Opinion
20 Civ. 9437 (PAE) (GWG)
07-13-2022
ALIRIO ZAVALA, JUAN CARLOS DIAZ, ALEXANDER GONZALEZ, JAUME VILLAGRASA, LUIS TORRES, JOSE BRICENO, LUCIANO EMIGDIO, NICOLAS VELASQUEZ, GUSTAVO RANGEL, ARODIS HERRERA, JORGE GUERRERO, SEGUNDO MORALES MARTINEZ, SAHAGUN MEREJILDO, JAIME GRANADA, JOHN JAMIE RIVERA ALAYON, ANDRES TORRES, ERNESTO ALEJANDRO SANCHEZ, and EDUARDO CRUZ GONZALEZ, Plaintiffs, v. PEI ELECTRICAL SERVICES GROUP INC., CPI ELECTRICAL SERVICES INC., TOP SHELF ELECTRIC CORP., and PABLO IBEPAULINO, Defendants.
OPINION & ORDER
PAUL A. ENGELMAYER, United States District Judge.
On October 11,2020, plaintiffs Alirio Zavala, Juan Carlos Diaz, Alexander Gonzalez, Jaume Villagrasa, Luis Torres, Jose Briceno, Luciano Emigdio, Nicolas Velasquez, Gustavo Rangel, Arodis Herrera, Jorge Guerrero, Segundo Morales Martinez, Sahagun Merejildo, Jaime Granada, John Jamie Rivera Alayon, Andres Torres, Ernesto Alejandro Sanchez, and Eduardo Cruz Gonzalez brought this case, alleging violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq, (“FLSA”), and the New York Labor Law “NYLL”), against defendants PEI Electrical Services Group Inc., CPI Electrical Services Inc., Top Shelf Electric Corp. (“Top Shelf'), and Pablo Ibepaulino. Dkt. 1. On November 13, 2020, this Court referred this case to the Hon. Kevin Nathaniel Fox, United States Magistrate Judge, for general pretrial supervision. Dkt. 14. On December 2, 2021, this case was reassigned to the Hon. Gabriel W. Gorenstein, United States Magistrate Judge, referred for a dispositive motion. Dkt. 72.
Currently pending is Top Shelf s motion for summary judgment, seeking to dismiss all claims against them. Dkts. 80 (“Mem.”), 81-84. Before the Court now is the June 28, 2022 Report and Recommendation of Judge Gorenstein, recommending that the Court deny the motion for summary judgment, on the ground that a reasonable jury could find that Top Shelf was plaintiffs' joint employer. Dkt. 105 (“Report”). The Court incorporates by reference the summary of the facts provided in the Report. For the following reasons, the Court adopts the Report's recommendation.
DISCUSSION
In reviewing a Report and Recommendation, a district court “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). “To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Ruiz v. Citibank N.A., No. 10 Civ. 5950 (KPF), 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19, 2014) (quoting King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)); see also, e.g., Wilds v. United Parcel Serv., 262 F.Supp.2d 163,169 (S.D.N.Y. 2003).
As no party has submitted objections to the Report, review for clear error is appropriate. Careful review of Judge Gorenstein's thorough and well-reasoned Report reveals no facial error in its conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly states that “the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections” and that “[i]f a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal.” Report at 26-27. See Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec'y of Health & Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)).
CONCLUSION
For the foregoing reasons, the Court denies Top Shelf s motion for summary judgment. This terminates Judge Gorenstein's able pretrial supervision. The case will now proceed to trial. Should the parties wish to proceed before Judge Gorenstein, they are to jointly file, by July 27, 2022, a form consenting to Judge Gorenstein's jurisdiction, attached to this order. In the absence of receiving such a form, this Court will issue an order setting a date by which the parties are to file the required pretrial submissions as set forth under Rule 5 of this Court's Individual Rules and Practices in Civil Cases, and scheduling a final pretrial conference.
SO ORDERED.
NOTICE, CONSENT, AND REFERENCE OF A CIVIL ACTION TO A MAGISTRATE JUDGE
Notice of a magistrate judge's availability. A United States magistrate judge of this court is available to conduct all proceedings in this civil action (including a jury or nonjury trial) and to order the entry of a final judgment. The judgment may then be appealed directly to the United States court of appeals like any other judgment of this court. A magistrate judge may exercise this authority only if all parties voluntarily consent.
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Reference Order
IT IS ORDERED: This case is referred to a United States magistrate judge to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
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