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Colella v. New York City Transit Authority

United States District Court, S.D. New York

March 3, 2015

NICOLA COLELLA, on behalf of himself and I classes of those similarly situated, et al., Plaintiffs,


GEORGE B. DANIELS, District Judge.

Plaintiffs bring this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq., seeking to recover unpaid compensation allegedly due. (Compl., ECF No. 1.) Defendants move under Federal Rule of Civil Procedure 37(b)(2) to dismiss certain "noncompliant" opt-in plaintiffs, and for an award of attorneys' fees and costs incurred in connection with this motion. (Mot., ECF No. 101.) On December 2, 2014, Magistrate Judge Michael H. Dolinger issued a Report and Recommendation ("Report") in which he recommended that defendants' motion be granted for twenty out of the twenty-one opt-in plaintiffs at issue, and that the request for attorneys' fees and costs be denied. ( See Report at 11, 20, ECF No. 114.) This Court adopts the Report's recommendations to dismiss nineteen of the plaintiffs.


Between April 17 and August 20, 2014, defendants served interrogatories and requests for production upon the opt-in plaintiffs. [1] (Report at 2.) During a conference with the parties, Magistrate Judge Dolinger set October 3, 2014 as the deadline for the provision of full discovery responses because plaintiffs had not responded to these requests. ( See id. at 3.) At this conference, Magistrate Judge Dolinger expressly stated that he would likely recommend dismissal of the uncooperative plaintiffs if discovery responses were not timely served by this date. ( Id. at 3.)[2] Despite plaintiffs' counsel's efforts to contact the opt-in plaintiffs, the defendants' requests went unanswered, and defendants subsequently moved to dismiss these optin plaintiffs. ( Id. at 3-4.)


This Court may accept, reject, or modify, in whole or in part, the findings set forth in the Report. 28 U.S.C. § 636(b)(l)(C). When there are objections to the Report, the Court must make a de nova determination of those portions of the Report to which objections are made. Id. ; see also Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court "arrive at its own, independent conclusion" regarding those portions of the Report to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When no party files objections to a Report, the Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quotation omitted).

Magistrate Judge Dolinger advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Report at 22-23); see also 28 U.S.C. § 636(b)(l); Fed.R.Civ.P. 72(b). Plaintiffs' counsel timely filed objections to the Report, contesting the recommendation to dismiss six opt-in plaintiffs: Andres Gonzalez, Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raino, and Ignacio Tiongson. ( See Pl.'s December 15, 2014 Objections ("Obj. I") ¶¶ 7, 10-11, ECF No. 118.) Plaintiffs' counsel contends that Andres Gonzalez should not be dismissed from this action because, following an initial misunderstanding, Mr. Gonzalez "immediately responded to the discovery requests, " which were served on November 24, 2014. ( Id. ¶¶ 7, 10.) Additionally, plaintiffs' counsel argues that the other five opt-in plaintiffs should likewise not be dismissed because these plaintiffs "should be given similar leeway in the event that they too had any confusion (through no fault of their own) regarding discovery and their obligations in this case." ( Id. ¶ 11 (emphasis added).) In response, defendants argue that this Court should review the Report for clear error in light of plaintiffs' conclusory objections, and that the Report should be adopted in full. (Def.'s Reponse to Objections ("Obj. II) ¶¶ 9-10, 13, ECF No. 121.)

Plaintiffs' vague objections concerning Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raino, and Ignacio Tiongson do not meet the criteria for de nova review. The objections merely suggest that a misunderstanding may have prevented these five opt-in plaintiffs from satisfying their discovery obligations. They offer no specific explanation regarding the substance of any potential misunderstandings, let alone when these plaintiffs would comply with the outstanding discovery requests. This Court therefore reviews the Report for clear error. See Berman v. Neo@Oglivy LLC, No. 1:14-cv-523-GHW-SN, 2014 WL 6860583, at *2 (S.D.N.Y. Dec. 5, 2014) (internal quotation marks omitted) ("To accept those portions of the report to which no objection has been made, or where a party makes only conclusory or general objections, or simply reiterates his original arguments, a district court reviews the report only for clear error.") However, because plaintiffs' objections concerning Andres Gonzalez are "clearly aimed at" the Report's recommendation to dismiss, and raise an argument based on facts that were not before the Magistrate Judge, this Court will review the Report's recommendation as to Mr. Gonzalez de nova. See id.


Magistrate Judge Dolinger correctly recommended that fourteen of the opt-in plaintiffs should be dismissed from this case. ( See Report at 11.) These plaintiffs informed plaintiffs' counsel that they now wish to opt out, and plaintiffs do not object to their dismissal. ( Id. at 5; see also Obj. 1 ¶ 3.) Accordingly, plaintiffs Lester Haynes, Thomas Mascia, Michael Reid, Richard J. Dempsey, Efrain Ortiz, Jr., John A. Villa, Daniel Nadal, William Bennett, Thomas Scaccianoce, Antonio Bustillo, Vincent Crawford, Murshid Alladeen, Michael Cirminiello, and Dorothy DiMaggio, on behalf of the Estate of John DiMaggio, are hereby dismissed from this case.

Additionally, the Report found that plaintiff Steven Alesci should remain in this case because he ultimately responded to the discovery requests on November 12, 2014, and therefore the harsh remedy of dismissal was unwarranted. (Report at 18.) Defendants have indicated that "[t]here is no dispute regarding Magistrate Judge Dolinger's recommendation[] that Opt-In Plaintiff Steve[n] Alesci not be dismissed as a party plaintiff." (Obj. II ¶ 8 n.1.) As a result, this Court does not dismiss Steven Alesci from this case.


The Report recommended that the remaining six opt-in plaintiffs-Andres Gonzalez, Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio Tiongsonbe dismissed pursuant to Rule 37(b)(2)(A) for their "fail[ure] to obey an order to provide or permit discovery." ( See Report at 12-16.) This finding remains correct as to five of the six opt-in plaintiffs (Gladstone Dawson, Jasper Freeman, David Portalatin, Richard Raiano, and Ignacio Tiongson). These five plaintiffs should therefore be dismissed.

Under Rule 37(b)(2)(A), noncompliance with discovery orders can result in the court's issuance of "further just orders, " such as the "dismiss[al of] the action or proceeding in whole or in part." See Fed.R.Civ.P. 37(b)(2)(A)(v). "Imposing sanctions pursuant to Rule 37 is within the discretion of the district court[']...." World Wide Polymers, Inc. v. Shinkong Synthetic Fibers Corp., 694 F.3d 155, 159 (2d Cir. 2012) (quoting John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988)). In exercising this discretion, a district court considers several factors, including: "(1)the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance; and (4) whether the non-compliant party had been ...

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