The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRANDON SHERR,
Plaintiff,
Case No. 1:23-cv-08693 (JLR)
-against-
MEMORANDUM OPINION
BOARD OF ELECTIONS IN THE CITY OF AND ORDER
NEW YORK,
Defendant.
JENNIFER L. ROCHON, United States District Judge:
On October 3, 2023, Brandon D. Sherr (“Plaintiff”) commenced this overtime-pay action
under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the “FLSA”), seeking monetary and
injunctive relief against the Board of Elections in the City of New York (“Defendant”). ECF No.
1 (the “Complaint”). On December 15, 2023, Defendant moved to dismiss the Complaint. ECF
No. 21. The Court entered an amended order of reference on December 19, 2023. ECF No. 24.
On February 10, 2024, Magistrate Judge Aaron issued a Report and Recommendation
advising that Defendant’s motion to dismiss the Complaint should be granted. ECF No. 34 (the
“Report”) at 1. The Report explained that although Plaintiff had alleged FLSA overtime
violations with the requisite specificity, see id. at 3-6, Plaintiff’s claims were time-barred by the
FLSA’s general two-year statute of limitations, see id. at 6-7. The Report noted, however, that a
three-year statute of limitations would apply if Defendant’s alleged violations were willful. See
id. at 6. “[B]ecause Plaintiff may be able to amend his pleading to add facts regarding
willfulness, [the Report] recommend[ed] that he be granted leave to amend.” Id. at 7. The
Report warned, in bold and all-caps font, that failure to timely object would result in a waiver of
objections and preclude appellate review. Id. at 8.
Ordinarily, a party must file objections to a magistrate judge’s recommended disposition
within 14 days after the party is served with a copy of the recommended disposition. 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). Fourteen days after February 10, 2024, was Saturday,
February 24, 2024. “When [a time] period is stated in days” and “the last day is a Saturday,
Sunday, or legal holiday, the period continues to run until the end of the next day that is not a
Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(1)(C). Thus, Plaintiff’s objections to
the Report were due on Monday, February 26, 2024. That date has now passed, and no
objections have been filed to the Report. For the following reasons, the Court adopts the Report
in full.
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); see Fed. R. Civ. P.
72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). “In a case such as this one, where 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.” Trinidad v. 62 Realty, LLC, No. 22-cv-00101 (JLR), 2023 WL
8005778, at *1 (S.D.N.Y. Nov. 17, 2023) (citation omitted). A party’s “failure to object timely
to a report waives any further judicial review of the report” so long as the party received “clear
notice of the consequences of the failure to object.” Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992) (quotation marks and citation omitted).
Here, neither party has submitted objections to the Report. The Court therefore reviews
the Report for clear error. See Trinidad, 2023 WL 8005778, at *1. The Court finds that the
Report’s reasoning is sound, grounded in fact and law, and not clearly erroneous. Accordingly,
the Court ADOPTS the thorough and well-reasoned Report in its entirety. Defendant’s motion
to dismiss is GRANTED. The Court grants Plaintiff leave to file an amended complaint within
twenty-one (21) days of this report and recommendation. In light of the clear notice provided in
the Report, the lack of any timely objections precludes appellate review of this decision. See
Frank, 968 F.2d at 300. The Clerk of Court is respectfully directed to terminate the motion at
ECF No. 21.
Dated: February 27, 2024
New York, New York
SO ORDERED.
see hes ——
United States District Judge