Collado v. Donnycarney Restaurant L.L.C. et al

Filing 35

MEMORANDUM DECISION AND ORDER for 29 Motion for Miscellaneous Relief filed by Ramon Collado, 34 Report and Recommendations. For the reasons provided in the Report, Defendants DonnyCarney Restaurant L.L.C. and Paul Desmond Hurley are jointly a nd severally liable to Plaintiff in the amount of $84,657.58, plus pre-judgment interest beginning on August 11, 2015 through the date of Judgment, followed by post-judgment interest to be calculated by the Clerk of the Court in accordance with 28 U.S.C. § 1961 (b). The Report correctly determined that no damages should be assessed against the other named defendants because "there is no legal basis for concluding that the other restaurant defendants are plaintiffs employers and no legal basis for assessing damages against them." (Id. at 37; see also id. at 36, 38.) The default judgment is therefore vacated as to the following defendants: Clonmel Restaurant Corp.; Portmarnock Restaurant Corp.; Connemara Restaurant Corp.; Pier 45 Restaurant Inc.; and GBL Restaurant Corp. The Clerk of the Court is instructed to close the motion at ECF No. 29 and this case. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 8/10/2015) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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/·

RAMON COLLADO, on behalf of himself and
others similarly situated,
Plaintiffs,
AND ORDER

l

-against-

1

14 Civ. 3899 (GBD)(HBP)
DONNYCARNEY RESTAURANT L.L.C.,
doing business as O'CASEY's; CLONMEL
RESTAURANT CORP., doing business as PD
O'HURLEY'S; PORTMARNOCK
RESTAURANT CORP., doing business as
DESMOND'S STEAK HOUSE & GRILL;
CONNEMARA RESTAURANT CORP.,
doing business as KENNEDY'S and/or
DESMOND'S; PIER 45 RESTAURANT INC.,
doing business as HUDSON RIVER PARK
CAFE; GBL RESTAURANT CORP., doing
business as KENNEDY'S; PAUL DESMOND
HURLEY, in his individual and professional
capacities,
Defendants.
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GEORGE B. DANIELS, District Judge:
Plaintiff, Ramon Collado, on behalf of himself and others similarly situated, brought this
case pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and New York
Labor Law Sections 191 et seq. to recover unpaid wages and overtime compensation, liquidated
damages, pre-judgment and post-judgment interest, statutory damages, and attorneys' fees and
costs. 1 This Court entered a default judgment in this matter on September 8, 2014, (see ECF No.
22), and referred this matter to Magistrate Judge Hemy Pitman to conduct an inquest concerning

1

Plaintiff is only seeking compensation for his individual claims. (See Report, (ECF No. 29), at 3 n. l .)

1

Plaintiffs' damages. (See ECF No. 23.) This Court received the Report and Recommendation
("Report") on July 24, 2015. (Report, (ECF No. 29).) This Court now adopts the Report in full.
Accordingly, Plaintiff is entitled to damages and fees in the amounts reflected in the Report and
below. 2
The Court "may accept, reject, or modify, in whole or in part, the findings or
recommendations" set forth within the Report. See 28 U.S.C. § 636(b)(l)(C). When parties object
to the Report, the Court must review de nova those portions of the Report to which objections are
made. Id. 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, "[i]t is sufficient that the district court 'arrive at
its own, independent conclusion about those portions of the magistrate's report to which objection
is made."' Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 2005) (quoting Hernandez v.

Estelle, 711F.2d619, 620 (5th Cir. 1983)). When the parties make no objections to the 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) (citation omitted). No party has
objected to the Report, and the time to do so has passed. (See Report at 38-39 (citing Fed. R. Civ.
P. 72(b) and 28 U.S.C. § 636(b)(l)(c)).)
This Court agrees with the factual findings and conclusions of law in the Report. For the
reasons articulated in the Report, Plaintiff is entitled to the following:
Wages & Overtime Compensation: $23,840.76
Liquidated Damages: $33,069.12
Pre-judgment Interest: $3,846.61
Statutory Damages: $2,500.00
Post-judgment Interest: At the rate authorized by 28 U.S.C. § 1961(b).

2

The facts and procedural history are laid out in greater detail in the Report. (See id. at 1-10.)

2

Attorneys' fees: $20,024.50
Costs: $1,376.59
Total: $84,657.58, plus $2.12 per day in pre-judgment interest, and post-judgment interest as
described in the Report and above. 3
CONCLUSION

For the reasons provided in the Report, Defendants DonnyCarney Restaurant L.L.C. and
Paul Desmond Hurley are jointly and severally liable to Plaintiff in the amount of $84,657.58, plus
pre-judgment interest beginning on August 11, 2015 through the date of Judgment, followed by
post-judgment interest to be calculated by the Clerk of the Court in accordance with 28 U.S.C. §
1961 (b ). 4
The Clerk of the Court is instructed to close the motion at ECF No. 29 and this case.
Dated: New York, New York
August 10, 2015
SO ORDERED:

United States District Judge

3

The Report found that Plaintiff is entitled to $3,840.25 in pre-judgment interest calculated through August
7, 2015, as well as $2.12 per day in pre-judgment interest thereafter through entry of judgment. The
above figure accounts for the additional prejudgment interest for August 8, 2015 through today, August
10, 2015. An additional $2.12 per day shall be added to the total amount until the Clerk of the Court
enters the final judgment.

4

The Report correctly determined that no damages should be assessed against the other named defendants
because "there is no legal basis for concluding that the other restaurant defendants are plaintiffs
employers and no legal basis for assessing damages against them." (Id. at 37; see also id. at 36, 38.) The
default judgment is therefore vacated as to the following defendants: Clonmel Restaurant Corp.;
Portmarnock Restaurant Corp.; Connemara Restaurant Corp.; Pier 45 Restaurant Inc.; and GBL
Restaurant Corp. (See id. at 36-38.)

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