Rahman et al v. Red Chili Indian Cafe, Inc. et al

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATION: As no objections to the Report were filed, the Court has reviewed Judge Moses's Report for clear error. The Court finds no error and thus adopts the well-reasoned Report in its entirety. It is therefor e ordered that Plaintiffs motion to strike is GRANTED and Defendants' Joint Answer and Affirmative Defenses is STRICKEN. Plaintiffs are instructed to move for default against Defendants no later than January 3, 2020. The Clerk of Court is resp ectfully directed to terminate the motion pending at Dkt. 51 and mail a copy of this Order to Defendants Mohammed Mojnu Miah and Noor Islam. SO ORDERED. (Signed by Judge Ronnie Abrams on 12/5/2019) (jca) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: Il /S ( r

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MAHFUJUR RAHMAN and LITON SHAH,
Plaintiffs,
V.

17-CV-5156 (RA)

RED CHILI INDIAN CAFE, INC.,
MOHAMMED MOJNU MIAH a/k/a
SHEIKH MOHAMMED MOJNU, and
NOOR ISLAM, a/k/a MOHAMMED
HARUNMIAH,

ORDER ADOPTING REPORT AND
RECOMMENDATION

Defendants.

RONNIE ABRAMS, United States District Judge:
On July 7, 2017, Plaintiffs Mahfujur Rahman and Li ton Shah ("Plaintiffs") filed this action,
seeking relief under the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL").
Dkt. 1. On August 14, 2017, Plaintiffs filed an Amended Complaint. Dkt. 19. Plaintiffs named
as defendants Red Chili Indian Cafe, Inc. ("Red Chili"), Mohammed Mojnu Miah, and Noor Islam.
On September 22, 2017, Defendants Miah and Islam ("Defendants"), proceeding prose, filed a
Joint Answer and Affirmative Defenses. 1 Dkt. 26. The case was referred to Magistrate Judge
Henry B. Pitman for general pretrial management on April 19, 2018. Dkt. 39. On April 12, 2019,
Plaintiffs filed a letter with this Court, seeking a pre-motion conference to address Defendants'
"deficient discovery responses" and violation of an October 5, 2019 Order signed by Judge Pitman.
Dkt. 49. The Court granted Plaintiffs leave to file a motion to strike Defendants' Joint Answer

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Red Chili has not answered or otherwise appeared in this action. Moreover, Red Chili has been advised several
times that "a corporation may not appear in a lawsuit against it except through an attorney, and that, where a
corporation repeatedly fails to appear by counsel, a default judgment may be entered against it" pursuant to Federal
Rule of Civil Procedure 55. Grace v. Bank Leumi Trust Co. of NY, 443 F. 3d 180, 192 (2d Cir. 2006) (citation
omitted); see Dkts. 28, 30, 34.

and Affirmative Defenses. Dkt. 50. On May 1, 2019, Plaintiffs filed their motion to strike, see
Dkt. 51, which was referred to Magistrate Judge Barbara C. Moses for a report and
recommendation.

On July 12, 2019, Judge Moses issued a report and recommendation (the

"Report"), recommending that Plaintiffs' motion be granted, Defendants' Joint Answer and
Affirmative Defenses be stricken, and Plaintiffs be instructed to move for a default judgment
against Defendants in accordance with the local rules and Attachment A to this Court's Individual
Rules & Practices. Neither party filed objections to the Report. 2
A district court "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). Parties may object to a
magistrate judge's recommended findings "[w ]ithin 14 days after being served with a copy of the
recommended disposition." Fed. R. Civ. P. 72(b)(2). That deadline is extended to 17 days when
service is made by mail. See Fed. R. Civ. P. 6(d). "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.'" Smith

v. Corizon Health Servs., No. 14-CV-8839 (GBD) (SN), 2015 WL 6123563, at *1 (S.D.N.Y. Oct.
16, 2015) (quoting Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250,253 (S.D.N.Y. 2005)).
"Furthermore, if as here ... the magistrate judge's report states that failure to object will preclude
appellate review and no objection is made within the allotted time, then the failure to object
generally operates as a waiver of the right to appellate review." Hamilton v. Mount Sinai Hosp.,
331 F. App'x 874, 875 (2d Cir. 2009) (citations omitted).
As no objections to the Report were filed, the Court has reviewed Judge Moses's Report
for clear error. The Court finds no error and thus adopts the well-reasoned Report in its entirety.
It is therefore ordered that Plaintiffs motion to strike is GRANTED and Defendants' Joint Answer

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According to the docket, a copy of the Report was mailed to Defendants on July 15, 2019. Plaintiffs' motion to
strike was also mailed to Defendants. See Dkt. 60.

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and Affirmative Defenses is STRICKEN. Plaintiffs are instructed to move for default against
Defendants no later than January 3, 2020. 3
The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 51 and
mail a copy of this Order to Defendants Mohammed Mojnu Miah and Noor Islam.
,,

SO ORDERED.
Dated:

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December 5, 2019
New York, New York

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Ronnie Abrams
United States District Judge

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The Court notes that, as Defendant Red Chili has not answered or otherwise appeared in this action, Plaintiffs filed
a proposed clerk's certificate of default as to Red Chili on October 21, 2019. See Dkt. 64. However, Plaintiffs'
proposed clerk's certificate of default was rejected as deficient on November 7, 2019. Accordingly, Plaintiffs are
instructed to file a revised proposed clerk's certificate of default as to Red Chili, curing the deficiencies, no later than
December 13, 2019.

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