Johnson v. Wave Comm GR LLC et al
Filing
144
DECISION AND ORDER granting in part and denying in part Defts' 122 motion to dismiss all claims of the unresponsive 13 opt-in pltfs. Accepting in whole the 127 REPORT AND RECOMMENDATIONS. Signed by Judge David N. Hurd on 3/12/13. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------BRETT JOHNSON,
obo himself, and others similarly situated,
6:10-CV-346
(DNH/ATB)
Plaintiffs,
-v-
WAVE COMM GR LLC; ROBERT GUILLERAULT,
individually; and RICHARD RUZZO, individually,
Defendants.
-------------------------------APPEARANCES:
NICHOLS KASTER LLP
Attorneys for Plaintiffs
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
PAUL J. LUKAS, ESQ.
TIMOTHY C. SELANDER, ESQ.
THOMAS & SOLOMON LLP
Attorneys for Plaintiffs
693 East Avenue
Rochester, NY 14607
J. NELSON THOMAS, ESQ.
PATRICK J. SOLOMON, ESQ.
JUSTIN M. CORDELLO, ESQ.
Girvin & Ferlazzo P.C.
Attorneys for Defendants
20 Corporate Woods Boulevard
2nd Floor
Albany, NY 12211
SCOTT P. QUESNEL, ESQ.
PATRICK J. FITZGERALD, III, ESQ.
DAVID N. HURD
United States District Judge
DECISION and ORDER
Plaintiff Brett Johnson brought this action on behalf of himself and others similarly
situated against defendants asserting claims under the Fair Labor Standards Act ("FLSA")
and New York Labor Law ("NYLL"). On January 29, 2013, the Honorable Andrew T. Baxter,
United States Magistrate Judge, advised by Report-Recommendation: (1) dismissal, with
prejudice, of the claims of the 13 unresponsive opt-in plaintiffs under the FLSA and
(2) dismissal of their claims, as named plaintiffs, under the NYLL, without prejudice to their
future participation, to the extent the court deems appropriate, as class members on these
state law claims if the Rule 23 class action remains certified. No objections to the ReportRecommendation were filed.1
Based upon a careful review of the entire file and the recommendations of the
Magistrate Judge, the Report-Recommendation is accepted in whole. See 28 U.S.C.
ยง 636(b)(1).
Accordingly, it is
ORDERED that
1. Defendants' motion to dismiss all claims of the unresponsive 13 opt-in plaintiffs
(Dkt. No. 122) is GRANTED in part and DENIED in part;
2. The claims of plaintiffs Anthony Calenda, Jr.; Edward Coffin; Travis DeRuby;
Matthew Helmer; Mike Helmer; Justin Jones; Arthur Mucitelli; Chris Nobles; Salomon Pierre;
1
Class counsel was previously allowed to withdraw from the representation of these 13
unresponsive individuals, and as such, class counsel has not opposed defendants' motion. None of the
13 pro se plaintiffs responded to the motion.
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John Curley, Jr.; James Quinn; Tim Rigdon and Jesus Resendiz under the Fair Labor
Standards Act are DISMISSED with prejudice;
3. The claims of plaintiffs Anthony Calenda, Jr.; Edward Coffin; Travis DeRuby;
Matthew Helmer; Mike Helmer; Justin Jones; Arthur Mucitelli; Chris Nobles; Salomon Pierre;
John Curley, Jr.; James Quinn; Tim Rigdon; and Jesus Resendiz under the New York Labor
Law are DISMISSED without prejudice to their future participation, to the extent the court
deems appropriate, as absent class members on those state law claims, if the Rule 23 class
action remains certified; and
4. On consent of defendants, their counterclaims for unjust enrichment against
plaintiffs Anthony Calenda, Jr.; Edward Coffin; Travis DeRuby; Matthew Helmer; Mike
Helmer; Justin Jones; Arthur Mucitelli; Chris Nobles; Salomon Pierre; John Curley, Jr.;
James Quinn; Tim Rigdon; and Jesus Resendiz, are DISMISSED without prejudice to
renewal to the extent one or more of these plaintiffs are allowed to participate in the future as
class members in connection with the New York Labor Law claims.
IT IS SO ORDERED.
Dated: March 12, 2013
Utica, New York.
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