Benjamin v. Maspeth Contracting Corp. et al
| Ivan Benjamin |
| Maspeth Contracting Corp., R & B Services Inc. and Maspeth Supply Co., LLC |
| Raymond Nardo |
| 1:2022cv04494 |
| July 30, 2022 |
| US District Court for the Eastern District of New York |
| LaShann DeArcy Hall |
| Taryn A Merkl |
| Labor: Fair Standards |
| 29 U.S.C. § 201 Fair Labor Standards Act |
| Plaintiff |
Docket Report
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ORDER: The Motion for Settlement Approval #29 is granted. The Court has reviewed the revised settlement agreement [34-1] between Ivan Benjamin, Maspeth Supply Co., LLC, and R & B Services Inc. A Fairness/ Cheeks hearing was held on 9/11/2023, and movants Plaintiff Benjamin and Defendant Maspeth Supply Co., LLC have consented #33 to consideration of the Motion for Settlement Approval #29 by a U.S. Magistrate Judge. Having reviewed the settlement agreement, for the reasons herein and the additional reasons discussed on the record, the Court finds that "the agreement reflects a reasonable compromise of disputed issues rather than a mere waiver of statutory rights brought about by an employer's overreaching." Le v. SITA Information Networking Computing, USA, Inc., No. 07-CV-86 (JS) (MLO), 2008 WL 724155, at *1 (E.D.N.Y. Mar. 13, 2008) (quotation marks and modification omitted); see also Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 200 (2d Cir. 2015).As a threshold matter, the Court finds that the settlement was the product of arm's-length bargaining between experienced counsel after ample discovery and negotiations. See Wolinsky v. Scholastic, Inc., 900 F. Supp. 2d 332, 335 (S.D.N.Y. 2012) (identifying five factors in evaluating whether a proposed settlement is fair and reasonable, including (1) the possible range of recovery; (2) the avoidance of burdens and expenses of trial; (3) litigation risk; (4) whether settlement is the product of arm's-length bargaining; and (5) the possibility of fraud or collusion). See also Fisher v. SD Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (citing the Wolinsky factors). In addition, as discussed at the Cheeks hearing, the Court finds that (1) the settlement amount as reflected in the proposed settlement agreement provides Plaintiff with a recovery that is substantial and fair in light of the identified litigation risks, and is within the possible range of recovery; (2) the attorney's fees portion of the settlement is for an amount slightly less than one-third of the net settlement amount, excluding reasonable costs, and is reasonable given the actual scope of worked performed by Plaintiff's counsel ( see Time Records, ECF No. 29-3); (3) the release provided for in the agreement is limited in scope; and (4) the settlement agreement does not contain impermissible provisions such as a non-disparagement clause or a ban on future employment; nor does it impose a duty of confidentiality. For the reasons above and those stated on the record, the terms of the settlement are fair and reasonable. The settlement is therefore approved. As stated on the record, Plaintiff Benjamin and Defendant Maspeth Supply, Co., LLC are respectfully directed to file a stipulation of dismissal by 1/16/2024; Plaintiff is further directed to file a notice of voluntary dismissal as to Defendant R&B Services Inc., also by 1/16/2024. In light of the Court's approval of the motion for settlement approval and the anticipated dismissal of this case, the motion to set aside the default #24 is terminated as moot and the Clerk of Court is respectfully directed to vacate the April 3, 2023, entry of default. So Ordered by Magistrate Judge Taryn A. Merkl on 9/11/2023.
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| Minute Entry: A telephonic Fairness/Cheeks Conference was held on 9/11/2023 before Magistrate Judge Taryn A. Merkl. Appearances by Abdul Hassan for Plaintiff and William Kang for Defendant Maspeth Supply Co., LLC. (See separate docket entry for Order issuing from this proceeding.) (AT&T Log #10:05-10:19.) (SA) |
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SCHEDULING ORDER: A Cheeks Conference will be held on 9/11/2023 at 10:00 a.m. before Magistrate Judge Taryn A. Merkl. The parties are directed to call the toll free number (877) 336-1839. The access code is 3914302. The parties shall dial in five (5) minutes befor ethe scheduled conference. Ordered by Magistrate Judge Taryn A. Merkl on 9/7/2023. (KC)
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| Filing 35 CONSENT to Magistrate Judge Disposition on #29 MOTION for Settlement Approval, by Ivan Benjamin, Maspeth Supply Co., LLC, R & B Services Inc. #29 Motion referred to Taryn A. Merkl. (Ordered by U.S. District Judge, LaShann DeArcy Hall on 8/25/2023). (ML) |
| Filing 34 Letter Fully Executed Settlement Agreement by Ivan Benjamin (Attachments: #1 Fully Executed Settlement Agreement) (Hassan, Abdul) |
| Filing 33 CONSENT to Magistrate Judge Disposition on Motion by Ivan Benjamin re #29 MOTION for Settlement Approval (Hassan, Abdul) |
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Minute Entry and Order: A telephonic Cheeks conference was held on 7/27/2023 before Magistrate Judge Taryn A. Merkl. Appearances by Abdul Hassan for Plaintiff and William Kang for Defendant Maspeth Supply Co., LLC; Defendant R & B Services Inc. did not appear. Discussion held regarding the pending motion #29 for settlement approval in light of the parties' subsequent filings #30 #31 #32 and Defendant R & B Services Inc.'s failure to appear in this action. As stated on the record, the appearing parties indicated that they are working towards finalizing a revised proposed settlement agreement. Argument heard on the motion, including on the settlement amount, Plaintiff's estimated wage deficiency, the process by which settlement was reached, anticipated litigation risks and possible defenses, attorney's fees, and the terms of the proposed settlement. The Court directed the parties to file a joint status report advising the Court as to proposed next steps, including any revised settlement agreement between the parties, by 8/3/2023. Counsel are encouraged to consider whether they will file a form consenting to referral of their motion for settlement approval to the undersigned Magistrate Judge, and to file such form on ECF no later than 8/3/2023. The form may be accessed at the following link: # https://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-dispositive-motion-magistrate-judge . You may withhold your consent without adverse substantive consequences. Ordered by Magistrate Judge Taryn A. Merkl on 7/27/2023. (SA)
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ORDER: The Court is in receipt of the parties' letters #31 #32 . Defendant's request for additional time to file the contemplated release is denied, and the Cheeks conference will still be held on 7/27/2023 at 10:00 a.m. The parties should be prepared to discuss whether the proposed settlement is confined to the term sheet (see ECF No. 29-1), or whether a separate release has been executed or is necessary. So Ordered by Magistrate Judge Taryn A. Merkl on 7/25/2023. (SA)
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| Filing 32 Letter Response to ECF No. 31 by Ivan Benjamin (Hassan, Abdul) |
| Filing 31 Letter MOTION for Extension of Time to File Document by Maspeth Supply Co., LLC. (Villanella, Alessandro) |
| Filing 30 Letter Response to Courts July 19, 2023 Order by Ivan Benjamin (Hassan, Abdul) |
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SCHEDULING ORDER: The Court is in receipt of the motion #29 for settlement approval. The Court notes that the term sheet attached to the motion, dated 6/30/2023, provides that one of the parties would "draft a Release and forward it to the opposing party within 14 days." (Term Sheet, ECF No. 29-1, para. 2.) The parties are respectfully directed to file the contemplated Release for Court review by 7/24/2023.A telephonic Cheeks conference will be held on 7/27/2023 at 10:00 a.m. before Magistrate Judge Taryn A. Merkl. The parties are directed to call the toll-free number at (877) 336-1839. The access code is 3914302. The parties shall dial in five (5) minutes before the scheduled conference. Counsel are encouraged to consider whether they will file a form #2 consenting to reassignment of this case to the undersigned Magistrate Judge for all purposes, including for review of the settlement agreement and to conduct the Cheeks hearing, and to file such form on ECF no later than 7/26/2023. The form may be accessed at the following link: # https://www.uscourts.gov/forms/civil-forms/notice-consent-and-reference-civil-action-magistrate-judge. You may withhold your consent without adverse substantive consequences. Ordered by Magistrate Judge Taryn A. Merkl on 7/19/2023. (SA)
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| Filing 29 MOTION for Settlement Approval by Ivan Benjamin. (Attachments: #1 Fully Executed Settlement Agreement, #2 Retainer Agreement, #3 Time Records, #4 Costs Receipts) (Hassan, Abdul) |
| SELECTION OF MEDIATOR Raymond Nardo selected as Mediator. Date Time and Location in-person/remote: June 30, 2023 at 10 a.m. (remote). Fourteen days on or before the session date, counsel shall file with the Mediator their client's mediation statement summarizing the facts, legal issues, particulars of any prior settlement discussions, and the name and title of the client or client representative with full settlement authority who will attend the mediation. For more details on the submission, please consult Local Civil Rule 83.8(b)(4). Attendance is required of the trial attorney, insurance adjuster, and client or client representative with full settlement authority. The Confidentiality Stipulation (in-person or remote) must be signed at or before the initial mediation session by all participants and the Mediator and returned via e-mail to nyed_adr@nyed.uscourts.gov. The Mediators contact information can be found on the docket sheet. Within fourteen days of the conclusion of the mediation, both parties must submit a Mediation Report. (DS) |
| Filing 28 Letter In Accordance with Court's Order dated May 18, 2023 by Maspeth Supply Co., LLC (Villanella, Alessandro) |
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ORDER: On 5/3/2023, the Court directed the parties to select a mediator by 5/17/2023. To date, no selection has been made. If they have not already done so, the parties are again directed to select a mediator, and to file their selection on ECF, this time by 5/24/2023. (See May 3, 2023 Mediation Instructions.) Ordered by Magistrate Judge Taryn A. Merkl on 5/18/2023. (SA)
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Minute Entry and Order: A telephonic status conference was held on 5/3/2023 before Magistrate Judge Taryn A. Merkl. Appearances by Abdul Hassan for Plaintiff and William Kang for Defendant Maspeth Supply Co., LLC. Reginald Bridgewater, a representative of Defendant R&B Services Inc., also appeared. Mr. Bridgewater indicated that Mr. DeIorio does not represent R&B Services in this matter. In light of Mr. Bridgewater's representations, as well as prior filings indicating that Mr. DeIorio represented only Defendant Maspeth Contracting Corp. (no longer a party in this action), the Clerk of Court is respectfully directed to terminate Mr. DeIorio as counsel for R&B Services. (SeeMot. for Extension of Time, ECF No. 8; Nov. 9, 2022 Letter, ECF No. 9; Nov. 15, 2022 Letter.) As stated on the record, the Court advised Mr. Bridgewater that, as a non-attorney, he cannot represent R&B Services in this matter. See Berrios v. N.Y.C. Hous. Auth., 654 F.3d 130, 13233 (2d Cir. 2009) (explaining that non-attorneys cannot represent parties other than themselves). Should Mr. Bridgewater obtain legal representation on behalf of R&B Services, new counsel should enter a notice of appearance as soon as is practicable.Discussion also held regarding case status in light of Defendant Maspeth Supply Co., LLC's pending motion to set aside the default #24 and Plaintiff's letter #27 requesting a referral to mediation. For the reasons discussed on the record, this case will be referred to the E.D.N.Y. Mediation Panel. The parties shall exchange all relevant documents and records prior to mediation, including but not limited to payroll records, pay stubs, and time and hour records for Plaintiff. Selection of mediator due by 5/17/2023. Mediation shall be completed by 7/14/2023. The parties are directed to file a joint status letter by 7/21/2023, or within seven days of mediation (whichever is earlier), providing an update as to the outcome of mediation and case status. Additionally, in light of the referral to mediation, Defendant Maspeth's motion shall be held in abeyance, and all case deadlines are temporarily stayed. In the event that the case is not resolved by mediation or settlement, Plaintiff shall respond to Defendant Maspeth Supply Co., LLC's motion #24 by 8/4/2023. The Clerk of Court is respectfully directed to send a copy of this Minute Entry and Order to Mr. Bridgewater at rb@rnbsrvc.com. Ordered by Magistrate Judge Taryn A. Merkl on 5/3/2023. (AT&T Log #9:57-10:25.) (SA)
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ORDER REFERRING CASE to Mediation. Selection of Mediator due 5/17/2023. Mediation shall be completed by 7/14/2023. Ordered by Magistrate Judge Taryn A. Merkl on 5/3/2023. (SA)
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| MEDIATION INSTRUCTIONS for Counsel are available at: https://www.nyed.uscourts.gov/adr-forms.Counsel are to select a mediator, schedule the first mediation session, and file the name of the mediator, date, time and place (in-person or remote) of the first mediation session via CM/ECF using the event Selection of Mediator. For a list of the EDNY Mediators and their qualifications, see the Court's website at https://www.nyed.uscourts.gov/adr/Mediation/displayAll.cfm. EDNY Mediators are compensated in accordance with EDNY Local Civil Rule 83.8(f)(1)[formerly EDNY Local Civil Rule 83.11(f)(1)]. The Confidentiality Stipulation is available at: https://www.nyed.uscourts.gov/adr-forms. The Confidentiality Stipulation (in-person or remote) must be signed at or before the initial mediation session by all participants and the Mediator and returned via e-mail to nyed_adr@nyed.uscourts.gov.Upon completion of the mediation, both parties must submit a Mediation Report which can be found at: https://www.nyed.uscourts.gov/adr-forms. The Mediation Report must be submitted within two weeks following mediation session. (TP) |
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SCHEDULING ORDER: A telephonic Status Conference will be held on 5/3/2023 10:00 a.m. before Magistrate Judge Taryn A. Merkl. The parties are directed to call the toll free number (877) 336-1839. The access code is 3914302. The parties shall dial in five (5) minutes before the scheduled conference. Ordered by Magistrate Judge Taryn A. Merkl on 4/20/2023. (KC)
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| Filing 27 Letter Request for Mediation Referral and Motion for Extension of Time by Ivan Benjamin (Hassan, Abdul) |
| Filing 26 NOTICE by Maspeth Supply Co., LLC (Notice of 2nd Page added to Dkt 24.1 (Declaration of Jay Fuchs) (Villanella, Alessandro) |
| Filing 25 MEMORANDUM in Support re #19 Clerk's Entry of Default, (Memorandum of Law in Support of Defendant Maspeth Supply Co., LLC's Motion to Set Aside Default and For Extension of Time to Respond to the Complaint) filed by Maspeth Supply Co., LLC. (Villanella, Alessandro) |
| Filing 24 VACATED Notice of MOTION to Set Aside Default , Notice of MOTION for Extension of Time to File Answer re #19 Clerk's Entry of Default, by Maspeth Supply Co., LLC. (Attachments: #1 Declaration (Declaration of Jay Fuchs, #2 Exhibit A to Declaration (Letter from Plaintiff's Counsel)) (Villanella, Alessandro) Modified on 9/11/2023 per Judge Merkl's 9/11/2023 Order. (KC). |
| Filing 23 Corporate Disclosure Statement by Maspeth Supply Co., LLC (Villanella, Alessandro) |
| Filing 22 NOTICE of Appearance by William Kang on behalf of Maspeth Supply Co., LLC (aty to be noticed) (Kang, William) |
| Filing 21 NOTICE of Appearance by Alessandro Villanella on behalf of Maspeth Supply Co., LLC (aty to be noticed) (Villanella, Alessandro) |
| Filing 20 STATUS REPORT to Magistrate Judge Merkl by Maspeth Supply Co., LLC (Villanella, Alessandro) |
| Filing 19 VACATED Clerk's ENTRY OF DEFAULT It appearing from the docket maintained in this action that defendant Maspeth Supply Co., LLC, R & B Services Inc. has failed to appear or otherwise defend this action, the default of defendant Maspeth Supply Co., LLC, R & B Services Inc. is hereby noted pursuant to Rule 55a of the Federal Rules of Civil Procedure. (JP) Entry modified on 9/11/2023 to indicate the clerk's entry of default has been vacated as per Mag. Judge Order dtd. 9/11/23 (ML). |
| Filing 18 Request for Certificate of Default by Ivan Benjamin (Attachments: #1 Supporting Declaration, #2 Proposed Certificate of Default, #3 Proof of Service) (Hassan, Abdul) |
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ORDER: On 1/30/2023, the Court directed Defendants to answer the Amended Complaint by 2/27/2023. After no filing was made, on 2/28/2023, the Court again directed Defendants to answer the Amended Complaint, this time by 3/21/2023. To date, no filing has been made. On pain of sanctions, the parties are directed to file a stipulation of dismissal or a joint status report by 4/12/2023, advising the Court as to proposed next steps, including an answer deadline for Defendants. Ordered by Magistrate Judge Taryn A. Merkl on 3/22/2023. (SA)
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ORDER: On 1/30/2023, in light of Plaintiffs status report #17 , the Court directed Defendants to answer the Complaint by 2/27/2023. To date, no filing has been made. The Court again directs Defendants to answer, move, or otherwise respond to the Amended Complaint, this time by 3/21/2023, unless a notice of dismissal has been filed by such time. Ordered by Magistrate Judge Taryn A. Merkl on 2/28/2023. (SA)
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ORDER: The Court is in receipt of Plaintiff's status report #17 indicating that Plaintiff has been in contact with counsel for Defendants Maspeth Supply Co., LLC, and R&B Services Inc., and that the parties are engaging in settlement discussions. In light of these representations, these Defendants' deadline to answer, move, or otherwise respond to the Amended Complaint is extended to 2/27/2023. Ordered by Magistrate Judge Taryn A. Merkl on 1/30/2023. (SA)
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| Filing 17 STATUS REPORT by Ivan Benjamin (Hassan, Abdul) |
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ORDER: The Court is in receipt of Defense Counsels Notice of Withdrawal #16 , indicating that ECF lists both "Patrick V. DeIorio, Esq. and Donna M. Mulato, Esq.... as Attorneys of Record for Defendant Maspeth Contracting Corp." and that counsel's "firm does not represent [Defendant] Maspeth Supply Co., LLC." (Notice of Withdrawal, ECF No. 16.) The Court notes that ECF lists only Mr. DeIorio as counsel in this case and does not indicate that he is representing Defendant Maspeth Supply Co., LLC. The Court respectfully directs the parties to clarify, in their joint status report due 1/27/2023, which parties are represented and by whom. (See Jan. 13, 2023 ECF Order.) The Court further reminds counsel that, to the extent he intends to withdraw as counsel for any party, he "may not withdraw... without leave of the Court." E.D.N.Y. Local Civil Rule 1.4. Ordered by Magistrate Judge Taryn A. Merkl on 1/25/2023. (SA)
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| Filing 16 NOTICE by Maspeth Contracting Corp., Maspeth Supply Co., LLC, R & B Services Inc. of withdrawal as attorneys of record (DeIorio, Patrick) |
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ORDER: On 12/28/2022, the Court directed Defendants to answer, move, or otherwise respond to the Amended Complaint by 1/11/2023. To date, no filing has been made. The Court again directs Defendants to answer, move, or otherwise respond to the Amended Complaint, this time by 1/27/2023. The Court further directs the parties to submit a joint status report by the same date, 1/27/2023, advising the Court as to case status. Ordered by Magistrate Judge Taryn A. Merkl on 1/13/2023. (SA) Modified text on 1/13/2023 (KC).
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ORDER: An Amended Complaint was filed on 12/4/2022, with proof of service of the Amended Complaint filed on 12/7/2022, indicating that Defendants were served on 12/6/2022. To date, no answer has been filed to the Amended Complaint, nor was an answer filed in response to the initial Complaint. Defendants are directed to answer, move, or otherwise respond to the Amended Complaint by 1/11/2023. Ordered by Magistrate Judge Taryn A. Merkl on 12/28/2022. (SA)
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| Filing 15 SUMMONS Returned Executed by Ivan Benjamin. Maspeth Supply Co., LLC served on 12/6/2022, answer due 12/27/2022; R & B Services Inc. served on 12/6/2022, answer due 12/27/2022. (Hassan, Abdul) |
| Filing 14 AMENDED Summons Issued as to Maspeth Supply Co., LLC, R & B Services Inc.. (ML) |
| Filing 13 Proposed Summons. by Ivan Benjamin (Hassan, Abdul) |
| Filing 12 AMENDED COMPLAINT (First) against R & B Services Inc., Maspeth Supply Co., LLC, filed by Ivan Benjamin. (Hassan, Abdul) |
| Filing 11 Letter Response to ECF Nos 9-10 by Ivan Benjamin (Hassan, Abdul) |
| Filing 10 Letter to Judge LaShann DeArcy Hall by Maspeth Contracting Corp., R & B Services Inc. (DeIorio, Patrick) |
| Filing 9 Letter requesting a pre-motion conference by Maspeth Contracting Corp., R & B Services Inc. (DeIorio, Patrick) |
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ORDER: Motion for Extension of Time to File #8 is granted, on consent. Defendants shall file an Answer, move, or otherwise respond to the Complaint on or before 11/15/2022. So Ordered by Magistrate Judge Taryn A. Merkl on 10/5/2022. (SA)
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| REQUEST for Certificate of Default is denied at this time as to defendants. As per Judge Merkl's 10/05/2022 Order, Defendants shall file an Answer, move, or otherwise respond to the Complaint on or before 11/15/2022. re #7 Request for Certificate of Default (JP) |
| Filing 8 First MOTION for Extension of Time to File Answer re #1 Complaint, by Maspeth Contracting Corp., R & B Services Inc.. (DeIorio, Patrick) |
| Filing 7 Request for Certificate of Default by Ivan Benjamin (Attachments: #1 Supporting Declaration, #2 Proposed Certificate of Default, #3 Proof of Service) (Hassan, Abdul) |
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ORDER: The Court is in receipt of the Plaintiff's status report dated 9/14/2022, in which Plaintiff indicates their intention to move for a default judgment. Should Plaintiff so choose, counsel is respectfully reminded that any such motion must be made in compliance with E.D.N.Y. Local Rule 55.2 and in strict compliance with the assigned district judge's individual rules. In the event default motion practice has not been initiated, Plaintiff is directed to file a further status report by 11/14/2022. Ordered by Magistrate Judge Taryn A. Merkl on 9/15/2022. (Arroyo, Stephen)
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| Filing 6 STATUS REPORT by Ivan Benjamin (Hassan, Abdul) |
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STATUS REPORT ORDER: The parties are respectfully directed to file a status report on or before 9/14/2022, advising the Court as to the progress of the case. Ordered by Magistrate Judge Taryn A. Merkl on 8/24/2022. (Cahn, Gabriel)
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| Filing 5 SUMMONS Returned Executed by Ivan Benjamin. Maspeth Contracting Corp. served on 8/2/2022, answer due 8/23/2022; R & B Services Inc. served on 8/2/2022, answer due 8/23/2022. (Hassan, Abdul) |
| Filing 4 Summons Issued as to Maspeth Contracting Corp., R & B Services Inc.. (Davis, Kimberly) |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Davis, Kimberly) |
| Filing 2 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent 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. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Davis, Kimberly) |
| Case Assigned to Judge LaShann DeArcy Hall and Magistrate Judge Taryn A. Merkl. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Davis, Kimberly) |
| Filing 1 COMPLAINT against Maspeth Contracting Corp., R & B Services Inc. filing fee $ 402, receipt number ANYEDC-15798619 Was the Disclosure Statement on Civil Cover Sheet completed -YES,, filed by Ivan Benjamin. (Attachments: #1 Proposed Summons, #2 Civil Cover Sheet) (Hassan, Abdul) |
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