ReportRecommendation recommending that Defendants’ motion to dismiss be granted. Dkt. No. 60.
Magistrate Judge Baxter advised the parties that under 28 U.S.C. § 636(b)(1), they had fourteen
days within which to file written objections to the report, and that the failure to object to the
report within fourteen days would preclude appellate review. Dkt. No. 60, p. 8. No objections to
the Report-Recommendation have been filed.

Case 5:17-cv-00235-BKS-ATB Document 62 Filed 11/08/17 Page 2 of 2

As no objections to the Report-Recommendation have been filed, and the time for filing
objections has expired, the Court reviews the Report-Recommendation for clear error. See
Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. Having reviewed the Report-Recommendation for clear
error and found none, the Court adopts it in its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 60) is ADOPTED in its
entirety; and it is further
ORDERED that Defendants’ motion to dismiss all claims of Plaintiff Sandy Morowitz
(Dkt. No. 46) is GRANTED; and it is further
ORDERED that the claims of Plaintiff Sandy Morowitz under the Fair Labor Standards
Act are DISMISSED with prejudice; and it is further
ORDERED that claims of Sandy Morowitz as a named plaintiff under the New York
Labor Law or other state law are DISMISSED WITHOUT PREJUDICE to her future
participation, to the extent the Court deems appropriate, as an absent class member on those state
law claims, if the Rule 23 class action becomes certified.
IT IS SO ORDERED.
Dated: November 8, 2017

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