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Colella v. New York City Transit Authority

United States District Court, S.D. New York

April 6, 2015

NICOLA COLELLA, on behalf of himself and classes of those similarly situated, et al., Plaintiffs,
v.
NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants.

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, Magistrate Judge.

TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.

Defendants in this collective action brought under the Fair Labor Standard Act, 29 U.S.C. § 201 et seq., have moved to dismiss with prejudice two more opt-in plaintiffs for non-participation, Messrs. Luis Corretjer and John DeGaglia. (See docket nos. 142-44). Plaintiffs' counsel do not oppose this request. (See Letter dated April 2, 2015 [attached below]). For this reason, and for reasons delineated in our reports and recommendations dated December 2, 2014 and March 16, 2015 (docket nos. 114 & 140), we recommend that defendants' motion be granted.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable George B. Daniels, Room 1310, 500 Pearl Street, New York, New York, XXXXX-XXXX, and to the undersigned, Room 1670, 500 Pearl Street, New York, New York, XXXXX-XXXX. Failure to file timely objections may constitute a waiver of those objections, both in the District Court and on later appeal to the United States Court of Appeals. See 28 U.S.C. § 636 (b) (1); Fed.R.Civ.P. 72, 6(a), 6(e); Thomas v. Arn, 474 U.S. 140 (1985); DeLeon v. Strack, 234 F.3d 84, 86 (2d. Cir. 2000) (citing Small v. Sec'y. of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).

This firm represents Plaintiffs in the referenced matter. As we informed Chambers this morning, both of the Plaintiffs who are the subject of the pending motion to dismiss, John DeGaglia and Luis Corretjer, have confirmed to our office that they no longer wish to participate in this lawsuit. Our office has been attempting to get further confirmation that they do not want to oppose the motion to dismiss and understand that their claims will be dismissed with prejudice. We have not received any responses from them to that inquiry despite multiple notifications and our specific instructions that if we did not hear otherwise by a date certain, which has since passed, we would notify the Court that we do not oppose the motion. Accordingly, this letter is to confirm that we do not intend to file an opposition to the motion to dismiss Plaintiffs John DeGaglia and Luis Corretjer.

If you have any questions ro need additional information, please do not hesitate to call. Thank you.


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