Bowens v. Atlantic Maintenance Corp.

• Decision Date: 23 April 2008
• Docket Number: No. 06-CV-809 (NG)(CLP).,06-CV-809 (NG)(CLP).
• Citation: 546 F.Supp.2d 55
• Parties: Arquis BOWENS, individually and on behalf of others similarly situated, Plaintiff, v. ATLANTIC MAINTENANCE CORP., Defendant.
• Court: U.S. District Court — Eastern District of New York

546 F.Supp.2d 55

Arquis BOWENS, individually and on behalf of others similarly situated, Plaintiff, v. ATLANTIC MAINTENANCE CORP., Defendant.

No. 06-CV-809 (NG)(CLP).

United States District Court, E.D. New York.

April 23, 2008.

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Brian L. Bromberg, Bromberg Law Office, P.C., Seth R. Lesser, Fran L. Rudich, Locks Law Firm, PLLC, New York, NY, Jeffrey M. Gottlieb, Flushing, NY, for Plaintiff.

Israel E. Kornstein, Akerman Senterfitt LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

NINA GERSHON, District Judge:

On March 14, 2008, Magistrate Judge Cheryl L. Pollak issued a detailed and comprehensive fifty-six page Report and Recommendation ("R & R") on five separate motions made in this case. Judge Pollak advised the parties that any objections had to be filed within ten days and that "[f]ailure to file objections within the specified time waives the right to appeal the District Court's order. See 28 U.S.C. Section 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989)."

Defendant has filed what purport to be Objections to the R & R but which recite only that defendant objects to Judge Pollak's conclusions adverse to the defendant (for example, "Defendant objects to the Recommended Ruling on Plaintiffs motion for an Order of contempt based upon Magistrate Judge Pollak's December 6, 2006 Order, to the extent that it recommends that factual and legal findings adverse to Defendant be made, and Plaintiffs motion be granted") and which refer the court only to defendant's prior submissions and the transcripts. Plaintiffs, in response, state their disagreement with defendant's "conclusory objections."

Under Rule 72(b) of the Federal Rules of Civil Procedure, a party may object to a magistrate judge's report and recommendation by serving and filing "specific written objections." An objection of the sort made here does not constitute a specific written objection within the meaning of Rule 72(b). See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002). In Mario, the Court of Appeals found plaintiffs statement in his objections, with respect to his Title VII claim, "not specific enough to preserve this claim for review," where plaintiff said only that it was error to deny his motion on the Title VII claim "for the reasons set forth in Plaintiffs Memorandum of Law in Support of Motion for Partial Summary Judgment." Id. The Court held:

This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why, and unsupported, by legal authority, was not sufficient to preserve the Title VII claim. Merely referring the court to previously filed papers or arguments does not constitute an adequate objection under ... Fed.R.Civ.P. 72(b). ...

Id.

Thus, for the same reasons articulated `by the Court of Appeals, I consider all objections by defendant to have been waived. Indeed, the wisdom of the Court of Appeals' ruling is illustrated by the circumstances presented here. The magistrate judge's R & R was based both upon evidentiary findings after hearing witnesses and upon detailed, sophisticated legal analyses on a multitude of issues. To allow a party to trigger full de novo review by the district judge on the basis of the type of objections made here would make a mockery of the role of magistrate judges in fulfilling their important and well-recognized responsibilities. As the Supreme Court has noted, "[g]iven the bloated dockets that district courts have now come to expect as ordinary, the role of [magistrate judges] in today's federal judicial system is nothing less than indispensable." Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (quotation omitted). Rather than adding to the efficiency of the district courts, the magistrate judges' labors would be largely wasted if Rule 72(b)'s requirements were ignored.

Finally, while I do not waive the objections, cf. Mario, 313 F.3d at 766, I have reviewed the R & R for clear error on its face. See Urena v. People of the State of New York, 160 F.Supp.2d 606, 609-10 (S.D.N.Y.2001). Doing so, I find the R & R's factual findings and conclusions of law to be thorough and soundly based. Not only has Judge Pollak engaged in a comprehensive analysis of the applicable legal principles but she has done so with sensitivity to the underlying issues and to the particular factual circumstances presented in this case. I adopt her R & R in its entirety and therefore make the following rulings:

1. Plaintiffs' request for an order of contempt is denied but their request for sanctions is granted in that (a) to the extent that plaintiff Bowens or any other, of the putative class members, with the exception of Marti, may have received payment from defendant, they are permitted to retain their payments; (b) defendant is directed to disclose to plaintiffs any documents relating to communications between defendant and the putative class members; and (c) plaintiffs' counsel is awarded reasonable attorney's fees and costs incurred in connection with their motion for sanctions. The amount to be awarded is to be determined by Judge Pollak, who may set a schedule for the resolution of this issue.

2. Defendant's motion to dismiss the claims of plaintiff Bowens on grounds of mootness based upon defendant's offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure is denied.

3. Plaintiffs' motion to have their case certified for collective action notice is granted. In order to facilitate the giving of notice, the defendants are ordered, within 20 days, to provide to plaintiffs' counsel the names, last known contact information, employment dates, and last four digits of the social security numbers of all current and former Atlantic employees who, during the past three years, held the position of janitorial or maintenance worker or performed such duties at any Atlantic Maintenance Corp. site. With respect to the plaintiffs' proposed form of notice, Judge Pollak's recommendations are adopted in their entirety. Thus, defendants' objection to the language directing potential plaintiffs to contact plaintiffs' counsel for further information is rejected. However, the notice should be revised to instruct that the Consent Forms be sent to the Clerk of Court. Also, potential plaintiffs should be given 60 days to opt-in. Within two weeks, in accordance with Judge Pollak's direction at page 47 of the R & R, the parties are to meet and confer and propose to her a revised form of notice.

4. Defendant's motion to disqualify Bowens' attorneys from representing anyone in this action is denied.

5. Plaintiffs' motion for a protective order to prevent defendant and its officers, agents, and employees from communicating with anyone involved in this case is granted. Judge Pollak is authorized to enforce this order.

SO ORDERED.

REPORT AND RECOMMENDATION

CHERYL L. POLLAK, United States Magistrate Judge.

On February 24, 2006, Luis Marti ("Marti"), individually and on behalf of all other persons similarly situated, commenced an action against defendant Atlantic Maintenance Corp. ("Atlantic") pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), seeking unpaid wages for overtime work under the New York Labor Law, reimbursement for deductions improperly made by defendant from wages, and liquidated damages. Plaintiff Arquis D. Bowens ("Bowens") initially filed a consent to join the action on July 17, 2006. On November 16, 2006, this Court issued a Report and Recommendation, recommending that Mr. Marti's claim be dismissed based on his voluntary withdrawal from the action.

Thereafter, on December 1, 2006, plaintiff Bowens filed a Second Amended Verified Complaint and Jury Demand, seeking to represent a class of non-exempt employees of defendant who provided janitorial and maintenance services and who did not receive overtime compensation or who had improper deductions made from their wages. (Am. Compl.¹ ¶ 8).

Currently pending before this Court are 1) plaintiffs' motion for contempt and to disqualify defendant's counsel;² 2) defendant's motion to dismiss; 3) plaintiffs' motion for certification of this case as a collective action; 4) defendant's motion for disqualification of plaintiffs' counsel, which includes a motion to compel plaintiff Bowens to testify about his decision to remain in the case; and 5) plaintiffs' motion to prevent defendant from communicating with anyone involved in the case.

FACTUAL AND PROCEDURAL BACKGROUND

According to the initial Complaint filed by former plaintiff Luis Marti, defendant Atlantic is a New York corporation with its principal place of business located in Brooklyn, New York, which provides janitorial and maintenance services to various clients. (Compl.³ ¶¶ 7, 22). Marti alleged that he was an employee of Atlantic who worked as a field supervisor for the defendant from approximately February 2005 until December 2005. (Id. ¶ 23). According to the Marti Complaint, Marti often worked in excess of 40 hours per week, and yet defendant did not pay overtime compensation of one and one-half times the regular hourly rate; further, defendant took improper deductions from plaintiffs wages, all in violation of the FLSA, New York Labor Law and New York State Department of Labor regulations. (Id. ¶ 25). Marti further alleged that, despite his title and position, he was a non-exempt employee with no managerial responsibilities or authority. (Id. ¶¶ 23, 25).

Plaintiffs further alleged that defendant employed other individuals in positions that required little skill and no capital investment and who had no managerial duties or responsibilities. (Id. ¶ 26). Like plaintiff Marti, it was alleged that these non-exempt individuals worked in excess of 40 hours a week and yet were not paid the requisite overtime compensation and also had improper deductions...