Colella v. New York City Transit Authority et al
REPORT AND RECOMMENDATION re: 128 MOTION to Dismiss Non-Compliant Opt-In Plaintiffs filed by Manhattan and Bronx Surface Transit Operating Authority, New York City Transit Authority. For the reasons stated, we recommend that defendants' motion to dismiss be granted. Objections to R&R due by 4/2/2015 (Signed by Magistrate Judge Michael H. Dolinger on 3/16/2015) Notice of this foregoing Report & Recommendation has been provided to counsel through ECF.(ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NICOLA COLELLA, on behalf of
himself and classes of those
similarly situated, et al.,
REPORT & RECOMMENDATION
-againstNEW YORK CITY TRANSIT AUTHORITY
and MANHATTAN AND BRONX SURFACE
TRANSIT OPERATING AUTHORITY,
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Defendants in this collective action brought under the Fair
Labor Standard Act, 29 U.S.C.
have moved to dismiss
with prejudice two more opt-in plaintiffs for non-participation.
(See docket nos. 128-33, 135-36). They initially targeted Messrs.
Robert Watkis and Michael Outlar (see Defts' Memo at 1), but have
since withdrawn their motion with respect to Mr. Watkis, who failed
to appear for his originally scheduled deposition but belatedly
appeared for a rescheduled deposition on February 11, 2015.
Reply Memo at 1. See Schragin Deel.
8). We recommend that the
motion be granted with respect to Mr. Outlar.
The background to this lawsuit and its course, as well as the
pertinent legal criteria, were described in sufficient detail in
our December 2, 2014 Report and Recommendation ("Dec. 2, 2014 R&R"
which addressed a
targeting a number of other opt-ins, and the details will not be
suffices to note
scheduled for January 22, 2015.
5) . He contacted
his attorney on January 27, 2015 and indicated that he was still
6) . At a telephone conference conducted with
the court on March 13, 2015, plaintiffs' counsel reported that they
had not heard since from Mr.
Outlar and were withdrawing their
cooperation with his counsel and has apparently deliberately failed
to appear for a deposition, we conclude that dismissal of him is
appropriate (See Dec. 2, 2014 R&R at 12-14).
For the reasons stated, we recommend that defendants' motion
to dismiss be granted.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure,
the parties shall have fourteen
days from this date to file
objections shall be filed with the Clerk of the Court and served on
all adversaries, with extra copies to be delivered to the chambers
of the Honorable George B. Daniels, Room 1310, 500 Pearl Street,
New York, New York, 10007-1312, and to the undersigned, Room 1670,
500 Pearl Street, New York, New York, 10007-1312. Failure to file
timely objections may constitute a waiver of those objections, both
in the District Court and on later appeal to the United States
Court of Appeals. See 28 U.S.C.
(b) (1); Fed. R. Civ. P. 72,
6(a), 6(e); Thomas v. Arn, 474 U.S. 140 (1985); DeLeon v. Strack,
234 F.3d 84, 86
(2d. Cir. 2000)
(citing Small v. Sec'y. of Health
Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).
New York, New York
March 16, 2015
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE
Notice of this foregoing Report & Recommendation has been
provided to counsel through ECF.
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