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Enniss v. Absolute Home Health Care

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


January 10, 2006

WINSTON ENNISS, PLAINTIFF,
v.
ABSOLUTE HOME HEALTH CARE, INC., DEFENDANT.

The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge

MEMORANDUM AND ORDER

The Court has reviewed the parties' correspondence concerning plaintiff' s [Proposed] Order re FLSA Notice of Collective Action Pursuant to 29 U.S.C. § 216(b) (" Proposed Order").

In his letter of December 21, 2005, defense counsel suggests changes to Sections 1, 2, 3 and 4 of plaintiff' s Proposed Order, as well as to the Consent to Sue form. Plaintiff consents to all of defendant' s proposed changes except the proposed change to Section 2. See 12/22/05 Letter to the Court from Richard S. Corenthal. In that portion of the Notice describing the lawsuit, defendant would include a paragraph summarizing defendant' s opposition to plaintiff' s claims. In other FLSA and ADEA actions in this Circuit, courts have approved similar language in notices of collective action. See, e.g., Gjurovich v. Emmanuel' s Marketplace, Inc., 282 F.Supp.2d 91, 98 (S.D.N.Y. 2003); Schwed v. General Electric Co., 159 F.R.D. 373, 378 (N.D.N.Y. 1995). Plaintiff' s objection to defendant' s request is therefore overruled, and all of defendant' s proposed changes are approved.

In addition, the first paragraph of Section 10 of the Proposed Order should be amended to replace " Carol B. Amon" and " District Judge" with " Roanne L. Mann" and " Magistrate Judge," respectively. Judge Amon has referredthe issue of class notice to the undersigned magistrate judge, who has the authority to grant leave to circulate a collective action notice under the FLSA. See, e.g., Patton v. Thomson Corp., 364 F.Supp.2d 263, 265-66 (E.D.N.Y. 2005) (collecting cases); accord Mazur v. Olek Lejbzon & Co., No. 05 Civ. 2194(RMB)DF, 2005 WL 3240472, at *2 n.1 (S.D.N.Y. Nov. 30, 2005).

Plaintiff' s counsel is directed to promptly modify the Proposed Order consistent with this opinion and to file it via ECF for the Court' s signature.

SO ORDERED.

ROANNE L. MANN UNITED STATES MAGISTRATE JUDGE

20060110

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