United States District Court, Southern District of New York
March 17, 2015
NICOLA COLELLA, on behalf of himself and classes of those similarly situated, et al., Plaintiffs,
NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States 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)(A) and Rule
37(d)(1)(A)(i) to dismiss opt-in plaintiff Michael Outlar based on his failure to appear for his duly noticed deposition. (Mot., ECF No. 128; Mem. in Support of MTD, ECF No. 129.) At a March 13, 2015 telephone conference with Magistrate Judge Michael H. Dolinger, Plaintiffs' counsel represented that Plaintiff Outlar had not communicated with counsel since January 27, 2015 and that they were withdrawing their objection to Defendants' motion to dismiss as it pertained to this particular plaintiff. On March 16, 2015, Magistrate Judge Dolinger issued a Report and Recommendation ("Report") in which he recommended that Defendants' motion be granted insofar as Plaintiff Outlar should be dismissed for his failure to appear at his deposition and to cooperate with Plaintiffs' counsel. (See Report at 2, ECF No. 140.)
Having reviewed the Report for clear error,  this Court adopts the Report's recommendation in full. Plaintiff Michael Outlar is hereby DISMISSED as a named opt-in plaintiff from this action. The Clerk of the Court is directed to close the motion at ECF No. 128.