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Sobolewski v. Boselli & Sons, LLC

United States District Court, D. Colorado

October 16, 2017

THOMASZ SOBOLEWSKI, on behalf of himself and all similarly situated persons, Plaintiff,
v.
BOSELLI & SONS, LLC, a Colorado limited liability company, and JAMES J. BOSELLI, Defendants.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

         Defendants are the alleged owners of 12 McDonald's restaurants in Colorado. Plaintiff worked at four of such 12 locations. Plaintiff's class and collective action complaint alleges Defendants' employees were not paid properly for breaks. As such, as relevant to this Order, Plaintiff sues for unpaid wages on his own behalf and on behalf of other employees “similarly situated.” This matter is now before the Court on the July 11, 2017, Recommendation of United States Magistrate Judge (the “Recommendation”) (ECF No. 53) to grant Plaintiff's Motion for Approval of Hoffman-Laroche Notice (the “Motion”) (ECF No. 33), thereby allowing notice of this lawsuit to be provided to Defendants' former and current hourly employees. Defendants have filed an objection (the “Objection”) (ECF No. 54) to two of the recommendations. Plaintiff filed a Response (ECF No. 55), to which Defendants filed a Reply[1] (ECF No. 56). Upon consideration of the Recommendation, Objection, Response, Reply, relevant portions of the court file, and the applicable rules and case law, and being otherwise fully advised, the Objection is OVERRULED.

         I. LEGAL STANDARD

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and specific enough to enable the “‘district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.'” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). The district judge need not, however, consider arguments not raised before the magistrate judge. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed. R. Civ. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         II. BACKGROUND

         As no party objected to the Recommendation's recitation of the factual allegations, and finding no clear error, they are accepted and incorporated by reference. What has been objected to are two of the Magistrate Judge's seven recommendations. Those seven recommendations are as follows:

(1) that the Motion be granted to the extent it seeks conditional certification of an FLSA class consisting of “All current and former hourly employees who worked for [Defendants] in Colorado at any time from June 21, 2013 to present.” (Rec. at page 3, brackets in original.);
(2) that the proposed Certification Notice be sent to all hourly employees, not just crew members and crew trainers;
(3) that the Certification Notice be sent to all hourly employees that worked at all 12 Colorado locations;
(4) that the Certification Notice be sent by U.S. mail and email;
(5) that the opt-in period be limited to thirty days;
(6) that the parties be ordered to meet and confer to attempt to draft a mutually-agreed upon Certification Notice and Consent to Join form, as ...

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