Opinion
14-CV-0253(JS)(AKT)
03-09-2015
JARRET ACEVEDO, Plaintiff, v. COOL POWER, LLC, DUKE SCHIDMER, and PETER TAORMINA, Defendants.
APPEARANCES For Plaintiff: Albert Adam Breud II, Esq. Firestone & Breud, P.L.L.C. 356 Veterans Memorial Highway, Suite 3 Commack, NY 11725 Robert Wisniewski, Esq. Robert Wisniewski & Associates P.C. 225 Broadway, Suite 1020 New York, NY 10007 For Defendants: Jeffrey S. Ettenger, Esq. Kaufman Dolowick Voluck & Gonzo LLP 135 Crossways Park Drive Woodbury, NY 11797
MEMORANDUM & ORDER
APPEARANCES
For Plaintiff:
Albert Adam Breud II, Esq.
Firestone & Breud, P.L.L.C.
356 Veterans Memorial Highway, Suite 3
Commack, NY 11725
Robert Wisniewski, Esq.
Robert Wisniewski & Associates P.C.
225 Broadway, Suite 1020
New York, NY 10007
For Defendants: Jeffrey S. Ettenger, Esq.
Kaufman Dolowick Voluck & Gonzo LLP
135 Crossways Park Drive
Woodbury, NY 11797
SEYBERT, District Judge:
Pending before the Court is (1) Plaintiff's motion for a default judgment (Docket Entry 17); and (2) Magistrate A. Kathleen Tomlinson's Report and Recommendation ("R&R"), recommending that this Court deny Plaintiff's motion and vacate the certificates of default entered against defendants (Docket Entry 29.) For the following reasons, the Court ADOPTS the R&R in its entirety.
BACKGROUND
Plaintiff Jarret Acevedo ("Plaintiff") commenced this action on January 13, 2014 against defendant Cool Power, LLC ("Cool Power") and defendants Duke Schmider and Peter (the "Individual Defendants" and together with Cool Power, "Defendants"). Plaintiff claims that Defendants failed to pay him overtime in violation of the Fair Labor Standards Act and the New York Labor Law. (See Compl. ¶¶ 94-96, 102-105.) In February 2014, Plaintiff filed affidavits of service affirming that the Summons and Complaint was properly served upon Cool Power and the Individual Defendants. (Docket Entries 6-9.) Defendants did not answer or otherwise respond to the Complaint, and Plaintiff requested that certificates of default be entered against them on June 5, 2014. (Docket Entries 11-13.) On June 9, 2014, the Clerk of the Court issued certificates of default against Cool Power and the Individual Defendants. (Docket Entry 14.)
On June 30, 2014, Plaintiff moved filed a motion requesting entry of a default judgment. (Docket Entry 17.) On July 2, 2014, the undersigned referred Defendant's motion to Magistrate Judge A. Kathleen Tomlinson to issue a Report and Recommendation on whether the motion should be granted. (Docket Entry 19.) On February 13, 2015, Judge Tomlinson issued her R&R recommending that the Court deny Plaintiff's motion for a default judgment and vacate the certificates of default entered against Defendants. (Docket Entry 29.)
DISCUSSION
In reviewing an R&R, a district court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). If no timely objections have been made, the "court need only satisfy itself that there is no clear error on the face of the record." Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (internal quotation marks and citation omitted).
Objections were due within fourteen days of service of the R&R. The time for filing objections has expired, and no party has objected. Accordingly, all objections are hereby deemed to have been waived.
Upon careful review and consideration, the Court finds Judge Tomlinson's R&R to be comprehensive, well-reasoned, and free of clear error, and it ADOPTS the R&R in its entirety.
CONCLUSION
Judge Tomlinson's R&R (Docket Entry 29) is ADOPTED in its entirety. Plaintiff's motion for a default judgment (Docket Entry 17) is DENIED and the Clerk of the Court is directed to VACATE the certificates of default (Docket Entry 14) entered against Defendants on June 9, 2014.
SO ORDERED.
/s JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: March 9, 2015
Central Islip, New York