United States District Court, S.D. New York
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
KATHERINE POLK FAILLA, District Judge.
Pending before the Court is the Amended Report and Recommendation of United States Magistrate Judge Ronald L. Ellis, dated June 6, 2014 (the "Report"). (Dkt. #192). In the Report, Judge Ellis recommends that this Court dismiss with prejudice the Fair Labor Standards Act ("FLSA") claims of five sample Opt-In Plaintiffs who did not comply with the Court's Order of June 27, 2013 (the "Non-Compliant Opt-In Plaintiffs"). No party has filed an objection to the Report. For the reasons set forth below, the Court adopts the Report in its entirety.
On August 6, 2010, Plaintiff Digna Ruiz filed a nationwide collective action under the FLSA and a statewide class action under the New York Labor Law, on behalf of current and former personal bankers employed by Citibank. (Dkt. #1). On February 9, 2012, the Honorable John G. Koeltl, the United States District Judge to whom the matter was previously assigned (Dkt. #131), conditionally certified the FLSA collective action (Dkt. #82). On October 15, 2012, Judge Koeltl granted Plaintiffs' request to preclude discovery from each of the Opt-In Plaintiffs, ordering that initial discovery - concerning Plaintiffs' anticipated motion to certify a class under Federal Rule of Civil Procedure 23 and Defendant's anticipated motion to decertify the FLSA collective action - proceed only as to a sample of Opt-In Plaintiffs. (Dkt. #123). The parties agreed that there would be 30 such sample Plaintiffs, with 15 chosen by Plaintiffs and 15 chosen by Defendant (Dkt. #144), and that the sample Plaintiffs' responses to Defendant's discovery requests would be due by February 25, 2013 (Dkt. #133).
On June 27, 2013, the case was reassigned to the undersigned. (Dkt. #131). By that date, six Opt-In Plaintiffs from the sample group still had not responded to discovery requests: Brian Araujo, Eliyahu Lederman, Ethel Lindsey, Matthew Nyden, Hemrajie Persaud, and Ting Yen Wang. (Dkt. #133). On June 27, 2013, Judge Ellis ordered these Opt-In Plaintiffs to respond to the outstanding discovery requests by July 29, 2013, and warned that failure to do so might result in the dismissal of their claims with prejudice. ( Id. ). On October 28, 2013, Defendant informed Judge Ellis that only Ethel Lindsey had subsequently responded, and requested that the remaining five Non-Compliant Opt-In Plaintiffs be dismissed from the case for failure to comply with the June 27 Order. (Dkt. #144).
Plaintiffs responded on November 6, 2013, that "dismissal as a sanction for failure to comply with discovery is an extreme sanction, particularly where, as here, Defendant may select an alternative opt-in plaintiff to serve as a representative for the sample group." (Dkt. #148). Plaintiffs then requested that, if Judge Ellis did grant Defendant's request, he dismiss only the FLSA claims and not the state law claims. ( Id. ).
On June 6, 2014, Judge Ellis issued the Report, recommending that Defendant's motion be granted with respect to the FLSA claims of the Non-Compliant Opt-In Plaintiffs, and denied with respect to any other claims. (Report 4). The Report, pursuant to Federal Rule of Civil Procedure 72, directed the parties to file any written objections to the Report with the Court within 14 days from the date the Report was issued, and informed the parties that the failure to file timely objections would result in a waiver of those objections and would preclude appellate review. (Report 5). Objections to the Report were due by June 20, 2014. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 72(b)(2). No objections were filed.
A. The Standard of Review
When a district court assesses the report and recommendation of a magistrate judge, the 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)(1). The court reviews de novo any portions of a magistrate judge's report and recommendation to which a party submits a timely objection. Id. "To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (internal quotation marks and citation omitted), aff'd, 453 F.App'x 88 (2d Cir. 2011) (summary order); see also Brown v. Time Warner Cable, Inc., No. 10 Civ. 8469 (AJN) (RLE), 2012 WL 5878751, at *1 (S.D.N.Y. Nov. 21, 2012); Gomez v. Brown, 655 F.Supp.2d 332, 341 (S.D.N.Y. 2009).
A party's failure to object to a report and recommendation, after receiving clear notice of the consequences of such a failure, operates as a waiver of the party's right both to object to the report and recommendation and to obtain appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992).
1. The Parties Have Waived Their Right to Object to, and to Obtain Appellate Review of, the Report
As noted, Judge Ellis informed the parties that they had 14 days after being served with a copy of the Report to file any objections, and warned that failure to file a timely objection would result in a waiver of the right to do so, and a waiver of the right to object on appeal. (Report 5). Having received clear notice of the consequences of remaining silent, and having neither filed objections nor requested extensions of time in which to do so, the parties have waived their right to object to the Report and their right to obtain appellate review of the Report. See Li Ping Fu v. Pop Art Int'l, Inc., No. 10 Civ. 8562 (DLC), 2011 WL 6092309, at *2 (S.D.N.Y. Dec. 7, 2011) (identifying that "[t]he parties' failure to file written objections precludes ...