The opinion of the court was delivered by: VICTOR MARRERO, District Judge
By Order dated September 27, 2005, Magistrate Judge Kevin N.
Fox, to whom this matter had been referred for pretrial
supervision, issued a Report and Recommendation (the "Report")
recommending that the Court grant the application of plaintiff
Elena Zumba ("Zumba") made pursuant to Fed.R.Civ.P. 41(a)(2)
to withdraw as a plaintiff in this action. The Report further
recommended that the withdrawal be conditioned upon Zumba's
providing defendants with her address so that, in the event it
became necessary to do so during the course of the remaining
litigation, a subpoena may be served upon her to compel her
attendance at a deposition or at the trial of this action.
Zumba's counsel filed a timely response objecting to this
condition on the ground that counsel never had Zumba's address or
knowledge of her whereabouts.
A district court evaluating a Magistrate Judge's report may
adopt those portions of the report to which no "specific, written
objection" is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those
sections are not clearly erroneous. See Fed.R.Civ.P. 72(b);
Thomas v. Arn, 474 U.S. 140, 149 (1985); Greene v. WCI Holding
Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "Where a party
makes a `specific written objection' within `[ten] days after
being served with a copy of the [magistrate judge's] recommended
disposition,' however, the district court is required to make a
de novo determination regarding those part of the report."
Cespedos v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997)
(quoting United States v. Raddatz, 447 U.S. 667, 676 (1980)). A
district judge may accept, reject, or modify, in whole or in
part, the findings and recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994);
Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
The Court finds that the facts set forth in the Report are
supported by the record and are thus incorporated herein by
reference. Having conducted a review of the full record,
including, among other things, the Report and applicable legal
authorities, the Court finds the findings, reasoning and legal
support for the recommendations made in Report are not clearly
erroneous. Insofar as Zumba's counsel objects to the condition
the Magistrate Judge recommended, upon full review of the
circumstances the Court finds the provision appropriate, and well
within the discretion of the Court to impose. See Zimpro Inc.
v. United States Environmental Prot. Ag., 83 F.R.D. 302, 303
(N.D.N.Y. 1979). Counsel should provide defendants whatever may
be the latest contact information they have for Zumba. The Court also adopts Zumba's attorneys'
proposal that they accept service of any deposition or trial
subpoena on Zumba's behalf should one be served. Counsel should
also undertake to forward any such subpoena to Zumba in the event
her whereabouts become known to them.
For the reasons discussed above, it is hereby
ORDERED that the Report and Recommendation of Magistrate
Judge Kevin Fox dated September 27, 2005 (Docket No. 127) is
adopted in its entirety, and the motion of plaintiff Elena Zumba
to withdraw from this action without prejudice (Docket No. 67) is
In this action, brought under, inter alia, the Fair Labor
Standards Act, the plaintiff Elena Zumba ("Zumba"), who joined
the action as a party when the plaintiffs amended their original
complaint, has made an application, pursuant to
Fed.R.Civ.P.41(a)(2), that she be permitted to withdraw as a
plaintiff in this action. According to a declaration filed by
Haeyoung Yoon, Esq., counsel to the plaintiffs, Zumba has
determined that, "based upon her personal circumstances . . . she
no longer wishes to pursue this litigation."
Defendant Nam-Hi Lee ("Lee") is the only defendant in the
action who opposes Zumba's application, notwithstanding the fact
that counsel to the plaintiffs has submitted a facsimile copy of
a stipulation executed by Lee through which she agreed that Zumba
could withdraw as a plaintiff in the action. Lee now denies that
she executed the stipulation and urges the court to deny the
instant application because she wishes to examine Zumba orally at
Fed.R.Civ.P.41(a)(2), in its most pertinent part, informs that
"an action shall not be dismissed at the plaintiff's instance,
save upon order of the court, and upon such terms and conditions as the court deems proper." The determination to grant
an application for dismissal without prejudice, such as has been
made by Zumba, is left to the discretion of the court. Zimpro
Inc. v. United States Environmental Protection Agency,
83 F.R.D. 302, 303 (N.D.N.Y. 1979). "Although voluntary dismissal without
prejudice is not a matter of right . . . the presumption in this
circuit is that a court should grant a dismissal pursuant to
[Fed.R.Civ.P.] 41(a)(2) ...