Colella v. New York City Transit Authority et al

Filing 141

MEMORANDUM DECISION AND ORDER Adopting 140 Report and Recommendations. Having reviewed the Report for clear error, this Court adopts the Report's Recommendation in full. Plaintiff Michael Outlar is hereby DISMISSED as a named opt-in plaintif f from this action. The Clerk of the Court is directed to close the motion at ECF No. 128. SO ORDERED.Motions terminated: 128 MOTION to Dismiss Non-Compliant Opt-In Plaintiffs filed by Manhattan and Bronx Surface Transit Operating Authority, New York City Transit Authority. (Signed by Judge George B. Daniels on 3/17/2015) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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NICOLA COLELLA, on behalf of himself and
classes of those similarly situated, et al.,
Plaintiffs,
MEMORANDUM DECISION
AND ORDER

-againstNEW YORK CITY TRANSIT AUTHORITY and
MANHATTAN AND BRONX SURF ACE
TRANSIT OPERA TING AUTHORITY,

12 Civ. 6041 (GBD) (MHD)

Defendants.
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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. (Comp!., ECF No. 1.)
Defendants move under Federal Rule of Civil Procedure 37(b)(2)(A) and Rule 37(d)(l)(A)(i) to
dismiss opt-in plaintiff Michael Outlar based on his failure to appear for his duly noticed
deposition. (Mot., ECF No. 128; Mem. in Support ofMTD, ECF No. 129.) 1 At a March 13, 2015
telephone conference with Magistrate Judge Michael H. Dolinger, Plaintiffs' counsel represented
that PlaintiffOutlar had not communicated with counsel since January 27, 2015 and that they were
withdrawing their objection to Defendants' motion to dismiss as it pertained to this particular
plaintiff.2 On March 16, 2015, Magistrate Judge Dolinger issued a Report and Recommendation
("Report") in which he recommended that Defendants' motion be granted insofar as Plaintiff

1

Defendants initially moved to dismiss Plaintiff Robert Watkis in addition to Plaintiff Outlar; however, they have
since withdrawn their motion as to Plaintiff Watkis. (See Reply, ECF No. 135 at 1.)
2

(See March 16, 2015 Report and Recommendation at 2, ECF No. 140.)

Outlar should be dismissed for his failure to appear at his deposition and to cooperate with
Plaintiffs' counsel. (See Report at 2, ECF No. 140.)
Having reviewed the Report for clear error, 3 this Court adopts the Report's
recommendation in full.

Plaintiff Michael Outlar is hereby DISMISSED as a named opt-in

plaintiff from this action. The Clerk of the Court is directed to close the motion at ECF No. 128.

Dated: New York, New York
March 17, 2015
SO ORDERED.

United States District Judge

3

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, 711F.2d619,
620 (5th Cir. 1983)). When no party files objections to a 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).

2