Colella v. New York City Transit Authority et al

Filing 140

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
---------------------------------x
NICOLA COLELLA, on behalf of
himself and classes of those
similarly situated, et al.,

REPORT & RECOMMENDATION
12

Plaintiffs,

CV.

6041

(GBD) (MHD)

-againstNEW YORK CITY TRANSIT AUTHORITY
and MANHATTAN AND BRONX SURFACE
TRANSIT OPERATING AUTHORITY,
Defendants.
---------------------------------x
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.

§

201

et~,

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since withdrawn their motion with respect to Mr.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.

~

(Defts'

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

1

pertinent legal criteria, were described in sufficient detail in
our December 2, 2014 Report and Recommendation ("Dec. 2, 2014 R&R"
[docket

no.

114]) ,

which addressed a

similar dismissal

motion

targeting a number of other opt-ins, and the details will not be
repeated here.

It

suffices to note

Outlar

to

appear

failed

for

his

scheduled for January 22, 2015.

that,

like Mr.

deposition,

(Shragin Deel.

~

Watkis,

which

had

Mr.
been

5) . He contacted

his attorney on January 27, 2015 and indicated that he was still
interested
offered

in pursuing

no

deposition.

indication
(Id. at

~

this
of

case,

when

he

but,

unlike

would

be

Mr.

Watkis,

available

for

he
a

6) . At a telephone conference conducted with

the court on March 13, 2015, plaintiffs' counsel reported that they
had not heard since from Mr.
objection

to

the

dismissal

Outlar and were withdrawing their
motion

insofar

as

it

targeted Mr.

Outlar.

Since

this

opt-in

plaintiff

has

apparently

ceased

all

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).

2

CONCLUSION

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
written

objections

to

this

(14)

Report

days from this date to file
and

Recommendation.

Such

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.

§

636

(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)).

Dated:

New York, New York
March 16, 2015

MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE
3

Notice of this foregoing Report & Recommendation has been
provided to counsel through ECF.

4