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Jose v. Cherry Hill Market Corp. and Cherry Hill Gourmet

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


December 20, 2012

JOSE ENRIQUEZ, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND/OR DAVID ISAEV OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND DAVID ISAEV, PLAINTIFFS,
v.
CHERRY HILL MARKET CORP. AND CHERRY HILL GOURMET, INC. AND DAVID ISAEV AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY CHERRY HILL MARKET CORP. AND/OR CHERRY HILL GOURMET, INC. AND/OR DAVID ISAEV, DEFENDANTS.

The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

On October 22, 2012, Magistrate Judge Go issued a report and recommendation ("R&R") recommending that the Fair Labor Standards Act ("FLSA") claims of opt-in plaintiffs Emilio Yax Lopez, Salomon Castillo and Rosalyn Chavajay be dismissed due to those plaintiffs' failure to participate in discovery. The R&R recited that "[a]ny objections must be filed . . . by November 8, 2012," and that "[f]ailure to file objections within the specified time waives the right to appeal." R&R at 7. Plaintiffs' counsel received electronic notice of the R&R. To date, no objections have been filed.

If clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R&R without de novo review. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object, however, and conduct de novo review if it appears that the magistrate judge may have committed plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

The R&R contains no error, let alone plain error. Accordingly, the Court adopts it without de novo review.

SO ORDERED.

FREDERIC BLOCK Senior United States District Judge

20121220

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