Colella v. New York City Transit Authority et al
Filing
139
MEMORANDUM DECISION AND ORDER Adopting 114 Report and Recommendations, 101 Motion to Dismiss filed by Manhattan and Bronx Surface Transit Operating Authority, New York City Transit Authority. Magistrate Judge Dolinger's December 2, 20 14 Report and Recommendation is adopted to the extent that Defendants' motion to dismiss is GRANTED insofar as plaintiffs Lester Haynes,Thomas Mascia, Michael Reid, Richard J. Dempsey, Efrain Ortiz, Jr., John A. Villa, Daniel Nadal, William Benn ett, Thomas Scaccianoce, Antonio Bustillo, Vincent Crawford, Murshid Alladeen, Michael Cirminiello, Dorothy DiMaggio (on behalf of the Estate of John DiMaggio), Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio Tiongson are DISMISSED from this case. Defendants' motion for attorneys' fees and costs is hereby DENIED. The Clerk of the Court is directed to close the motion at ECF No. 101. SO ORDERED. (Signed by Judge George B. Daniels on 3/03/2015) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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I
NICOLA COLELLA, on behalf of himself and
classes of those similarly situated, et al.,
Plaintiffs,
-againstNEW YORK CITY TRANSIT AUTHORITY and
MANHATTAN AND BRONX SURFACE
TRANSIT OPERATING AUTHORITY,
12 Civ. 6041 (GBD) (MHD)
Defendants.
------------------------------------ x
GEORGE B. DANIELS, United States District Judge:
Plaintiffs bring this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§§ 201, et seq., seeking to recover unpaid compensation allegedly due. (Compl., ECF No. 1.)
Defendants move under Federal Rule of Civil Procedure 3 7(b )(2) to dismiss certain "noncompliant" opt-in plaintiffs, and for an award of attorneys' fees and costs incurred in connection
with this motion. (Mot., ECF No. 101.) On December 2, 2014, Magistrate Judge Michael H.
Dolinger issued a Report and Recommendation ("Report") in which he recommended that
defendants' motion be granted for twenty out of the twenty-one opt-in plaintiffs at issue, and that
the request for attorneys' fees and costs be denied. (See Report at 11, 20, ECF No. 114.) This
Court adopts the Report's recommendations to dismiss nineteen of the plaintiffs.
FACTUAL BACKGROUND
Between April 17 and August 20, 2014, defendants served interrogatories and requests
for production upon the opt-in plaintiffs. 1 (Report at 2.) During a conference with the parties,
1
The names of the twenty-one opt-in plaintiffs at issue are as follows:(!) Lester Haynes; (2) Thomas Mascia; (3)
Michael Reid; ( 4) Richard J. Dempsey; (5) Efrain Ortiz, Jr.; (6) John A. Villa; (7) Daniel Nadal; (8) William
Magistrate Judge Dolinger set October 3, 2014 as the deadline for the provision of full discovery
responses because plaintiffs had not responded to these requests. (See id. at 3.) At this
conference, Magistrate Judge Dolinger expressly stated that he would likely recommend
dismissal of the uncooperative plaintiffs if discovery responses were not timely served by this
date. (Id. at 3.) 2 Despite plaintiffs' counsel's efforts to contact the opt-in plaintiffs, the
defendants' requests went unanswered, and defendants subsequently moved to dismiss these optin plaintiffs. (Id. at 3-4.)
STANDARD OF REVIEW
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When there are objections to the Report, the Court must make
a de nova determination of those portions of the Report to which objections are made. Id.; see also
Rivera v. Barnhart, 423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter.
See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court
"arrive at its own, independent conclusion" regarding those portions of the Report to which
objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting
Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a
Bennett; (9) Thomas Scaccianoce; (10) Antonio Bustillo; (11) Vincent Crawford; (12) Murshid Alladeen; (13)
Michael Cirminiello; (14) Dorothy DiMaggio, on behalfofthe Estate of John DiMaggio; ( 15) Gladstone Dawson;
( 16) Jasper Freeman; (17) Andres Gonzalez; ( 18) David Portalatin; (19) Richard Raiano; (20) Ignacio Tiongson; and
(21) Steven Alesci.
2
See also September 19, 2014 Transcript at 18:3-9, ECF No. 96 ("What I anticipate is simply that if the time passes
with no further information from [the opt-in plaintiffs], the defendants will make a short, simple, slimmed-down
fom1al application to dismiss them from the case .... And you can assume that motion will be granted .... ").
2
Report, the Court may adopt the Report if "there is no clear error on the face of the record." Adee
Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quotation omitted).
Magistrate Judge Dolinger advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report at 22-23); see also 28
U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b). Plaintiffs' counsel timely filed objections to the Report,
contesting the recommendation to dismiss six opt-in plaintiffs: Andres Gonzalez, Gladstone
Dawson, Jasper Freeman, David Portalatin, Richard Raino, and Ignacio Tiongson. (See Pl.'s
I")~~
December 15, 2014 Objections ("Obj.
7, 10-11, ECF No. 118.) Plaintiffs' counsel contends
that Andres Gonzalez should not be dismissed from this action because, following an initial
misunderstanding, Mr. Gonzalez "immediately responded to the discovery requests," which were
served on November 24, 2014. (Id.
~~
7, 10.) Additionally, plaintiffs' counsel argues that the
other five opt-in plaintiffs should likewise not be dismissed because these plaintiffs "should be
given similar leeway in the event that they too had any confusion (through no fault of their own)
regarding discovery and their obligations in this case."
(Id.~
11 (emphasis added).) In response,
defendants argue that this Court should review the Report for clear error in light of plaintiffs'
conclusory objections, and that the Report should be adopted in full. (Def. 's Reponse to Objections
("Obj. 11") ~~ 9-10, 13, ECF No. 121.)
Plaintiffs' vague objections concerning Gladstone Dawson, Jasper Freeman, David
Portalatin, Richard Raino, and Ignacio Tiongson do not meet the criteria for de nova review. The
objections merely suggest that a misunderstanding may have prevented these five opt-in plaintiffs
from satisfying their discovery obligations. They offer no specific explanation regarding the
substance of any potential misunderstandings, let alone when these plaintiffs would comply with
the outstanding discovery requests. This Court therefore reviews the Report for clear error. See
3
Berman v. Neo@Oglivy LLC, No. 1:14-cv-523-GHW-SN, 2014 WL 6860583, at *2 (S.D.N.Y.
Dec. 5, 2014) (internal quotation marks omitted) ("To accept those portions of the report to which
no objection has been made, or where a party makes only conclusory or general objections, or
simply reiterates his original arguments, a district court reviews the report only for clear error.")
However, because plaintiffs' objections concerning Andres Gonzalez are "clearly aimed at" the
Report's recommendation to dismiss, and raise an argument based on facts that were not before
the Magistrate Judge, this Court will review the Report's recommendation as to Mr. Gonzalez de
nova. See id.
I.
UNDISPUTED OPT-IN PLAINTIFFS
Magistrate Judge Dolinger correctly recommended that fourteen of the opt-in plaintiffs
should be dismissed from this case. (See Report at 11.) These plaintiffs informed plaintiffs'
counsel that they now wish to opt out, and plaintiffs do not object to their dismissal. (Id. at 5; see
also Obj. I if 3.) Accordingly, plaintiffs Lester Haynes, Thomas Mascia, Michael Reid, Richard J.
Dempsey, Efrain Ortiz, Jr., John A. Villa, Daniel Nadal, William Bennett, Thomas Scaccianoce,
Antonio Bustillo, Vincent Crawford, Murshid Alladeen, Michael Cirminiello, and Dorothy
DiMaggio, on behalf of the Estate of John DiMaggio, are hereby dismissed from this case.
Additionally, the Report found that plaintiff Steven Alesci should remain in this case
because he ultimately responded to the discovery requests on November 12, 2014, and therefore
the harsh remedy of dismissal was unwarranted. (Report at 18.) Defendants have indicated that
"[t]here is no dispute regarding Magistrate Judge Dolinger's recommendation[] that Opt-In
Plaintiff Steve[n] Alesci not be dismissed as a party plaintiff." (Obj. II
Court does not dismiss Steven Alesci from this case.
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if 8 n.1.)
As a result, this
II.
DISPUTED OPT-IN PLAINTIFFS
The Report recommended that the remaining six opt-in plaintiffs-Andres Gonzalez,
Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio Tiongsonbe dismissed pursuant to Rule 37(b )(2)(A) for their "fail[ure] to obey an order to provide or permit
discovery." (See Report at 12-16.) This finding remains correct as to five of the six opt-in
plaintiffs (Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio
Tiongson). These five plaintiffs should therefore be dismissed.
Under Rule 37(b )(2)(A), noncompliance with discovery orders can result in the court's
issuance of "further just orders," such as the "dismiss[ al of] the action or proceeding in whole or
in part." See Fed. R. Civ. P. 37(b)(2)(A)(v). "Imposing sanctions pursuant to Rule 37 'is within
the discretion of the district court['] .... " World Wide Polymers, Inc. v. Shinkong Synthetic Fibers
Corp., 694 F.3d 155, 159 (2d Cir. 2012) (quoting John B. Hull, Inc. v. Waterbury Petroleum
Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988)). In exercising this discretion, a district court
considers several factors, including: "(!)the willfulness of the non-compliant party or the reason
for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of
noncompliance; and (4) whether the non-compliant party had been warned of the consequences of
noncompliance." Valentini v. Citicorp Fin. Servs. Corp., No. 13-4780-cv, 2014 WL 7234576, at
* 1 (2d Cir. Dec.
19, 2014) (quoting SEC v. Razmilovic, 738 F.3d 14, 25 (2d Cir. 2013)).
Magistrate Judge Dolinger's application of these factors to the five opt-in plaintiffs
referenced above was not in error. As described in the Report: ( 1) these plaintiffs "appear to be
deliberately disregarding their discovery obligations" by failing to respond by the court-ordered
deadline of October 3, 2014; (2) lesser sanctions would be ineffective, given these plaintiffs'
decision not to pursue this litigation; (3) the period of noncompliance has been sufficiently lengthy,
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spanning between three to over four months; 3 and (4) all parties were clearly informed by
Magistrate Judge Dolinger that a motion to dismiss opt-in plaintiffs who did not comply with the
October 3, 2014 deadline would be granted. (See Report at 13-16.) Because all of these factors
weigh in favor of dismissal, plaintiffs Gladstone Dawson, Jasper Freeman, David Portalatin,
Richard Raiano, and Ignacio Tiongson are hereby dismissed from this case.
Upon de nova review, this Court finds that plaintiff Andres Gonzalez should remain in this
action. According to Plaintiffs, Mr. Gonzalez "contacted counsel on November 21, 2014" and
explained that he "did not understand that he had to respond to counsel's efforts to contact him."
(Obj. I ii 7.) The parties agree that Mr. Gonzalez served responses to the discovery requests three
days later, on November 24, 2014. (Id.; Obj. II ii 5.) The Report's recommendation with regards
to plaintiff Steven Alesci-that dismissal would be inappropriate, even though Mr. Alesci's
November 12, 2014 responses to the discovery requests were untimely (see Report at 18-19)-can
be extended to Mr. Gonzalez's situation, as he responded to the outstanding requests a mere twelve
days after Mr. Alesci. This Court further observes that defendants do not protest the sufficiency
of Mr. Gonzalez's discovery responses. Because dismissal under Rule 37 "is a drastic remedy that
should be imposed only in extreme circumstances," John B. Hull, 845 F.2d at 1176, and because
Mr. Gonzalez has evidenced his intention to participate, he should not be dismissed from this case.
III.
ATTORNEYS' FEES AND COSTS
Magistrate Judge Dolinger properly concluded that defendants should not be awarded
attorneys' fees and costs incurred in connection with their motion to dismiss. (See Report at 2021.) Rule 37(b )(2)(C) provides for the recovery of expenses caused by an opposing party's failure
3
As of the date of this Order, "other than Andres Gonzalez, no other Non-Compliant Opt-In Plaintiff whom
Magistrate Judge Dolinger recommended be dismissed has responded to Defendants' written discovery requests."
(See Obj. II if 7.)
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to comply with a discovery order, "unless the failure was substantially justified or other
circumstances make an award of expenses unjust." The Report reasoned that an award of expenses
to defendants would be "unjust" because: (I) the defendants' "woeful" performance in discovery
required plaintiffs "to spend at least as much attorney time as the defendants expended on the
current motion"; (2) the opt-in plaintiffs, who were not original plaintiffs in the action, did not
impose significant expenses upon the defendants; and (3) the plaintiffs should not be penalized by
opt-in plaintiffs who later decide not to participate in the case, as the FLSA's authorization of a
collective action is designed to encourage participation by affected employees. (See Report at 1617, 20-21.) These reasons support a finding that an award of expenses would be unjust, and
defendants' motion for attorneys' fees and costs is denied.
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CONCLUSION
Magistrate Judge Dolinger's December 2, 2014 Report and Recommendation is adopted to
the extent that Defendants' motion to dismiss is GRANTED insofar as plaintiffs Lester Haynes,
Thomas Mascia, Michael Reid, Richard J. Dempsey, Efrain Ortiz, Jr., John A. Villa, Daniel Nadal,
William Bennett, Thomas Scaccianoce, Antonio Bustillo, Vincent Crawford, Murshid Alladeen,
Michael Cirminiello, Dorothy DiMaggio (on behalf of the Estate of John DiMaggio), Gladstone
Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio Tiongson are
DISMISSED from this case. Defendants' motion for attorneys' fees and costs is hereby DENIED.
The Clerk of the Court is directed to close the motion at ECF No. 101.
Dated: New York, New York
March 3, 2015
SO ORDERED.
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