Pingatore et al v. Town of Johnston et al

Filing 25

ORDER adopting 21 Report and Recommendations; denying 15 Motion for Partial Summary Judgment; granting 17 Motion for Summary Judgment. So Ordered by Judge William E. Smith on 12/6/11. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
v.
)
)
TOWN OF JOHNSTON, et al.,
)
Defendants.
)
___________________________________)
DAVID PINGATORE, et al.,
Plaintiffs,

C.A. No. 11-068-S

ORDER
William E. Smith, United States District Judge.
The matter is before the Court on Defendants’ objection to
Magistrate Judge Lincoln D. Almond’s Report and Recommendation,
dated October 31, 2011.

(ECF No. 21.)

Magistrate Judge Almond

recommended that Plaintiffs’ motion for partial summary judgment
as to Fair Labor Standards Act (FLSA) liability be granted and
that Defendants’ cross-motion be denied.
such objections is de novo.

This Court’s review of

See Fed. R. Civ. P. 72(b)(3).

Upon careful review of the Report and Recommendation, it is
clear that Defendants’ objection is without merit.
press

the

same

arguments

and

case

law

as

they

Defendants
did

before

Magistrate Judge Almond -- namely, that the regular rate can be
stipulated by the parties.

These arguments remain unavailing.

See O’Brien v. Town of Agawam, 350 F.3d 279, 294 (1st Cir. 2003)
(“[T]he

regular

rate

cannot

be

stipulated

by

the

parties;

instead, the rate must be discerned from what actually happens
under the governing employment contract.”).
The Report and Recommendation of Magistrate Judge Lincoln
D. Almond, filed on October 31, 2011, is accepted pursuant to 28
U.S.C. § 636(b)(1).

Accordingly, Plaintiffs’ motion for partial

summary judgment is GRANTED; Defendants’ cross-motion is DENIED.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: December 6, 2011

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