United States District Court, E.D. New York
& Associates, P.C. Attorneys for the Plaintiff By: Neil
Frank, Esq., Alyssa T Marino, Esq., Brian Bodansky, Esq.,
Patricia Lynne Boland, Esq., Of Counsel.
Gruenberg Kelly Della Co-Counsel for the Defendants By: Glenn
E Auletta, Esq., Sean Patrick Kelly, Esq., Zachary M
Beriloff, Esq., Of Counsel.
MEMORANDUM OF DECISION AND ORDER
D. SPATT United States District Judge.
a jury trial, the Defendants Dream Team Tavern Corp. d/b/a
Tommy's Place and Thomas Schafer (collectively,
“the Defendants”), were found liable under the
New York State labor laws for failure to pay the Plaintiff
Efrain Reyes Cabrera (the “Plaintiff”) wages for
his “spread of hours.” The jury found that the
Defendants were not liable under Fair Labor Standards Act, 29
U.S.C. 201, et seq. (the “FLSA”) and New
York State labor laws for failing to pay the Plaintiff
overtime or for failing to provide the Plaintiff with pay
stubs. The Plaintiff moved for attorneys' fees and costs,
and the Court referred the motion to Magistrate Judge A.
Kathleen Tomlinson. Judge Tomlinson recommended that the
Court award the Plaintiff $34, 488.50 in attorneys' fees
and $350 in costs.
before the Court are the Defendants' objections to Judge
Tomlinson's February 17, 2017 Report and Recommendation
(the “R&R”) pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.” or
“Rule”) 72. For the following reasons, the Court
finds that the Defendants' objections are either
conclusory or duplicative of arguments they made in their
original memorandum of law. The Court therefore reviews the
R&R therefore for clear error; finds no clear error; and
adopts the R&R in its entirety.
The Defendants' Objections to the R&R
Defendants made five numbered objections to the R&R.
First, they objected to any consideration of the counsel for
the Plaintiff's time records because the Defendants
contend that they were not authenticated and therefore
inadmissible. Second, the Defendants argue that the lodestar
figure presented by the Plaintiff's attorney should have
been reduced because of the Plaintiff's limited success
at trial. Third, the Defendants believe that the Court should
have reduced the Plaintiff's attorneys' proffered
hours by 70% instead of 30% because the hours were vague,
duplicative, and unsupported. Fourth, the Defendants argued
that the attorneys' fees were not reasonable. Fifth, the
Defendants opined that the Plaintiff's counsel should not
be afforded an opportunity to provide an affidavit regarding
Plaintiff did not make any specific written objections to the
R&R, nor did the Plaintiff's counsel file an
affidavit of costs within fourteen days of the R&R
The Standard of Review
district court reviewing a magistrate judge's report and
recommendation “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)(C).
Parties may raise objections to the magistrate judge's
report and recommendation, but they must be “specific,
” “written, ” and submitted “[w]ithin
14 days after being served with a copy of the recommended
disposition.” Fed.R.Civ.P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). A district court must conduct a
de novo review of those portions of the R&R or
specified proposed findings or recommendations to which
timely and proper objections are made. 28 U.S.C. §
636(b)(1)(C); see Fed. R. Civ. P. 72(b)(3)
(“The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with
instructions.”). The district court may adopt those
portions of a report and recommendation to which no timely
objections have been made, provided no clear error is
apparent from the face of the record. Lewis v. Zon,
573 F.Supp.2d 804, 811 (S.D.N.Y. 2008); Nelson v.
Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985).
addition, “[t]o the extent . . . that the party makes
only conclusory or general arguments, or simply reiterates
the original arguments, the Court will review the [R&R]
strictly for clear error.” IndyMac Bank, F.S.B. v.
Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008
WL 4810043, at *1 (S.D.N.Y. Oct. 31, 2008); see also Toth
v. N.Y. City Dep't of Educ., No. 14CV3776SLTJO, 2017
WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing
courts should review a report and recommendation for clear
error where objections are merely perfunctory responses,
argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original
petition.” (quoting Ortiz v. Barkley, 558
F.Supp.2d 444, 451 (S.D.N.Y. 2008))). “The goal of the
federal statute providing for the assignment of cases to
magistrates is to increase the overall efficiency of the
federal judiciary.” McCarthy v. Manson, 554
F.Supp. 1275, 1286 (D. Conn. 1982), aff'd, 714
F.2d 234 (2d Cir. 1983) (quoting Nettles v.
Wainwright, 677 F.2d 404, 410 (Former 5th Cir. 1982) (en
banc)) (footnote omitted). “There is no increase in
efficiency, and much extra work, when a party attempts to
relitigate every argument which it presented to the
Magistrate Judge.” Toth, 2017 WL 78483, at *7
(quoting Camardo v. Gen. Motors Hourly-Rate Employees
Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992)).
question whether a party may raise a new legal argument for
the first time in objections to a magistrate judge's
report and recommendation has not yet been decided in this
Circuit.” Levy v. Young Adult Inst., Inc., 103
F.Supp.3d 426, 433 ...