Colella v. New York City Transit Authority et al

Filing 146

MEMORANDUM DECISION AND ORDER: Adopting REPORT AND RECOMMENDATIONS 145 Report and Recommendations. Having reviewed the Report for clear error, this Court adopts the Report's recommendation in full. Plaintiffs Luis Corretjer and John DeGaglia are hereby DISMISSED as named opt-in plaintiffs from this action. The Clerk of the Court is directed to close the motion at ECF No. 142. SO ORDERED. Motions terminated: 142 MOTION to Dismiss NON-COMPLIANT OPT-IN PLAINTIFFS LUIS CORRETJER AND JOHN DEGAGLIA. filed by Manhattan and Bronx Surface Transit Operating Authority, New York City Transit Authority. (Signed by Judge George B. Daniels on 4/09/2015) (ama)

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UNITED ST ATES 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.,

f

.,•
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Plaintiffs,
MEMORANDUM DECISION

-against-

AND ORDER

NEW 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. (Compl., ECF No. 1.)
Defendants move under Federal Rule of Civil Procedure 37(b)(2)(A), Rule 37(d)(l)(A)(i), and
Rule 41 (b) to dismiss opt-in plaintiffs Luis Corretjer and John DeGaglia based on their failure to
appear for their duly noticed depositions and to respond to their attorneys. (Mot., ECF No. 142;
Mem. in Support ofMTD, ECF No. 143.) By letter dated April 2, 2015, Plaintiffs' counsel advised
Magistrate Judge Michael H. Dolinger that these two plaintiffs "have confirmed ... that they no
longer wish to participate in this lawsuit" and that Plaintiffs' counsel "d[id] not intend to file an
opposition to the motion to dismiss Plaintiffs John DeGaglia and Luis Corretjer." (Attachment 1
to April 6, 2015 Report and Recommendation, ECF No. 145.) On April 6, 2015, Magistrate Judge
Dolinger issued a Report and Recommendation in which he recommended that Defendants'
motion be granted due to these plaintiffs' non-participation. (See Report at 1, ECF No. 145.)

Having reviewed the Report for clear error, 1 this Court adopts the Report's
recommendation in full. Plaintiffs Luis Corretjer and John DeGaglia are hereby DISMISSED as
named opt-in plaintiffs from this action. The Clerk of the Court is directed to close the motion at
ECF No. 142.

Dated: New York, New York
April 9, 2015
SO ORDERED.

United States District Judge

1

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).

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