Opinion
16-CV-3552 (PGG) (KHP)
2022-01-07
Jacinto Reyes SILVA, Panfilo Espinobarros, Salvador Reyes Silva, Sergio Candia, Sixto Galindo, and Victoriano Rogelio, individually and on behalf of others similarly situated, Plaintiffs, v. LEGEND UPPER WEST LLC. (d/b/a Legend Upper West), Min Xing Wang, and Dinggen Wang, Defendants.
Catalina Sojo, Jesse S. Barton, William Kevin Oates, Jr., Csm Legal P.C., New York, NY, Michael Antonio Faillace, Haleigh Amant, Michael Faillace & Associates, P.C., New York, NY, Joshua S. Androphy, Morrison and Tenenbaum, P.C., New York, NY, for Plaintiffs. Legend Upper West LLC, Pro Se. Min Xing Wang, Pro Se. Dinggen Wang, Pro Se.
Catalina Sojo, Jesse S. Barton, William Kevin Oates, Jr., Csm Legal P.C., New York, NY, Michael Antonio Faillace, Haleigh Amant, Michael Faillace & Associates, P.C., New York, NY, Joshua S. Androphy, Morrison and Tenenbaum, P.C., New York, NY, for Plaintiffs.
Legend Upper West LLC, Pro Se.
Min Xing Wang, Pro Se.
Dinggen Wang, Pro Se.
REPORT & RECOMMENDATION MOTION ON DAMAGES
KATHARINE H. PARKER, United States Magistrate Judge
TO: THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
FROM: THE HONORABLE KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs commenced this action on May 12, 2016, asserting claims against their employers, Defendants Legend Upper West Side LLC, Min Xing Wang, and Dinggen Wang, who own Legend Upper West a Chinese restaurant, for violations of the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). (Am. Compl. ECF No. 11.) Plaintiffs were employed as delivery workers and/or dishwashers at Defendants’ restaurant and sought unpaid regular and overtime wages, spread of hours pay, liquidated damages, damages for failure to provide wage statements, pre- and post-judgment interest, and attorneys’ fees and costs. Id. After a bench trial against Defendant Ming Xing Wang, the Honorable Paul G. Gardephe found in favor of Plaintiffs as to all claims, except for the claim for violation of the unauthorized deduction provisions of the NYLL, and ordered the parties to brief pre-judgment interest and attorney's fees and costs. (ECF No. 100.) Thereafter, default was entered against the other Defendants: Dinggen Wang and Legend Upper West LLC, and then Judge Gardephe referred this action to me for a report and recommendation. (ECF Nos. 77, 101.) Defendants did not file an opposition to the Plaintiffs’ Motion. An inquest hearing was scheduled for December 8, 2021, however Plaintiff's counsel sought an adjournment after failure to provide service of the inquest hearing to Defendants. (ECF Nos. 122, 123.) Thereafter, Plaintiff's counsel filed affidavits of service to the Defendants of the new date for the inquest hearing. (ECF Nos. 124-126.) An inquest hearing was held on January 6, 2022. Plaintiff submitted another request for additional attorney's fees and costs associated with the work done to prepare for the inquest hearing. (ECF No. 128.) After review of the submissions, I respectfully recommend that Plaintiffs be awarded pre-judgment interest and attorneys’ fees and costs as set forth in detail below.
Judge Gardephe found that Defendant Wang is liable for $449,076 in damages owed to Plaintiffs in the following amounts: (1) $115,044.64 to Plaintiff J. Silva; (2) $146,154.84 to Plaintiff S. Silva; (3) $80,016.12 to Plaintiff Candia; (4) $66,160 to Plaintiff Galindo; and (5) $41,700.40 to Plaintiff Rogelio. (ECF No. 100.)
BACKGROUND
Knowledge of the applicable facts are assumed. See ECF No. 100. After the bench trial against Defendant Min Xing Wang, the Honorable Paul G. Gardephe awarded the following compensatory damages to each of the Plaintiffs under New York's Labor Law ("NYLL"):
| Plaintiff | Amount of Compensatory Damages |
|---|---|
| J. Silva | $51,662.31 |
| S. Silva | $67,411.32 |
| S. Candia | $34,803.06 |
| S. Galindo | $28,080.00 |
| V. Rogelio | $15,625.20 |
(ECF No. 100. at p. 24.)
DISCUSSION
I. Prejudgment Interest
Plaintiffs are entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663 ; see Reilly v. Natwest Markets Group Inc. , 181 F.3d 253, 265 (2d Cir. 1999) (finding that the NYLL permits an award of both liquidated damages and prejudgment interest); see also Pineda v. Tokana Cafe Bar Restorant Inc. , 2017 WL 1194242, at *4 (S.D.N.Y. 2017) ("Prejudgment interest may be awarded in addition to liquidated damages under NYLL but not under the FLSA.") An NYLL plaintiff may recover prejudgment interest only on his or her actual damages under the NYLL, not on his or her liquidated damages under the state law. Gamero v. Koodo Sushi Corp. , 272 F. Supp. 3d 481, 515 (S.D.N.Y. 2017).
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Gamero , 272 F. Supp. 3d at 515. Accordingly, the Court uses the midpoint based of each Plaintiff's employment. The Plaintiffs’ respective dates of employment are as follows: J. Silva: August 2014 through May 2016; S. Silva: November 2013 through April 2016; S. Candia: March 2015 through May 2016; S. Galindo June 2015 until April 2016; V. Rogelio: August 2015 through February 2016. (ECF No. 92.) Based on these dates, the Court has identified the midpoint for each Plaintiff's employment term and computed the days between that midpoint and the date of Judge Gardephe's September 14, 2021 Order. (ECF No. 100) The number of days for each Plaintiff is set forth in the chart below. The Court then divides the amount of days (between the midpoint and date of Judge Gardephe's order) an divides that by 365 days per year and then multiplies that number by .09 to compute the 9% annual interest rate. Lastly, the Court multiplies that figure by the amount of compensatory damages awarded to the Plaintiff under the NYLL. These computations are set forth in the chart below. Based on these computations, I recommend the total Prejudgment Interest awards for each Plaintiff set forth in the last column of the chart:
Days btwn. Days Multiply Total Plaintiff Amount of midpoint and Divided by previous Amount of Compensatory date of District 365 days number by Prejudgment Damages Judge's Order per year 9% per Interest 2 annum J. Silva $51,662.31 2,267 6.211 .559 $28,879.23 S. Silva $67,358.52 2,417 6.622 .596 $40,145.68 S. Candla $34,803.06 2,161 5.920 .533 $18,550.03 S. Galindo $28,080.00 2,131 5.838 .525 $14,742.00 V. Rogelio $15,625.20 2,130 5.836 .525 $8,203.23
[Editor's Note: The preceding image contains the reference for footnote ].
The Court arrives at the total amount of damages by multiplying the amount of compensatory damages by the number that was multiplied by 9% per year. For example: .559 × $51,662.31 yields $28,879.24.
II. Attorneys’ Fees
The FLSA and NYLL both provide for an award of reasonable attorneys’ fees to successful plaintiffs. See 29 U.S.C. § 216(b) ; NYLL §§ 198(1-a), 663(1). Plaintiffs are represented by Michael Faillace & Associates, P.C. and the work was performed by attorneys Michael Faillace, William K. Oates, Joshua Androphy, Marisol Santos, Haleigh Armant, and a number of paralegals. (ECF No. 108.) Plaintiffs seek an attorneys’ fee award of $48,183.75. (ECF No. 128.)
Michael Faillace moved to withdraw as counsel for Plaintiff after being suspended from practice by the Southern District of New York effective November 8, 2021. (ECF No. 118.)
In Plaintiff's initial attorney's fee request, the fee amount was inconsistent. In the Declaration of William K. Oates in Support of Plaintiff's Motion for Attorney's Fees, Plaintiffs requested $43,953.75 and $44,223.75 in different sections of the Declaration. (ECF No. 108, ¶ 3, 11.) The Court confirmed counsel's computation against their billing records which yielded the latter number - $44,223.75. Plaintiff's supplemental request for attorney's fees requests $48,183.75. (ECF No. 128.)
Attorneys’ fee awards are typically determined using the lodestar approach, or "the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro–North R.R. , 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany , 522 F.3d 182, 183 (2d Cir. 2008) ); see also Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 553, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). "The reasonable hourly rate is the rate a paying client would be willing to pay," bearing in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill , 522 F.3d at 190.
In assessing whether the number of hours billed by the attorney is reasonable, courts consider "whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Grant v. Martinez , 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted). Plaintiff bears the burden to produce "contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done." Scott v. City of N.Y. , 626 F.3d 130, 133–34 (2d Cir. 2010) (citation omitted); see also Fisher v. SD Prot. Inc. , 948 F.3d 593, 600 (2d Cir. 2020).
District courts exercise "considerable discretion" in awarding attorneys’ fees. See D.B. ex rel. S.B. v. New York City Dep't of Educ. , 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (internal quotation marks and citation omitted), adopted by 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019) ; see also Hensley v. Eckerhart , 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ; McDaniel v. County. of Schenectady , 595 F.3d 411 (2d Cir. 2010) ; Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections , 522 F.3d 182, 190 (2d Cir. 2008). However, when awarding attorneys’ fees, the court must also "clearly and concisely state reasons supporting the award." Tackie v. Keff Enters. LLC , No. 14-CV-2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014) (first citing Hensley , 461 U.S. at 437, 103 S.Ct. 1933 ; then citing Matusick v. Erie Cnty. Water Auth. , 757 F.3d 31, 64 (2d Cir. 2014) ) (awarding attorneys’ fees under FLSA and NYLL).
a. Reasonable Hourly Rate
Courts in this district have determined that fees ranging from $250 to $450 is appropriate for experienced litigators in wage and hour cases. See, e.g., Xochimitl v. Pita Grill of Hell's Kitchen, Inc. , 2016 WL 4704917, at *20 (S.D.N.Y. Sept. 8, 2016) (finding a range of $250 to $450 per hour reasonable; collecting cases); Lopez v. Emerald Staffing, Inc. , No. 18 CIV. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) ("In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour"); See Trinidad v. Pret a Manger (USA) Ltd. , No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases).
Michael Faillace is the managing member of the Faillace Firm and has a decade of experience litigating employment actions in the federal courts. (Oates Decl. ¶ 5.) He seeks a rate of $450 per hour. (Id. ) This rate is at the upper limit of what courts in this District have deemed reasonable for experienced litigators in wage-and-hour cases. See, e.g., Lopez , 2020 WL 915821, at *13 ; Xochimitl , 2016 WL 4704917, at *20. Nonetheless, Courts have recently approved his rate and I recommend that it be accepted in this case. Guauque Castiblanco v. Don Alex Peru, Inc., No. 20CV2235MKBRML, 2021 WL 4755701, at *9 (E.D.N.Y. Aug. 20, 2021), report and recommendation adopted sub nom. Castiblanco v. Don Alex Peru, Inc., No. 20CV2235MKBRML, 2021 WL 4205195 (E.D.N.Y. Sept. 16, 2021) (The Court awarded Michael Faillace his requested rate of $450 per hour because it was commensurate with the rates routinely awarded in this district to attorneys with comparable backgrounds and experience.); Ramirez v. AAM Rest. LLC , No. 20-CV-4700 (VSB), 2021 WL 4238170, at *3 (S.D.N.Y. Aug. 2, 2021) (The Court awarded hourly rate of $450 for Michael Faillace).
Additionally, there were four other attorneys who performed work on this case. Joshua Androphy, is a senior attorney at the Faillace Firm and has been practicing employment litigation since 2005. According to the Declaration in this case, he works at a rate of $450 per hour. Marisol Santos an associate at the Faillace firm who has been working on employment law since 2013 charges an hourly rate of $350. (Oates Decl. ¶ 8.) Haleigh Amant is an associate at the Faillace firm and has been practicing employment law since 2017. Her hourly rate is $250.00 per hour. (Oates Decl. ¶ 9.) William K. Oates is an associate at the firm and has been practicing labor and employment law since 1995 at an hourly rate of $350 per hour. (Oates Decl. ¶ 6.)
However, Plaintiff's memorandum of law says his hourly rate is $400.00. (ECF No. 107 at p. 4.)
Mr. Androphy's rates are on the higher end of the range of rates received by similarly experienced employment law attorneys in this district, and, given that he was not the senior partner on the case, I recommend reducing his rate to $400 per hour, which is also consistent with the rate reflected in the billing records. Lopez v. Emerald Staffing, Inc. , No. 18 CIV. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) ("In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour"); See Trinidad v. Pret a Manger (USA) Ltd. , No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases).
Although the Declaration claims that Joshua works at a rate of $450.00 per hour, the billing records indicate that he was billed $400.00 for one hour of work – the only hour of work he was billed for the entire case. (Oates Decl. ¶ 7; ECF No. 108-1 at p. 6.)
The rate for Ms. Santos is high in relation to her experience and what has been deemed reasonable for associates in this district. Apolinario v. Luis Angie Deli Grocery Inc. , No. 14cv2328 (GHW), 2015 WL 4522984, at *3 (S.D.N.Y. July 27, 2015) (finding that a rate of $300 per hour would be appropriate for senior associates with at least eight years of experience); Tacuri v. Nithin Constr. Co., No. 14-CV-2908, 2015 WL 790060, at *13 (E.D.N.Y. Feb. 24, 2015) (finding that a rate of $300 per hour is a reasonable hourly rate for a senior associate). Accordingly, I recommend that Santos be awarded a rate of $300 per hour, but that Oates’ rate of $350 per hour and Amant's rate of $250 per hour be accepted by the Court because they are more in line with rates awarded to lawyers of their experience in similar cases. See, e.g., Singh v. Meadow Hill Mobile Inc. , 20-cv-3853, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021) (recognizing that rates for associates in FLSA cases in excess of $225 per hour are reserved for litigators with more than three years’ experience); Lin v. La Vie En Schezuan Rest. Corp. , No. 15-cv-9507, 2020 WL 1819942, at *3 (S.D.N.Y. Apr. 9, 2020) (a reasonable rate for senior attorneys handling wage and hours cases is $300 to $400 per hour); Liang Huo v. Go Sushi Go 9th Ave. , No. 13-CV-6573 (KBF), 2014 WL 1413532, at *8 (S.D.N.Y. April 10, 2014) (finding $350 to be appropriate for an attorney with 10 years of experience, the majority of which was spent on employment matters).
Plaintiffs seek a rate of $125 per hour for paralegals. (Oates Decl. ¶ 10.) However, $100.00 is more in line with what has been found reasonable by courts in this District for paralegals in similar cases. See Perez Garcia v. Hirakegoma Inc. , 2020 WL 1130765, at *12 (S.D.N.Y. Mar. 9, 2020) (finding hourly rate of $100 for paralegal reasonable in a labor and employment case brought by the Faillace Firm); Williams v. Metro-N. R.R. Co. , No. 1:17-CV-03847 (JGK), 2018 WL 3370678, at *8 (S.D.N.Y. June 28, 2018) (finding hourly rate of $100 reasonable), adopted by 2018 WL 3368713 (S.D.N.Y. July 10, 2018). Thus, I recommend a rate of $100 per hour for the paralegals. b. Reasonable Hours Expended
When assessing whether the hours worked were reasonable, courts consider whether " ‘at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.’ " Williams , 2018 WL 3370678, at *2 (quoting Samms v. Abrams , 198 F. Supp. 3d 311, 322 (S.D.N.Y. 2016) ); see also Grant v. Martinez , 973 F.2d 96, 99 (2d Cir. 1992). "Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded ... and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application." Kirsch v. Fleet St. , Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted); see also Williams , 2018 WL 3370678, at *2. Courts also consider the nature of the legal matter, reason for the fee award, whether the case involved complex issues "requiring particular attorney skills and experience, [which] may command higher attorney rates," and whether the case "require[ed] retention of a firm with the resources needed to prosecute a case effectively." Williams , 2018 WL 3370678, at *3 (citing Arbor Hill Concerned Citizens Neighborhood Ass'n , 522 F.3d at 185–87 ).
The timesheets submitted to the Court indicate that Michael Faillace spent 51.7 hours on this case and Marisol Santos spend 43.9 hours on this case. (ECF No. 108-1, See Billing Records). Additionally, William Oates completed 10.7 hours of work; Haleigh Amant completed 2.2 hours; and Joshua Androphy worked for one hour. (ECF No. 128-1.) The paralegals completed 7.75 hours of work at a rate of $125 per hour. (ECF No. 108-1.)
Plaintiffs have provided contemporaneous billing records which detail the hours expended and dates and descriptions of the tasks performed. (ECF No. 108-1.) Plaintiffs seek reimbursement of the total 126.35 hours of work on this case. Michael Faillace and Marisol Santos completed most of the work on this case that included reviewing and correcting the complaint, filing an amended complaint, preparing clients for depositions, deposing defendants, reviewing transcripts, participating in a settlement conference, preparing clients for a bench trial, and drafted documents in relation to their default motion and declarations. (ECF No. 108-1.) William Oates completed the bulk of the work regarding the attorney's fee application and the inquest hearing. Additionally, and while unrelated to the default proceedings, it appears that attorney Joshua Androphy worked for one hour reviewing documents and preparing clients for trial and Haleigh Amant worked for approximately 2.2 hours completing research, traveling and appearing at the final pre-trial conference. Given that there was a bench trial in this matter, along with numerous filings and coordination among the various plaintiffs, the hours expended were reasonable. Using the adjusted rates set forth above, I recommend awarding fees in the amount of $41,905.00.
III. Costs
Both the FLSA and NYLL entitle prevailing plaintiffs in wage-and-hour actions to recover costs. 29 U.S.C. § 216(b) ; NYLL § 663(1). "An award of costs ‘normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged to fee-paying clients.’ " Fisher v. SD Prot. Inc. , 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C. , 818 F.2d 278, 283 (2d Cir. 1987) ); see also Perez Garcia , 2020 WL 1130765 at *13.
Here, Plaintiffs seek to recover $5,293.90 in costs, including a $400 filing fee and approximately $200 in process server fees. Plaintiffs provided an accounting of disbursements, including the dates service was attempted on the Defendant to support their costs application. (ECF No. 108-1, See Billing Records.) Most of the additional costs are for interpretation services, including $450 interpreter fees for depositions. All of these costs are reasonable are reimbursable. See Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509, 515 (S.D.N.Y. 2011) (Court found that hourly rate of Spanish interpreter appears reasonable.); Xochimitl , 2016 WL 4704917 at *22 (awarding costs for filing and process server costs). Accordingly, I recommend awarding Plaintiffs costs in the amount of $5,293.90.
IV. Post-Judgment Interest
Plaintiffs also request an award of post-judgment interest. (ECF No. 107, p. 8). 28 U.S.C. § 1961 provides that an award of post-judgment interest is mandatory in any civil case where money damages are recovered. Duffy v. Oyster Bay Indus., Inc. , No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report and recommendation adopted , No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259749 (E.D.N.Y. June 2, 2011) ; see generally Begum v. Ariba Disc., Inc. , No. 12 Civ. 6620(DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case). Therefore, I respectfully recommend that the Plaintiffs also be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Id.
CONCLUSION
For the reasons set forth above, I recommend that each Plaintiff be awarded prejudgment interest as delineated in the chart above. I also recommend an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. Finally, I recommend awarding Plaintiffs attorneys’ fees in the amount of $41,905.00 and the requested amount of costs totaling $5,293.90. Plaintiffs are directed to serve a copy of this Report and Recommendation on Defendant and file proof of service of the same on the docket by no later than January 21, 2022.
NOTICE
The Defendant shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure (i.e., until February 5, 2017). See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Plaintiff shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure (i.e., until February 2, 2017).
If the Defendant files written objections to this Report and Recommendation, the Plaintiff may respond to the Petitioner's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Alternatively, if Plaintiff files written objections, the Defendant may respond to such objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2) ; see also Fed. R. Civ. P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 6(a), 6(d), 72(b) ; Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).