18‐1343
Isigi v. Dorvilier

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT


                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 19th day of December, two thousand nineteen.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                      Circuit Judges.
_________________________________________

ROSELYN ISIGI,

                     Plaintiff‐Appellee,

                            v.                                     No. 18‐1343

HARRY DORVILIER, HARRY’S NURSES REGISTRY,

           Defendants‐Appellants.
_________________________________________
FOR PLAINTIFF‐APPELLEE:                      Jonathan A. Bernstein, Meenan &
                                             Associates, LLC, New York, NY.

FOR DEFENDANTS‐APPELLANTS:                   Harry Dorvilier, pro se, Jamaica, NY;
                                             Gunilla Perez‐Faringer, Esq., White
                                             Plains, NY (for Harry’s Nurses
                                             Registry).

      Appeal from a judgment of the United States District Court for the Eastern

District of New York (Block, J.).

      UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment entered on April 2, 2018, is

AFFIRMED.

      Defendants‐Appellants Harry Dorvilier and Harry’s Nurses Registry

(“HNR”) appeal from a judgment of the District Court (Block, J.) awarding

damages to Plaintiff‐Appellee Roselyn Isigi following the entry of default

judgment under Federal Rule of Civil Procedure 37. We assume the parties’

familiarity with the underlying facts, procedural history, and arguments on

appeal, to which we refer only as necessary to explain our decision to affirm.

      In 2016, Isigi sued HNR and its principal, Dorvilier, for violations of the

Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), and the New York

Minimum Wage Act, N.Y. Labor Law §§ 650 et seq. (“NYLL”). Isigi, a nurse at

HNR, alleges that Defendants failed to pay her premium wages for overtime

work. She later amended her complaint to add a retaliation claim, alleging that

one of her managers responded to the lawsuit by threatening that she could lose

her job and nursing license.



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      In 2007, before Isigi began working for HNR, Claudia Gayle, another HNR

nurse, brought essentially identical claims against Defendants on behalf of HNR

nurses who had similarly been denied premium wages for overtime work. See

Gayle v. Harry’s Nurses Registry, Inc., No. 07‐cv‐4672 (E.D.N.Y.) (the “Gayle

Action”). The District Court granted summary judgment in favor of the plaintiff

class, rejecting Defendants’ argument that the nurses were independent

contractors and therefore not entitled to an overtime premium, and we affirmed.

See Gayle v. Harry’s Nurses Registry, Inc., 594 F. App’x 714, 719 (2d Cir. 2014).

      In September 2017, more than a year after Isigi sued, the Magistrate Judge

(Gold, M.J.) filed a Report and Recommendation (the “2017 R&R”)

recommending that the District Court enter a default against Defendants due to

their repeated violations of the court’s discovery orders. The District Court

adopted the 2017 R&R with one exception: instead of merely entering a default,

the court entered a default judgment under Rule 37(b)(2)(A)(vi) and referred the

case back to the Magistrate Judge “for consideration of damages and any other

appropriate remedies.” Isigi v. Harry’s Nurses Registry, Inc., No. 16‐cv‐2218, 2017

WL 4417659, at *2 (E.D.N.Y. Oct. 4, 2017). To justify the default judgment, the

District Court cited “Defendants’ repeated failures to participate in discovery or

attend hearings,” including Dorvilier’s “willful defiance” of the Magistrate

Judge’s orders to appear for his deposition. Id. at 1, 2.

      In March 2008, the Magistrate Judge issued a second report (the “2018

R&R”), recommending that Isigi be awarded $322,227.28 in damages, including

unpaid overtime wages, liquidated damages, pre‐judgment interest, lost wages,

emotional distress damages, and attorneys’ fees and costs. Isigi v. Dorvilier, No.


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16‐cv‐2218, 2018 WL 1598613, at *7 (E.D.N.Y. Mar. 14, 2018). The 2018 R&R

warned Defendants that they had 14 days to object and that “[f]ailure to object to

this Report may waive the right to appeal the District Court’s Order.” Id.

Defendants never objected, and the District Court adopted the 2018 R&R. See Isigi

v. Dorvilier, No. 16‐cv‐2218, 2018 WL 1597386, at *1 (E.D.N.Y. Apr. 2, 2018).

      On appeal, Defendants do not challenge the District Court’s decision to

enter a default judgment as a sanction for their multiple discovery violations.1

Instead, they argue that the well‐pleaded factual allegations of Isigi’s complaint

do not establish liability. Additionally, they contest the amount of damages

awarded, arguing that certain portions of the award lack support in the record.

Both challenges plainly fail.

       “[T]he legal effect of a default judgment” is that the defendant is deemed

to have “admitted every well pleaded allegation of the complaint.” Trans World

Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d Cir. 1971) (internal quotation marks

omitted), rev’d sub nom. on other grounds Hughes Tool Co. v. Trans World Airlines,

Inc., 409 U.S. 363 (1973); see also Jackson v. Fed. Express, 766 F.3d 189, 194 n.2 (2d

Cir. 2014). However, the admission of factual allegations does not amount to an



1 To the extent that Defendants’ appellate briefs can be understood as raising
such a challenge, it is without merit. While default judgment should be imposed
as a Rule 37 sanction in only “extreme situations,” it may be appropriate “when a
court finds willfulness, bad faith, or any fault on the part of the noncompliant
party.” Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 451 (2d Cir. 2013)
(internal quotation marks omitted). Here, over the course of a year, Defendants
repeatedly failed to comply with the Magistrate Judge’s discovery and
scheduling orders, notwithstanding multiple warnings that continued
noncompliance would result in a default.

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admission of liability; the court is still “required to determine whether the

[plaintiff’s] allegations establish [the defendant’s] liability as a matter of law.”

Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). Here, Isigi has alleged (and

Defendants are deemed to admit) that her employment with HNR was

substantially identical to that of the nurses who prevailed in the Gayle Action.

Therefore, under the doctrine of collateral estoppel, the determination in Gayle

that the nurses are entitled to an overtime premium establishes Isigi’s

entitlement to the same. Moreover, Defendants’ liability on Isigi’s retaliation

claim is established by her allegations that (1) a manager warned her that she

could lose her job and nursing license due to her lawsuit; and (2) Defendants

stopped paying her shortly after she filed suit.

      As to the damages award, Defendants waived appellate review by failing

to object to the 2018 R&R. “[F]ailure to timely object to a magistrate’s report and

recommendation operates as a waiver of further judicial review of the

magistrate’s decision,” provided “the parties receive clear notice of the

consequences.” Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015). While we have

discretion to excuse a failure to object “in the interests of justice,” we will

ordinarily not exercise that discretion unless “the magistrate judge [has]

committed plain error.” Spence v. Superintendent, Great Meadow Corr. Facility, 219

F.3d 162, 174 (2d Cir. 2000). Here, the 2018 R&R provided Defendants with the

requisite notice, see Isigi, 2018 WL 1598613, at *7, and Defendants offer no

explanation for their failure to object. Furthermore, we identify no error—much

less plain error—in the Magistrate Judge’s careful review of the parties’




                                           5
submissions and evidence. There is no reason to invoke our “interests of justice

discretion” to excuse their failure to object. Spence, 219 F.3d at 174.

                                         * * *

      We have considered Defendants’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the District Court’s judgment

is AFFIRMED.

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk of Court




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