united states district court eastern district of new … · pedro dominguez, plaintiff, -against-b...

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------)( PEDRO DOMINGUEZ,

Plaintiff,

-against-

B S SUPERMARKET, INC., EDDY L. FERNANDEZ, and JOHN DOE,

Defendants.

---------------------------------------------------------------------)(

REPORT AND RECOMMENDATION

13 CV 7247 (RRM)

On December 20, 2013, plaintiff Pedro Dominguez commenced the above captioned case

against defendants B S Supermarket, Inc., doing business as Clarimar Supermarket ("Clarimar

Supermarket"), and Eddy L. Fernandez ("Fernandez"), as well as a John Doe defendant, alleging,

inter alia, violations ofthe Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 206(a), 207(a), the New

York Labor Law ("NYLL"), N.Y. Lab. Law§§ 160, 195(3), 652(1), and N.Y. Comp. Codes R. &

Regs., tit. 12, § 142-2.2. (Com pl. 1 ~ 1 ).

Despite proper service, defendants failed to appear and file an Answer or otherwise respond

to the Complaint, and on April22, 2014, plaintiff requested a Certificate of Default. On May 7,

2014, the Clerk of Court entered a Notation ofDefault against defendants Clarimar Supermarket and

Fernandez, and on May 29, 2014, plaintiffs Motion for Default Judgment was referred to the

undersigned to conduct an inquest to determine damages. A hearing was held on July 24, 2014, at

which plaintiff appeared, but defendants failed to appear.

Accordingly, for the reasons set forth below, the Court respectfully recommends that plaintiff

be awarded $142,196.32 in damages, consisting of $55,192.50 in unpaid overtime wages; 57,713.91

1Citations to "Compl." refer to plaintiffs Complaint, filed on December 20,2013.

Case 1:13-cv-07247-RRM-CLP Document 27 Filed 03/05/15 of 35 PageID #: 330

in liquidated damages; $2,500 for rate ofpay notification violations; $11,433.50 in attorneys' fees;

$475.15 in costs; and $14,881.26 in prejudgment interest.

FACTUAL BACKGROUND

From approximately 1988 through July 2013, plaintiff, Pedro Dominguez, was employed as a

butcher at the Clarimar Supermarket, located at 4118 3rd A venue, Brooklyn, New York. (Pl.'s Am.

Dec1.2 ~ 4; Com pl.~ 13). According to the Complaint, beginning on or around October 2004 .through

July 2013, the Clarimar Supermarket was owned and operated by defendants B S Supermarket Inc.

and Fernandez. (Compl. ~ 5; Pl.'s Am. Decl. ~ 5). Plaintiff alleges that he did not supervise any

other employees and that, in order to perform his duties, he dealt with supplies and food products that

originated in states other than New York. (Compl. ~~ 15, 16; Pl.'s Am. Decl. ~ 8).

Plaintiff alleges that he was an hourly employee, required to work 6 days per week, in shifts

of 9 hours per day. (Com pl. ~ 18; Pl.'s Am. Dec I. ~~ 9-1 0). He was only permitted to take a 30

minute lunch break each day and he received no tips or other compensation. (Compl. ~~ 17, 18; Pl.'s

Am. Dec I.~~ 9-1 0). Plaintiff alleges that from 2007 to 2012, he received payment for his services at

$11.25 per hour for the first 40 hours worked each week; and from September 2012 through his

termination in July 2013, plaintiff received payment of $12.50 per hour for the first 40 hours worked

in each week. (Pl.'s Am. Decl. ~~ 13-14).

2At the inquest hearing held on July 24, 2014, the Court Ordered plaintiff to file a letter resolving certain discrepancies between Mr. Dominguez's Declaration and the Complaint. On August 14, 2014, plaintiffs counsel filed a letter (hereinafter, "Pl.'s 8/14114 Ltr. ") explaining that "there was an error in plaintiffs claimed hourly rate during the relevant time period, likely due to a misunderstanding in the translation of plaintiffs original declaration." (Pl.'s 8/14114 Ltr. at 2-3 ). Plaintiff submitted an Amended Declaration along with the August 14th letter. Citations to "Pl.'s Am. Decl." refer to this Amended Declaration.

2


Plaintiff claims that defendants failed to compensate plaintiff in accordance with the overtime

provisions ofthe FLSA, New York Labor Law, and New York Codes, Rules and Regulations

overtime provisions, in that they failed to pay him time-and-a-half of his regular hourly rate for all

hours worked over 40 hours in a work week. (Compl. ~~ 30-33, 44-47). Plaintiff also alleges that

since he was not paid anything for the work performed over the 40 hours per week, defendants

violated the minimum wage provisions of the FLSA and NYLL.3 (Id. ~~ 37-40, 49-54 (alleging that

"for all of the hours that plaintiffworked per week in excess of forty, the defendants did not

compensate plaintiff at any rate of pay, which obviously means that they compensated plaintiff for

those hours at an hourly rate less than the minimum wage")). Finally, plaintiff brings a claim

pursuant to Section 195(3) ofthe New York Labor Law, which requires employers to furnish

employees with accurate wage statements, which plaintiff alleges defendants never provided. (ld. ~~

56-59).

This action was commenced on December 20, 2013. (Borrelli Decl.4 ~ 45). According to

plaintiffs counsel, the Summons and Complaint were served on both defendant Fernandez and

Clarimar Supermarket by service upon Manny Nunez on February 12, 20141 (Id. ~~ 5, 6, Exs. B, C).

Mr. Fernandez was also served by first class mail, addressed to 4118 3rd Avenue, Brooklyn, N.Y., on

February 14, 2014. (Id. ~ 5, Ex. B). A Default was entered by the Clerk of Court on May 7, 2014,

3 Although plaintiff claims that defendants violated both the overtime and minimum wage provisions of the FLSA and NYLL, his papers make clear that the damages he seeks for those violations are the same. (Pl.'s 8/14/14 Ltr. at 3-7).

4Citations to "Borrelli Decl." refer to the Declaration of Michael J. Borrelli, Esq., in Support of Plaintiffs Motion for Actual Damages, Liquidated Damages, Statutory Damages, Pre-Judgment and Post-Judgment Interest, Attorneys' Fees and Costs, dated June 25, 2014.

5Mr. Borelli's Declaration mistakenly states that the Complaint was filed on December 30, 2013.

3


and on May 13, 2014, plaintiff filed a motion for default judgment against defendants Fernandez and

Clarimar Supermarket. (Id. ~~ 8, 9, Ex. D).6 The motion for default was referred to this Court on

May 29, 2014, to conduct an inquest and issue a Report and Recommendation as to damages. (Id. ~

I 0).

By Order dated June 3, 2014, this Court scheduled the inquest hearing and directed plaintiff

to serve copies ofthe Court's Order on defendants and to provide receipts demonstrating service.

Pursuant to that Order, plaintiff served both defendants at the address listed with the New York State

Department- 4118 3rd A venue, Brooklyn, N.Y. (Pl.'s 8/14114 Ltr. at 1, Exs. B, C). On June 28,

2014, the Postal Service notified plaintiffs counsel that it was unable to deliver the mailings to

defendants at that address, so plaintiff attempted to serve defendants again. (ld. at 1-2, Ex. D). Upon

further investigation, plaintiff determined that Clarimar Supermarket had closed and that no

forwarding address had been left with the Postal Service. (ld. at 2). Plaintiffs counsel represents

that despite a diligent search, he has been unable to locate another address for service. (Id.)

DISCUSSION

I. Default Judgment

A. Legal Standard

Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for entry of a

default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). First, the Clerk

of Court enters the default pursuant to Rule 55(a) by notation of the party's default on the Clerk's

record ofthe case. See id. at 95, 96; Fed R. Civ. P. 55(a) (providing that "[w]hen a party against

6Plaintiff also filed a motion to voluntarily dismiss the John Doe defendant from the action. (Id. ~ 9, Ex. E). It is respectfully recommended that this motion be granted.

4


whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that

failure is shown by affidavit or otherwise, the clerk must enter the party's default"). Second, after the

Clerk of Court enters a default against a party, if that party fails to appear or otherwise move to set

aside the default pursuant to Rule 55( c), the court may enter a default judgment. See Fed. R. Civ. P.

55(b).

Providing guidance as to when a default judgment is appropriate, the Second Circuit has

cautioned that since a default judgment is an extreme remedy, it should only be entered as a last

resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981 ). While the Second Circuit has

recognized the "push on a trial court to dispose of cases that, in disregard of the rules, are not

processed expeditiously [and] ... delay and clog its calendar," it has held that the district court must

balance that interest with its responsibility to "[afford] litigants a reasonable chance to be heard."

Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light ofthe "oft-stated preference for

resolving disputes on the merits," default judgments are "generally disfavored," and doubts should be

resolved in favor of the defaulting party. llL. Accordingly, plaintiffs are not entitled to a default

judgment as a matter of right simply because a defendant is in default. See Erwin DeMarino

Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must "supervise

default judgments with extreme care to avoid miscarriages of justice").

The Court has significant discretion to consider a number of factors in deciding whether to

grant a default judgment, including: (1) whether the grounds for default are clearly established; (2)

whether the claims were pleaded in the complaint, thereby placing the defendants on notice, see Fed.

R. Civ. P. 54(c) (stating "[a] default judgment must not differ in kind from, or exceed in amount,

what is demanded in the pleadings"); King v. STL Consulting, LLC, No. 05 CV 2719, 2006 WL

3335115, at *4-5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding

5


damages that accrued during the pendency of a litigation, so long as the complaint put the defendant

on notice that the plaintiff may seek such damages); and (3) the amount of money potentially

involved the more money involved, the less justification for entering the default judgment. Hirsch

v.Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992).

Additionally, the Court may consider whether material issues of fact remain, whether the facts alleged

in the complaint state a valid cause of action, whether plaintiffs have been substantially prejudiced by

the delay involved, and whether the default judgment might have a harsh effect on the defendants.

See Pacific M.Int'l Corp. v. Raman lnt'l Gems, Ltd., 888 F. Supp. 2d 385,393 (S.D.N.Y. 2012).

The burden is on the plaintiff to establish his entitlement to recovery. See Greyhound

ExhibitGroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S.

1080 (1993). When a default judgment is entered, the defendants are deemed to have admitted all

well-pleaded allegations in the complaint pertaining to liability. See id. Thus, for the purposes of an

inquest, the court accepts as true all factual allegations in the complaint, except those claims relating

to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61,65 (2d Cir. 1981).

B. Entry of Default Judgment

1. Liability for Damages Alleged in Complaint

In this case, plaintiff alleges that defendants violated the FLSA, 29 U.S.C. §§ 206(a), 207(a),

et seq., and the New York State Minimum Wage Act, N.Y. Lab. Law§§ 650, 652, et seq.; N.Y.

Comp. Codes R. & Regs. tit. 12, §§ 142-2.4(a), by failing to pay minimum wages and overtime at the

rate of one-and-a-halftimes plaintiffs regular rate of pay. (Compl. ~~ 30-33, 37-40, 44-47, 49-54;

6


Pl.'s Mem.7 at 1). Plaintiffthus seeks to recover an amount equivalent to his unpaid wages and

liquidated damages, pursuant to 29 U.S.C. §§ 201, 207(a), 216(b) et seq.; N.Y. Lab. Law§§ 650,

652(1), 663(1) et seq.; and N.Y. Comp. Codes R. & Regs. tit. 12, §§ 142-2.4, 146-1.4. Plaintiff also

seeks attorneys' fees and costs, pursuant to 29 U.S.C. § 216(b), and N.Y. Lab. Law§ 663(1). (See

Compl. ~~ 32-33,39-40,46-47, 53-54; Pl.'s Mem. at 3-10). Additionally, plaintiff seeks damages

based on defendants' failure to furnish plaintiff with proper wage statements, as required by N.Y.

Lab. Law§§ 195, 198 (see Compl. ~~58-59; Pl.'s Mem. at 1 0), as well as interest, attorneys' fees and

costs. (Compl. ~59; Pl.'s Mem. at 1 0-19).

a) Fair Labor Standards Act

To establish a claim under the FLSA, a plaintiff must prove the following: ( 1) the defendant

is an enterprise participating in commerce or the production of goods for the purpose of commerce;

(2) the plaintiff is an "employee" within the meaning of the FLSA; and (3) the employment

relationship is not exempted from the FLSA. Edwards v. Community Enters., Inc., 251 F. Supp. 2d

1089, 1098 (D. Conn. 2003) (citing Tony & Susan Alamo Found. v. Sec. of Labor, 471 U.S. 290,295

( 1985)).

A defendant is an"[ e ]nterprise engaged in commerce or in the production of goods for

commerce" if the defendant is an enterprise that:

has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and ...

7Citations to "Pl.'s Mem." refer to plaintiffs Memorandum of Law in Support of Plaintiffs Motion for Actual Damages, Liquidated Damages, Statutory Damages, Pre-Judgment and Post-Judgment Interest, Attorneys' Fees, and Costs, dated June 25, 2014.

7


[whose] annual gross volume of sales made or business done is not less than $500,000.

29 U.S.C. § 203(s)(l)(A)(i)-(ii). In his Complaint, plaintiff alleges that during the course of his

employment, Clarimar Supermarket's annual business exceeded $500,000 and that he handled goods

and products that were moved in interstate commerce. (Compl. ~ 8). Thus, plaintiff alleges that

defendant Clarimar was, at the relevant times, an employer engaged in interstate commerce and/or the

production of goods for commerce within the meaning of the FLSA. (Id.)

As for defendant Fernandez, plaintiff alleges that during the relevant period of time,

Fernandez was the owner or principal of Clarimar Supermarket, and that he had the power to set

plaintiffs rate of pay, his work schedule, job duties, and all terms and conditions ofplaintiffs

employment. (Id. ~~ 13, 14).8 Under the FLSA, an "employer" is "any person acting directly or

indirectly in the interest of an employer in relation to an employee .... " 29 U.S.C. § 203(d).

"Person" is defined as "an individual, pm1nership, association, corporation, business trust, legal

representative, or any organized group of persons." 29 U.S.C. § 203(a). To "employ" means "to

suffer or permit to work." 29 U.S.C. § 203(g). An individual may be liable as an employer under the

FLSA so long as he exercises "operational control" over the employee in question. See Irizarry v.

Catsimatidis, 722 F.3d 99, II 0 (2d Cir. 20 I3), and individuals who are found to be "employers"

under the FLSA may be held jointly and severally liable to the plaintiff. Moon v. Kwon, 248 F. Supp.

2d, 201,237 (S.D.N.Y. 2002). Based on the allegations in the Complaint regarding defendant

Fernandez, plaintiff has adequately alleged the elements necessary to state a claim against Fernandez

as an "employer," and thus, defendants Clarimar Supermarket and Fernandez are jointly and severally

8Plaintiff actually alleges that Fernandez is "a serial and willful violator of the FLSA and NYLL's overtime and minimum wage requirements," in that a prior suit was brought against him alleging NYLL violations. (Compl. ~ 11 ).

8


liable to plaintiff.

The FLSA defines an "employee" as "any individual employed by an employer." 29 U.S.C. §

203(e)(l); Edwards v. Community Enters., Inc., 251 F. Supp. 2d at 1098. The FLSA covers both

"employees who in any workweek [are] engaged in commerce ot· in the production of goods for

commerce" and those persons who are "employed in an enterprise engaged in commerce or in the

production of goods for commerce ... " 29 U.S.C. § 206(a).

Plaintiff alleges in the Complaint that he was an employee engaged in commerce and/or in the

production of goods for commerce, as defined by the FLSA. (See Compl. ~~ 4, 8). It follows,

therefore, that for purposes of this default, he qualifies as an "employee" under the FLSA.

Additionally, the Court does not find any basis for exempting the employment relationship at issue

from the FLSA's provisions. See 29 U.S.C. § 213(a) (setting forth the exemptions).

Plaintiff alleges that during the period of his employment, he was scheduled to work

approximately 6 days a week, with Tuesdays as his day off from work. (Pl.'s Am. Dec!.~~ 10-11).

On the days that he worked, his schedule ran from 8:00a.m. to 5:00p.m., with a half-hour lunch

break, fot· a total of 51 hours per week. 9 (I d. ~~ 9-11 ). Plaintiff alleges that from 2007 to 2012, he

was paid at a rate of $11.25 per hour for the first 40 hours worked in a week, and that from

September 2012 until the termination of his employment in July 2013, he was compensated at a rate

of $12.50 per hour for the first 40 hours worked in each week. (Id. ~~ 13-14). Plaintiff further

alleges that he was never paid overtime for any of the hours he worked over 40 hours per week. (Id.

~~ 9, I 0; Com pl. ~ 23). In fact, he claims that during this entire time, he was not paid at all for the

9 As noted supra at 2, plaintiff alleges that he worked 6 days per week in 9 hour shifts for a total of 54 hours. In seeking damages, he has subtracted the half-hour lunch break each day, which amounts to 3 hours per week, and claims damages based on 51 hours of work per week.

9


time worked in excess of 40 hours. (Compl. ~ 12).

Thus, because defendants are in default, the Court accepts plaintiffs uncontested allegations

as to liability as true, and respectfully recommends that plaintiff be deemed to have sufficiently set

forth the necessary elements to state a claim under the FLSA against both the corporate defendant,

Clarimar Supermarket, and against defendant Fernandez.

b) New York Labor Law

Plaintiff also alleges that defendants violated the NYLL. Like the FLSA, the NYLL

establishes certain minimum wage rates and requires that employees be compensated at an overtime

rate of one-and-one-halftimes their regular hourly pay for time worked in excess of 40 hours in a

week. See N.Y. Lab. Law§ 160; N.Y. Comp. Code. R. & Regs. tit. 12, §§ 142-2.2; see also Noble v.

93 Univ. Place Corp., 303 F. Supp. 2d 365, 376 (S.D.N.Y. 2003).

To recover under the NYLL, plaintiff must prove that he was an "employee" and that the

defendant is an "employer" as defined by the statute. See Lauria v. Heffernan, 607 F. Supp. 2d 403,

407, 408 (E.D.N.Y. 2009). Unlike the FLSA, the NYLL does not require that a defendant achieve a

certain minimum in annual sales or business in order to be subject to the law. See N.Y. Lab. Law§

651 (6) (defining employer as "any individual, partnership, association, corporation, limited liability

company, business trust, legal representative, or any organized group of persons acting as employer").

Any parties found to be employers under the NYLL are jointly and severally liable to plaintiff. See

Tacuri v. Nithun Constr. Co., 14 CV 2908, 2015 WL 790060, at *5 (E.D.N.Y. Feb. 24, 2015); Karic

v. Major Automotive Cos., 992 F. Supp. 2d 196, 200 (E.D.N.Y. 2014). Similarly, an employee is

simply defined as "any individual employed or permitted to work by an employer in any occupation."

N.Y. Lab. Law§ 651(5).

10


In this case, plaintiff alleges that he was employed by defendants within the meaning of

Sections 2 and 651 of the NYLL. (See Compl. ~~ 8, 10, 36, 50). Plaintiff further alleges that

defendants willfully failed to pay him overtime as prescribed by the NYLL (id. ~ 45), and willfully

failed to pay him the minimum wage for each hour that he worked over 40 hours in a week, in

violation of the NYLL. (Id. ~~51-52). Moreover, plaintiff alleges that when he was paid, the

defendants failed to provide him with a statement that listed his hourly rate of pay, his overtime pay,

and the basis of computing straight pay and overtime pay, also in violation of the NYLL. (Id. ~ 57).

Accordingly, based on these uncontested allegations, the Court respectfully recommends that

plaintiff be deemed to have adequately alleged the elements necessary to state a claim against both

defendants under the New York Labor Law.

2. Default Determination

Based upon a review of the allegations in the Complaint, which are undisputed at this time,

and for the reasons stated herein, the Court finds that plaintiff has sufficiently established liability as

to warrant entry of a default judgment for damages.

Here, it is beyond dispute that defendants are in default. The corporate defendant, Clarimar

Supermarket, is in default because it never filed an answer nor did it retain an attorney to represent it

in this action. The failure by the corporate defendant to obtain counsel in this case constitutes a

failure to defend because a corporation cannot proceed QIQ. ~ in federal court. See Shapiro, Bernstein

& Co. v. Cont'l Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam) (stating that "it is settled

law that a corporation cannot appear other than by its attorney"); see also Grace v. Bank Leumi Trust

Co. ofN.Y., 443 F.3d 180, 192 (2d Cir. 2006); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20,

22 (2d Cir. 1983) (discussing the rationale for requiring corporations, as "artificial" entities, to appear

11


only through counsel). Defendant Fernandez also failed to appear and answer or otherwise respond to

the Complaint. Moreover, the defendants also failed to appear at the inquest hearing. See Hirsch v.

Innovation Int'l, Inc., 1992 WL 316143, at *2 (holding that "[defendant's] default is crystal clear- it

does not even oppose this motion [for entry of default judgment]").

Here, defendants' failure to respond to the Complaint warrants the entry of a default

judgment. Further, the amount of money involved in this case is relatively insignificant. Cf. id.

(entering default but giving defendant 20 days to set aside the default because plaintiffs damages

request ran well into the millions of dollars).

Given the numerous opportunities afforded to defendants, and their failure to participate in

these proceedings, the Cow1 finds no compelling reason to delay fw1her. Accordingly, it is

respectfully recommended that default judgment be entered against defendants Fernandez and

Clarimar Supermarket.

II. Damages

A. Legal Standard

As noted supra, when a default judgment is entered, the defendants are deemed to have

admitted all well-pleaded allegations in the Complaint pe11aining to liability. See Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ'g Corp. v. Ryan, 807 F.

Supp. 975, 977 (S.D.N.Y. 1992) (citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir.

1989)); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65; Deshmukh v. Cook, 630 F. Supp. 956,

959-60 (S.D.N.Y. 1986). However, the plaintiff must still prove damages in an evidentiary

proceeding at which the defendants have the opportunity to contest the claimed damages. See

Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. "'While a default judgment

12


constitutes an admission of liability, the quantum of damages remains to be established by proof

unless the amount is liquidated or susceptible ofmathematical computation."' Levesque v. Kelly

Commc'ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993) (quoting Flaks v.

Koegel, 504 F.2d 702, 707 (2d Cir. 1974)).

When a court enters a default judgment and the amount of damages sought does not consist

of a sum certain, Rule 55(b) of the Federal Rules of Civil Procedure provides that "[t]he Court may

conduct hearings or make referrals- preserving any federal statutory right to a jury trial- when, to

enter or effectuate judgment, it needs to ... determine the amount of damages." Fed. R. Civ. P.

55(b)(2)(b). While "the court must ensure that there is a basis for the damages specified in a default

judgment, it may, but need not, make the determination through a hearing." Fustok v.

Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), affd, 873

F.2d 38 (2d Cir. 1989).

In this case, an inquest hearing was held on July 24, 2014 before the undersigned, at which

plaintiff appeared but defendants did not. Since both defendants are in default, plaintiffs evidence

on damages is undisputed.

B. Damages Requested by Plaintiff

1. Overtime Wages

a) Standards

As an initial matter, plaintiffs Amended Declaration and submissions as to the hours worked

and rate of pay received are sufficient bases for this Court to recommend an award of damages, even

in the absence of further documentation. Under the FLSA, an employee-plaintiff generally "has the

burden of proving that he performed work for which he was not properly compensated." Santillan v.

13


Henao, 822 F. Supp. 2d 284,293-94 (E.D.N.Y. 2011) (quoting Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680, 687 (1946), superseded on other grounds by 29 U.S.C. § 251, et seq). The Supreme

Court in Anderson v. Mt. Clemens Pottery Co. noted, however, that "employees seldom keep ...

records [of hours worked] themselves; even ifthey do, the records may be and frequently are

untrustworthy." 328 U.S. at 687. By defaulting, defendants have "deprived the plaintiff of the

necessary employee records required by the FLSA, thus hampering plaintiffs ability to prove his

damages." Santillan v. Henao, 822 F. Supp. 2d at 294. In default cases, the Supreme Court has held

that "an employee has carried out his burden if he proves that he has in fact performed work for

which he was improperly compensated and if he produces sufficient evidence to show the amount and

extent of that work as a matter of just and reasonable inference." Tran v. Alphonse Hotel Corp., 281

F.3d 23, 31 (2d Cir. 2002) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687),

overruled on other grounds, Slayton v. Am. Express Co., 460 F.3d 216 (2d Cir. 2006).

In light of this holding, courts in this Circuit have held that where a defendant-employer

defaults, a plaintiff may meet this burden ofproof"by relying on his recollection alone." Doo Nam

Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005). Otherwise, defendants in FLSA

cases would stand to benefit from choosing not to cooperate with discovery or litigation efforts, and

"[o]ne should not be permitted to profit by its own wrongful act." Boyke v. Superior Credit Corp.,

No. 01 CV 0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) (citing 29 U.S.C. § 211(c),

which requires that employers "make, keep, and preserve ... records ofthe persons employed by him

and of the wages, hours, and other conditions and practices of employment"); see also Park v. Seoul

Broad. Sys. Co., No. 05 CV 8956,2008 WL 619034, at *7 (S.D.N.Y. Mar. 6, 2008) (holding that

courts should apply a "special burden-shifting standard" where employers fail to comply with this

statutory duty of record keeping).

14


New York law also requires that employers keep various, detailed employment records. Like

the FLSA, the NYLL requires that employers keep employment records in their course of business

relating to employees' rates of pay, hours, dates of work, and payroll, among other information. See

N.Y. Lab. Law§ 195(l)(a) (requiring an employer to "provide his or her employees, in writing ... a

notice containing ... the rate or rates of pay thereof, whether paid by the hour, shift, day, week,

salary, piece, commission, or other allowances"); N.Y. Lab. Law§ 195(2) (requiring employers to

notify employees of any changes in the pay day prior to changing the pay day); N.Y. Lab. Law§

195(3) (employers must "furnish each employee with a statement with every payment ofwages,

listing ... the dates of work ... gross wages; deductions; allowances, if any claimed as part of the

minimum wage; and net wages"); N.Y. Lab. Law§ 195(4) (requiring employers to "establish,

maintain[,] and preserve for not less than three years payroll records showing the hours worked, gross

wages, deductions and net wages for each employee"). Thus, where the defendant has failed to

maintain proper records, the burden of proving that plaintiff was paid properly falls on the defendant.

See Marin v. JMP Restoration Corp., 09 CV 1384,2012 WL 4369748, at *6 (E.D.N.Y. Aug. 24,

20 12) (explaining that "[t]o determine NYLL overtime damages, courts use the same burden-shifting

scheme employed in FLSA actions").

Thus, under both federal and state laws, defendant-employers have an obligation to keep

records, and by virtue of defendants' default, plaintiffs "recollection and estimates of hours worked

are presumed to be correct." Liu v. Jen Chu Fashion Corp., No. 00 CV 4221, 2004 WL 33412, at *3

(S.D.N.Y. Jan. 7, 2004). Plaintiff claims not only that he is owed overtime wages, but also that he

never received any wages at all for the time worked over 40 hours per week. (Pl.'s Am. Dec!.~ 14);

see 29 U.S.C. § 206(a) (instituting a $7.25 per hour minimum wage as of July 24, 2009); N.Y. Comp.

Codes R. & Regs. tit. 12, § 146-1.2 (requiring a basic minimum hourly wage of$7.25 per hour on

15


and after January 1, 2011, through the time ofplaintiffs employment).

Here, because defendants did not meet their obligation to provide plaintiff with records, the

only evidence offered to support plaintiffs claim that he was paid less than the minimum wage for

the hours worked over 40 in a work week, consists of plaintiffs Amended Declaration. Although

plaintiff is unable to offer additional records to corroborate these claims, given that the defendants

have not appeared in this action to challenge plaintiffs claims, the Court finds plaintiffs evidence as

to hours worked and wages paid credible.

Under both federal and New York law, an employee is entitled to ove1iime pay, or one and

one-halftimes the employee's regular rate, for hours worked in excess of 40 hours in one work week.

See 29 U.S.C. § 207(a)(2)(C); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.4. Accordingly, this

Court has examined plaintiffs submissions and calculated damages based on the applicable statutes.

b) Calculation of Ove1iime Pay

According to plaintiffs Amended Declaration, he was employed at Clarimar Supermarket

beginning in 1988 until his termination in July 2013, working 51 hours a week and receiving no pay

for the hours worked over 40 in a week. (Pl.'s Am. Dec!. ~~ 4, 1 0-12). The FLSA has a statute of

limitations ofthree years for willful violations. 29 U.S.C. § 255(a). Here, plaintiff alleges that

defendants' conduct was willful. (Compl. ~~ I, II, 26, 31, 38). Since defendants have defaulted,

there has been no evidence offered to demonstrate that their failure to pay adequate wages was carried

out with a good faith belief that their compensation practices were in compliance with the FLSA.

Thus, the Court finds that plaintiff is entitled to overtime wages under the FLSA for a period from

December 20, 2010- 3 years before plaintiff filed his Complaint- to July 31, 2013, the date plaintiff

was terminated.

16


Under NYLL's six-year statute of limitations, see N.Y. Lab. Law§ 663(3), plaintiff is entitled

to recover overtime wages, calculated at the rate of one and one-half times his regular rate of pay for

any hour worked over 40 in a given workweek, from December 20, 2007-6 years prior to the date

plaintiff commenced this action- to July 31, 2013, the date plaintiff was terminated. Since plaintiff

is not entitled to recover double damages under both the FLSA and the NYLL, Janus v. Regalis

Constr, Inc., 11 CV 5788,2012 WL 3878113, at *7 (E.D.N.Y. July 23, 2012), report and

recommendation adopted by 11 CV 5788, 2012 WL 3877963 (E.D.N.Y. Sept. 4, 2012); Ke v. Saigon

Grill, Inc., 595 F. Supp. 2d 240, 264 n.4 (S.D.N.Y. 2008), and since the method for calculating

overtime under both the FLSA and NYLL is the same, the Court has calculated overtime wages owed

from December 20, 2007 until July 31, 2013.

Plaintiff alleges that for the first 40 hours that he worked in a given week, he was paid at the

rate of $11.25 per hour for the period December 20, 2007 up to, but not including, September I,

2012. 10 (Pl.'s Am. Decl. ~~ 13-14; Pl.'s 8/14/14 Ltr. at 3-4). Plaintifffurther asse1ts that from

10Plaintiffs Complaint was inconsistent as to plaintiffs hourly rates of pay. In Paragraph 12 of the Complaint, plaintiff asserts that he was paid $1 0. 00 per hour " [ f]rom 2007 through the beginning of2008," $11.25 per hour "[f]rom the remainder of2008 through 2010," and $12.50 per hour "[f]rom 2010 through July of2013." (Compl. ~ 12). In Paragraphs 21 and 22 of the Complaint, however, plaintiff claims that he was paid $11.25 per hour "[f]rom 2007 to 2008" and $12.50 per hour "[f]rom 2008 through Defendant's termination of Plaintiffs employment" in July 2013. (Id. ~~ 21-22). Pursuant to this Comi's Order, plaintiff filed a letter on August 14, 2014, along with his Amended Declaration, stating that he was paid $11.25 per hour "[f]rom 2007 to 2012" and $12.50 per hour from "September of2012 ... until the termination of [his] employment with Defendants in July 2013." (Pl.'s Am. Decl. ~~ 13-14). The August 14 letter clarifies that plaintiff seeks overtime payments at a rate of 1.5 times an hourly rate of$11.25 per hour from December 20,2007 to September 1, 2012, and $12.50 per hour from September 1, 2012 to July 31, 2013. (Pl.'s 8/14114 Ltr. at 3 ). Although Federal Rule of Civil Procedure 54(c) provides that "[a] default judgment must not ... exceed in amount, what is demanded in the pleadings," it appears that in the August 14th letter and the Amended Declaration, plaintiff is claiming to be entitled to less than he seeks in the Complaint. Thus, the Court has calculated damages based on the rates of pay provided in the letter and Amended

17


September 1, 2012 to July 31, 2013, he was paid at the rate of $12.50 per hour. (Pl.'s Am. Dec I.~~

13-14; Pl.'s 8/14114 Ltr. at 3-4).

Crediting plaintiffs testimony that he worked 51 hours per week for the entire period, but

was only paid for 40 hours a week (Pl.'s Am. Dec I.~ I 0), that means he worked II hours each week

for which he received no compensation. Since all of these hours were worked in excess of 40 hours

in their respective work-weeks, plaintiff was entitled to be paid at the overtime rate of 1.5 times his

regular rate of pay for these hours. Thus, the Court has determined plaintiffs unpaid wages for these

hours by multiplying the number of unpaid hours each week (11 ), by the number of weeks plaintiff

worked, multiplied by plaintiffs overtime rate of pay. 11 Using the time periods and rates of pay set

forth in plaintiffs Amended Declaration, plaintiff was entitled to receive overtime payments at the

following rates for every hour over 40 that he worked:

Declaration.

11 This is equivalent to calculating plaintiffs unpaid regular wages (by multiplying the number of hours worked for which plaintiff was not paid each week by the number of weeks worked by plaintiffs regular rate of pay) and then adding the additional amount of overtime wages owed, since these hours were worked in excess of forty (which would be calculated by multiplying the amount of regular wages owed by .5). Although plaintiff made claims for unpaid minimum wages, as well as unpaid overtime compensation for the hours he worked in excess of 40, according to the FLSA, plaintiff is entitled to be paid at a rate "not less than one and one-halftimes the regular rate at which he is employed" for hours worked over 40. 29 U.S.C. § 207. Federal regulations make clear that "[i]fthe employee's regular rate of pay is higher than the statutory minimum, his overtime compensation must be computed at a rate not less than one and one-halftimes such higher rate." 29 C.P.R.§ 778.107. New York law also requires that employees be compensated at "one and one-halftimes the employer's regular rate of pay" and provides that the regular rate should be calculated "in the manner and methods provided in" the FLSA. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. Thus, the Court has calculated plaintiffs damages using his regular rate of pay, not the minimum wage rate.

18


Total Overtime Regular Total Amount Period Hours Rate of Pay Overtime Rate Owed

1/20/07-8/31/12 2,684 $11.25 $16.875 $45.292.50

9/1112-7/31113 528 $12.50 $18.75 $9,900.00

TOTAL OWED IN OVERTIME WAGES: $55,192.50

Accordingly, it is respectfully recommended that plaintiff be awarded $55,192.50 in overtime

wages.

2. Liquidated Damages Under the FLSA and NYLL

In addition to compensatory damages, plaintiff seeks liquidated damages pursuant to both

federal and state law. See 29 U.S.C. § 216(b ); N.Y. Lab. Law § 663(1 ). Under the FLSA, an

employer who fails to pay his or her employees the minimum wage or overtime compensation

required by Sections 206 and 207 is "liable to the employee ... affected in the amount of [his or her]

unpaid minimum wages, or [his or her] unpaid overtime compensation ... and in an additional equal

amount as liquidated damages," 29 U.S.C. § 216(b), unless the employer can demonstrate that he or

she acted in good faith and had reasonable grounds for believing that the act or omission in proper

payment was not a violation of the FLSA. Jemine v. Dennis, 901 F. Supp. 2d 365, 388 (E.D.N.Y.

2012) (citing 29 U.S.C. §§ 216(b), 260). This award serves as "compensation to the employee

occasioned by the delay in receiving wages caused by the employer's violation of the FLSA." ld.

(quoting Herman v. RSR Sees. Servs., Ltd., 172 F. 3d 132, 141-42 (2d Cir. 1999)). Since the

defendants have defaulted and not demonstrated that they acted in good faith in failing to pay

19


overtime to plaintiff, the Court finds that plaintiff is entitled to an award of liquidated damages under

the FLSA.

Similarly, under the NYLL, an employee is entitled to receive liquidated damages unless the

employer provides a good faith basis for believing he or she was in compliance with the law. See

Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013). In the absence ofproofofa good faith

basis, plaintiff is entitled to recover an additional 25% of the wages owed to him as liquidated

damages for offenses committed prior to April 9, 20 II, and for offenses occurring after that date, an

employee is entitled to liquidated damages "equal to one hundred percent of the total of such

underpayments found to be due." Id. at 144 (holding that the amendments to the NYLL that went

into effect on April 9, 2011, raising the amount of liquidated damages recoverable under the statute,

could not be applied retroactively); N.Y. Lab. Law§ 663(1). In contrast to the analogous FLSA

provision, the purpose of the state law is to "constitute a penalty to deter an employer's willful

withholding of wages due." Jemine v. Dennis, 901 F. Supp. 2d at 388 (quoting Reilly v. Natwest

Mkts. Group, Inc., 181 F.3d 253, 265 (2d Cir. 1999)).

In this Circuit, "the majority view is that plaintiffs may recover liquidated damages under

both statutes because each award serves fundamentally different purposes." Gomez v. El Rancho de

Andres Carne de Tres, Inc., No. 12 CV 1264,2014 WL 1310296, at *8 (E.D.N.Y. March II, 2014);

see also Jemine v. Dennis, 901 F. Supp. 2d at 388; Maliza v. 2011 MAR-OS Fashion, Inc., No. 07

CV 463,2010 WL 502955, at *I, n.4 (E.D.N.Y. Feb. 10, 2010); Ke v. Saigon Grill, Inc., 595 F.

Supp. 2d at 261-62.

In calculating liquidated damages, the Court determined the amount owed in overtime wages

from December 20, 20 I 0, the beginning of the FLSA period, up to, but not including September I,

2012 (the "initial period"), after which plaintiff's salary was increased. Thus, for the initial period,

20


given that plaintiffwas paid at the regular rate of$11.25 per hour for hours worked up to 40, and his

overtime rate was $16.875 per hour, he was owed $16,335 in overtime during this period of 88

workweeks. For the subsequent period, running from September I, 2012 until July 31, 2013, the date

of plaintiffs termination, plaintiffwas paid at a rate of$12.50 per hour for hours worked up to 40;

thus, plaintiffwas owed overtime of$9,900.00 based on a period of 48 workweeks.

Thus, since liquidated damages under the FLSA are to be awarded at the rate of 100% of the

unpaid overtime wages owed, plaintiff is entitled to receive $26,235.00 in liquidated damages,

representing the total amount owed in unpaid overtime for the three-year period covered by the

FLSA.

Under the NYLL, plaintiff is entitled to liquidated damages equal to 25% of the unpaid

overtime wages for the period from December 20, 2007 up to, but not including, April 9, 2011, a

period of 173 workweeks. Thus, for this period, plaintiff should receive $8,028.28 in liquidated

damages. This number was calculated by multiplying 11 hours per week in overtime, times $16.875,

representing time and a half of his regular hourly rate of $11.25 per hour, times 173 weeks in this

period, and then taking 25% of that amount.

Beginning on April 9, 2011, the rate of liquidated damages under the New York Labor Law

increased from 25% to I 00% of overtime owed. Thus, for the period from April 9, 20 II until July

31, 2013, the date plaintiff was terminated, plaintiff is entitled to receive I 00% of the overtime wages

he was owed as liquidated damages. Since plaintiff was paid at a rate of $11.25 per hour for the

period from April9, 2011 until September 1, 2012- a period of73 workweeks- plaintiff is entitled

to receive $13,550.63 12 in liquidated damages under the NYLL for this period. From September 1,

12 11 hours of overtime per week times 73 weeks times $11.25 per hour times 1.5.

21


2012 until July 31, 2013- a period of 48 workweeks- plaintiff was paid $12.50 per hour, and is

therefore entitled to $9,900 in liquidated damages for this period under the NYLL.

Pursuant to 29 U .S.C. § 216(b ), plaintiff is entitled to an award of liquidated damages of

$26,235.00, and an additional $31,478.91, under N.Y. Lab. Law§ 663(1). Accordingly, it is

respectfully recommended that plaintiff receive a total award of$57,713.91 in liquidated damages.

3. Rate of Pay Notification Under the NYLL

Plaintiff also seeks damages due to defendants' alleged failure to issue written notice of his

rate of pay, in violation of N.Y. Labor Law§§ 195 and 198. (See Compl. ~~56-59; Pl.'s Mem. at

1 0). Specifically, plaintiff claims he is entitled to $100 per week for each week that the defendants

failed to issue him a written notice of his rate of pay, with a maximum award set by statute of

$2,500.00. (Pl.'s Mem. at 10). Plaintiff claims that he was never issued a written notice ofhis rate of

pay and thus, he requests the maximum award of$2,500.00. (.lil_; Pl.'s Am. Dec!.~ 16).

Section 195(3) of the NYLL went into effect April 9, 2011, approximately 27 months prior to

the end of plaintiff's employment. The statute requires that every employer provide his or her

employees with "a statement with every payment of wages," listing various information including the

dates of work covered by the payment, information identifYing the employer and employee, details

regarding the rate of pay and the overtime rate of pay, and the number of hours worked. N.Y. Lab.

Law § 195(3). If such notice is not provided to the employee, "he or she shall recover in a civil action

damages of one hundred dollars for each work week that the violations occurred or continue to occur,

but not to exceed a total oftwenty-five hundred dollars." N.Y. Lab. Law§ 198(1-d).

Accepting plaintiff's allegations that he never received written notice required by Section

195(3) as true, the Court finds that plaintiff is entitled to recover damages for defendants' violation of

22


Section 195(3). See Jaramillo v. Banana King Rest. Corp., 2014 WL 2993450, at *6-7 (holding that

p1aintiffwas entitled to receive statutory maximum of$2,500.00 in damages in a default judgment

case because employer failed to provide the required notice for plaintiffs entire employment period

of61 weeks).

Plaintiff alleges that he was employed by defendants from approximately 1988 until July

2013. (Pl.'s Am. Decl. ~ 4). Section 195(1)(a) ofthe NYLL went into effect on April9, 2011, 120

weeks prior to the end of plaintiffs employment on July 31, 2013. Since the maximum number of

weeks for which plaintiff could receive an award under this statutory provision is 25, the Court

respectfully recommends that plaintiff be awarded the maximum award of $2,500, or $100 per week

for 25 weeks for defendants' violation ofN.Y. Labor Law§ 195(3). See N.Y. Lab. Law§ 198(1-d).

C. Attorney's Fees and Costs

Plaintiff seeks to recover an award of"reasonable attorney's fees and costs" (see PI's Mem. at

12-19), pursuant to the applicable provisions of the FLSA and the NYLL. See 29 U .S.C. § 216(b );

N.Y. Lab. Law§ 663(1). Cowis in this Circuit determine the "presumptively reasonable fee" by

multiplying the number of hours reasonably expended on litigation by an hourly rate that a

reasonable, paying client would be willing to pay. See Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.

2009); Jemine v. Dennis, 901 F. Supp. 2d at 391 (quoting Hensley v. Eckerhmi, 461 U.S. 424, 433

(1983)); Concrete Flotation Sys, Inc. v. Tadco Constr. Corp., No. 07 CV 319, 2010 WL 2539771, at

* 1 (E.D.N.Y. Mar. 15, 201 0). In order to reach this number, "courts look to the 'rates prevailing in

the community for similar services of lawyers ofreasonably comparable skill, experience, and

reputation."' Jemine v. Dennis, 901 F. Supp. 2d at 392 (quoting Cruz v. Local Union No.3 of

IBEW, 34 F.3d 1148, 1159 (2d Cir. 1994) (internal citations omitted)).

23


Although courts retain broad discretion in awarding fees, Peralta v. M&O Iron Works, Inc.,

No. 12 CV 3179, 2014 WL 988835, at* 13 (E.D.N.Y. March 12, 2014), the Second Circuit has

explained that the community to which the district court should look to determine the hourly rate is

the district in which the district court sits. Estrella v. P.R. Painting Corp., 596 F. Supp. 2d 723, 725

(E.D.N.Y.) (citing Arbor Hill Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190

(2d Cir. 2008)), aff'd, 356 Fed. App'x 495 (2d Cir. 2009)). Plaintiff bears the burden ofproving the

reasonableness of the requested fees, "preferably through contemporaneous time records that describe

with specificity the nature of the work done, the hours expended, and the dates." Gunawan v. Sake

Sushi Rest., 897 F. Supp. 2d 76, 94 (E.D.N.Y. 2012) (citing New York State Ass'n for Retarded

Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983)). Additionally, among the "critical

ingredients" in determining a reasonable hourly rate are the "nature of representation and type of

work involved in a case." Jemine v. Dennis, 901 F. Supp. 2d at 392 (quoting Arbor Hill Citizens

Neighborhood Ass'n v. County of Albany, 522 F.3d at 184). Courts in this Circuit are guided by: (I)

rates awarded in prior cases; (2) the Court's own knowledge of prevailing rates in the district; and (3)

evidence submitted by the parties. Santillan v. Henao, 822 F. Supp. 2d at 300 (citing Farbotko v.

Clinton County ofN.Y., 433 F.3d 204, 209 (2d Cir. 2005)).

In accordance with the requirements set out in New York State Association for Retarded

Children, Inc. v. Carey, 711 F.2d at 1147-48, plaintiff's counsel, Michael J. Borrelli, has provided a

detailed time record of the tasks performed in this case, along with corresponding fee rates based on

the employee who performed the tasks. (See Pl.'s 8/14/14 Ltr., Exs. E, F). Plaintiff's counsel claims

that his firm spent a total of 99.7 hours and expended $824.12 in costs associated with this matter for

a total of$16,649.12. (Pl.'s 8/14/14 Ltr., at 7; Ex. F). Mr. Borrelli asserts that in addition to himself,

three attorneys, Alexander Coleman, Dana Z. Stecker, and Todd Dickerson, worked on this matter,

24


along with one paralegal. (Pl.'s 8/14114 Ltr., Ex. F).

Mr. Borrelli explains that he is a founding and managing partner of the firm of Borrelli &

Associates, P.L.L.C. (the "Firm"), and that he has been practicing law since 2001, with almost 13

years experience focusing on labor and employment law litigation. (Borelli Decl. ~~ 34-40). He

asserts that he and the Firm have had extensive experience litigating cases in state and federal courts

in New York and New Jersey. (.hl,. ~~ 41-44). His standard billing rate is $500 per hour, but he is

only requesting $350 an hour for his time in this matter. (.hl,. ~~ 48-49).

Mr. Coleman is Senior Counsel to the Firm and has been practicing law at the Firm since

2010, having graduated from law school in 2008. (See id. ~~50, 54, 56). According to Mr. Borrelli,

Mr. Coleman's practice consists mainly of cases involving wage and hour or general employment

law. (.hl,. ~58). Although his normal billing rate is $400 per hour, the Firm is asking only for $275

per hour for Mr. Coleman's work in connection with this matter. (I d. ~~ 61-62).

Dana Stecker and Todd Dickerson, associates with the Firm, are being bi lied at $150 per

hour, even though their usual billing rates were $300 per hour. (Id. ~~ 64, 65-66, 67, 68-69). Ms.

Stecker no longer works for the Firm (id. ~ 64), and Mr. Dickerson, a 2013 law graduate, has only

been with the Firm since 2014. (Id. ~ 67).

1. Hourly Rates

According to materials submitted on behalf of plaintiff, Mr. Borrelli and Mr. Coleman

typically charge an hourly rate of $500 and $400 per hour, respectively. (Id. ~~ 48, 61 ). However, in

this case, the partner, Mr. Borrelli, seeks a reduced hourly rate of $350; Mr. Coleman, Senior

Counsel, seeks a reduced rate of $275 per hour; and the junior associates are being charged at the rate

of $150 per hour. (Borrelli Decl. ~~ 49, 62, 66, 69). In support of these hourly rates, counsel has

25


submitted declarations from Rick Ostrove, Kenneth Anand, Robert Valli, Jr., Matthew Blit, Andrew

Goodstadt, Paul McDonough, and James Vagnini, lawyers practicing in the Eastern and Southern

Districts ofNew York, all attesting to the reasonableness of the fees requested by the Firm in this

matter. (~, Exs. J-P).

Analysis of cases in the Eastern District of New York reveal that the requested hourly rates

for the attorneys are all within the reasonable range for attorneys of this experience in this district.

See, e.g., Gutman v. Klein, No. 03 CV 1570,2009 WL 3296072, at *2 (E.D.N.Y. Oct. 13, 2009)

(holding that rates of $300 to $400 per hour for partners and $200 to $300 per hour for senior

associates and $150 to $200 per hour for junior associates were reasonable); Jaurez v. Precision

Apparel, Inc., No. 12 CV 2349,2013 WL 5210142, at *14 (E.D.N.Y., Sept. 13, 2013) (collecting

FLSA cases where partners received fees of $200 to $350 and associates received fi·om $100 to $295

per hour); Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d at 94-95 (reducing the hourly rate of a

partner with 5 years experience in the relevant practice area from $350 to $275 and reducing the

hourly rate of an associate with 3 years of experience in the relevant practice area from $300 to

$225); Penberg v. HealthBridge Mgmt., No. 08 CV 1534,2011 WL 1100103 at *6 (E.D.N.Y. March

22, 2011) (observing that "reasonable fees in this district vary from $200 to $375 for partners and

$100 to $295 for associates"); Estrella v. P.R. Painting Corp., 596 F. Supp. 2d at 725-26 (finding that

an hourly rate of $250 for an attorney with approximately 12 years of experience in labor and

employment law was an appropriate award for his work in an FLSA case); Cho v. Koam Med. Servs.

P.C., 524 F. Supp. 2d 202, 207 (E.D.N.Y. 2007) (collecting cases showing that hourly rates for

attorneys in Eastern District ofNew York cases ranged from $200 to $350 for partners, $200 to $250

for senior associates, and $100 to $150 for junior associates).

In light of the nature of the case and the rates awarded in prior cases from this district, this

26


Couti recommends that fees be calculated based on a rate of$350 per hour for Mr. Borrelli, $275 per

hour for Mr. Coleman, and $150 per hour for Ms. Stecker and Mr. Dickerson.

Plaintiff also requests payment at an hourly rate of $75 per hour for work completed by a

paralegal in the firm. (Borrelli Decl. ~~ 18, 72). The Court finds this rate is appropriate and well

within the typical scope of hourly rates for paralegal assistants in this district. See Cho v. Koam

Med. Servs. P.C., 524 F. Supp. 2d at 207 (explaining that recent Eastern District ofNew York cases

have approved hourly rates of$70 to $80 for legal assistants); King v. STL Consulting, LLC, No. 05

CV 2719, 2006 WL 3335115, at *8 (E.D.N.Y. Oct. 3, 2006) (recommending an hourly rate of $70 for

paralegal work); Trustees of Local 531 Pension Plan v. Corner Distribs., Inc., No. 07 CV 529, 2008

WL 2687085, at *9 (E.D.N.Y July 8, 2008) (collecting cases showing that $50 to $80 is the typical

hourly rate range in the Second Circuit for paralegal work in ERISA cases). Therefore, this Court

recommends approval of the hourly rate of $75 for the paralegal work on this case.

2. Hours Expended

Counsel for plaintiff represents that 99.7 hours were spent working on this case. (Pl.'s Ltr.

8/14/14 at 7). To determine the reasonableness of an attorney's fees request, the Court must make "a

conscientious and detailed inquiry into the validity ofthe representations that a certain number of

hours were usefully and reasonably expended." Maldonado v. La Nueva Rampa, Inc., No. 10 CV

8195,2012 WL 1669341, at *13 (S.D.N.Y. May 14, 2012) (quoting Lunday v. City of Albany, 42

F.3d 131, 134 (2d Cir. 1994)). The "critical inquiry is 'whether, at the time the work was performed,

a reasonable attorney would have engaged in similar time expenditures."' Id. (quoting Grant v.

Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In this Circuit, judges are required to "use their

experience with the case, as well as their experience with the practice of law, to assess the

27


reasonableness ofthe hours spent ... in a given case." Cho v. Koam Med. Servs. P.C., 524 F. Supp.

2d at 208 (quoting Fox Indus., Inc. v. Gurovich, No. 03 CV 5166, 2005 WL 2305002, at *2

(E.D.N.Y. Sept. 21, 2005)).

As a preliminary matter, this Court finds that counsel's submission oftime records

sufficiently meets the Second Circuit's requirements, according to which "all applications for

attorney's fees [must] be supported by contemporaneous records." Alejo v. Darna Rest., No. 09 CV

5436,2010 WL 5249383, at *6 (S.D.N.Y. Dec. 17, 2010); New York State Ass'n for Retarded

Children, Inc. v. Carey, 711 F.2d at 1148 (holding that applications must list the "attorney, the date,

the hours expended, and the nature ofthe work done").

After examining the time records submitted by plaintiffs counsel, the Court finds the

99.7 hours expended on this case to be unreasonably high. Generally, the "high-end amount of hours

spent on eases [sic] in a similar procedural posture (i.e. a motion for default judgment immediately

following the filing of a complaint) is no more than 55 hours total." Maldonado v. La Nueva Rampa,

Inc., 2012 WL 1669341, at * 14 (collecting cases from the Second Circuit in which courts approved

the number of hours spent on default judgment cases in similar "wage-and-hour cases" as requested if

less than 55, and reduced the number of hours, if greater).

Plaintiff initially sought remuneration for 80.4 hours worth of work in this case in his motion

for default judgment. (Pl.'s Mem. at 17). However, plaintiffs counsel seeks compensation for an

additional 19.3 hours that were spent amending plaintiffs Declaration and updating the inquest

papers after the Court notified counsel of certain discrepancies in the dates and hourly rates plaintiff

claimed he worked. Plaintiffs counsel subsequently explained that the discrepancy was due to

counsel's own error. (See Pl.'s 8/14/14 Ltr. at 2-3 (explaining that counsel had "learned there was an

error in Plaintiffs claimed hourly rate of pay during the relevant time period, likely due to a

28


misunderstanding in the translation of Plaintiffs original Declaration")). As such, the Court finds

that because plaintiffs counsel concedes that the error was their own, the Firm is not entitled to

recover fees for the 19.3 hours of work expended to correct this error.

The Court also finds the remaining 80.4 hours billed to be excessive. For example, the billing

records show that plaintiffs counsel billed approximately 52.3 hours just in preparing and filing the

motion for damages. Given that the "high end" of awards in these types of cases is around 55 hours,

the Court finds 52.3 hours to have been an unreasonable amount of time for which to bill just fot'

preparing the damages motion, particularly in light ofthe fact that the Court discovered a number of

discrepancies in the plaintiffs papers that required correction before an accurate award could be

determined. In addition, Mr. Dickerson billed 4.2 hours conducting clerical tasks such as gathering

and preparing exhibits, and drafting tables of contents and authorities. (Id., Ex. E). These

administrative tasks need not have been completed by an attorney.

3. Calculation of Attorney's Fees

Where the court determines that the hours requested in a fee award are "excessive, redundant,

or otherwise unnecessary," it is permitted to "simply deduct a reasonable percentage of the number of

hours claimed as a practical means of trimming fat from a fee application." Kirsch v. Fleet Street,

Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal quotations omitted); see also Jemine v. Dennis, 90 I

F. Supp. 2d 365,393 (E.D.N.Y. 2012) (reducing number ofhours claimed by 10% where the Court

found the number of hours sought to be excessive); Cuevas v. Ruby Enterprises ofNew York, 10 CV

5257,2013 WL 3057715 at *3 (E.D.N.Y. June 17, 2013) (reducing partner hours spent in FLSA case

by 10%); Castellanos v. Deli Casagrande Corp., 11 CV 245,2013 WL 1207058, at *11 (E.D.N.Y.

March 7, 2013) (reducing the total hours worked by all attorneys and paralegals by 1 0%). In this

29


case, since the 80.4 hours spent by plaintiffs counsel on this case exceeds the amount oftime that

reasonably should have been spent, the Court recommends that the hours be reduced by 10% across

the board for all of the staff that worked on this case. As such, the Court recommends that the

$12,715.00 initially sought by plaintiffs for the 80.4 hours worked (Pl.'s Mem. at 18) be reduced by

10% and that plaintiff be awarded $11,433.50 in fees.

4. Costs

Plaintiffs counsel also requests $824.12 in litigation costs expended during the course ofthis

litigation. (Pl.'s Ltr. 8/14114 at 7). Provisions of both the FLSA and the NYLL provide that

plaintiffs may recover"reasonable" costs. See 29 U.S.C. § 216(b); N.Y. Lab. Law§ 663(1). In this

Circuit, only costs that are tied to "identifiable, out~of~pocket disbursements" are recoverable. Jemine

v. Dennis, 901 F. Supp. 2d at 394 (quoting Moon v. Kwon, No. 99 CV 11810,2002 WL 31512816,

at *8 (S.D.N.Y. Nov. 8, 2002)). Here, the requested costs include this Court's filing fee, as well as

fees for service of process, fees and disbursements for printing and witnesses, fees for copies used in

the case, postage, legal research, "defendant research," 13 and interpreters under 28 U.S.C. §§ 1828,

1920. (See Borrelli Dec!., Exs. G, H; Pl.'s Mem. at 18~ 19). This Court generally approves requests

that are reasonable and well~documented. See, e.g., Kalloo v. Unlimited Mech. Co. ofNY, Inc., 977

F. Supp. 2d 209,214 (E.D.N.Y. 2013) (approving request for $9,276.36 in costs for filing fees, fees

for service of process, and the costs of transcripts of depositions, since these costs were "supported

13ln his bill of costs, plaintiff lists $225 of "defendant research." (Pl.'s 8/14/14 Ltr., Ex. G). Ex. H of the letter lists an item paid to FJB Consulting for "Background of Clarimar and Skp Trace of Fernandez." Given the fact that defendants left no forwarding address, plaintiff was justified in these expenditures in attempting to locate the defendants for service purposes. (See Pl.'s Letter, dated July 14, 2014, at 1-2, Ex. D).

30


by ... contemporaneous records"); Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d at 211-12

(reducing a request for cost of electronic research, but finding that "taxable costs, such as filing and

subpoena fees as well as monies expended by transcripts, printing, copying, and witnesses are shifted

to the losing party"). In the Second Circuit, costs for "electronic research" are "compensable as

attorneys' fees and may be awarded but only where the charges are not already accounted for in the

attorneys' hourly rates." Id. at 212 (citing Arbor Hill Concernec Citizens Neighborhood Ass'n v.

County of Albany, 369 F.3d 91, 97-8 (2d Cir. 2004)). Further, where these costs are sought

separately from the fees, the Court may assume that they are not included in the hourly rate. The

Court thus finds these fees reasonable, and awards them to plaintiff.

However, $366.59 ofthe costs plaintiff claims were incurred filing the letter of August 14,

which fixed defects in plaintiffs papers, which plaintiff admits were due to clerical errors on

plaintiffs counsel's pati. The Court finds these costs to be unreasonable, and declines to award

them.

As such, the CoUJi respectfully recommends that plaintiff be awarded $475.15 in costs.

D. Pre and Post-Judgment Interest

Finally, plaintiff also seeks prejudgment interest on the state law claim and post-judgment

interest, pursuant to 28 U.S.C. § 1961.

1) Prejudgment Interest

A plaintiff is "entitled to an award ofprejudgment interest under [New York] State law for

that potiion of unpaid wages for which [he is] being compensated under state law." Jin M Cao v. Wu

Liang Ye Lexington Rest., Inc., No. 08 CV 3725, 2009 U.S. Dist. LEXIS 74901,2009 WL 2601995

31


at *9 (S.D.N.Y. Sept. 30, 2010) (citing N.Y. C.P.L.R. § 5001). See also Callier v. Superior Bldg.

Servs., No. 09 CV 4590,2010 WL 5625906,*4 (E.D.N.Y. Dec. 22, 2010). Under New York law,

prejudgment interest is calculated at a rate of9% per annum. See N.Y.C.P.L.R. § 5001; Smith v.

Nagai, No. 10 CV 8237,2012 WL 2421740, at* 4 (S.D.N.Y. May 15, 2012). However, this Court

has previously held that:

[s]ince liquidated damages awarded under the FLSA for unpaid overtime is designed to compensate employees for delay in payment, such damages are the functional equivalent of prejudgment interest on the overtime pay. Plaintiff is therefore entitled to an award of prejudgment interest only on unpaid wages and spread of hours pay for which liquidated damages pursuant to the FLSA were not assessed.

Santillan v. Henao, 822 F. Supp. 2d 284,298 (E.D.N.Y. 2011); see also Janus v. Regalis Constr.,

Inc., 2012 WL 3878113, at *8-9 (explaining that, where plaintiff is entitled to compensation for

unpaid overtime wages under FLSA and the NYLL, "the plaintiff should recover prejudgment interest

calculated at a rate of nine percent per annum on his unpaid wages under the NYLL" but "should not

recover state prejudgment interest on the unpaid wages underpinning his FLSA recovery").

Thus, in this case, since it has been recommended that plaintiff receive an award of liquidated

damages under both the FLSA and the NYLL, this Court respectfully recommends that plaintiff only

receive an award of prejudgment interest on the amount owed in unpaid wages and overtime

damages 14 for the period included in NYLL's statute oflimitations, but not for the period covered by

the FLSA, from December 20, 2007 until December 20, 2010.

Using the prescribed interest rate of9% per annum, the Court recommends that since

"damages were incurred at various times, interest shall be computed ... from a single reasonable

intermediate date .... " N.Y.C.P.L.R. § 500l(b); see Marfia v. T. C. Ziraat Bankasi, 147 F.3d 83, 90

14Plaintiff did not seek compensation for unpaid spread of hours pay in this case.

32


(2d Cir. 1988) (holding that New York law "leaves to the discretion of the court the choice of

whether to calculate prejudgment interest based upon the date when damages were incurred or 'a

single reasonable intermediate date,' which can be used to simplify the calculation"). Indeed, a

review of case law in this Circuit reveals that the midpoint is commonly used. Callier v. Superior

Bldg. Servs., 2010 WL 5625906, at *13 (citing cases). Where, as here, the plaintiff is entitled to

receive prejudgment interest for overtime wages only for the period covered by the NYLL statute of

limitations, but not by the FLSA statute of limitations, the "most practical approach" is to compute

prejudgment interest "from a point halfway between the plaintiffs first and last paydays outside the

FLSA's statute of limitations." Janus v. Regalis Constr., Inc., 2012 WL 3878113, at *9. Given that

the NYLL limitations period commenced on December 20, 2007, 15 and plaintiff cannot receive

interest for damages incurred after December 20, 2010 (the beginning of the FLSA limitations

period), the Court respectfully recommends that plaintiffs interest be calculated from June 20, 2009,

the midpoint between those two dates.

Since plaintiffs unpaid wages during the period December 20, 2007 until December 20,

2010, was $28,957.50, 16 applying an annual interest rate of9% to that amount, beginning on the

intermediate date of June 20, 2009, to the date of this Report and Recommendation, the Court

15Plaintiff argues that the appropriate midpoint is March 1, 2009, "the midpoint of ... plaintiffs tenure as an employee of a defendant," and he asserts that "Plaintiff began working for Defendants in or around October 1, 2004." (Pl.'s Ltr. 8/14114 at 6 n.5). However, plaintiffs Amended Declaration contradicts this representation, stating that he began working for defendants "in or around 1988." (Am. Decl. ~ 4). The Court need not resolve this discrepancy, since the relevant starting date for determining the intermediate date in the accrual of damages is the beginning ofthe NYLL limitations period, not the beginning of plaintiffs employment.

16This figure was calculated by multiplying 156 (the number of workweeks in the relevant period) x 11 (the number of ovetiime hours per week) x 16.875 (plaintiffs overtime rate ofpay).

33


respectfully recommends that plaintiff be awarded $14,881.26 17 in prejudgment interest.

2) Post-Judgment Interest

Section 1961 of Title 28 provides that "[i]nterest shall be allowed on any money judgment in

a civil case recovered in a district court." Under the statute, interest is calculated from the date of the

entry of the judgment, at the weekly average 1-year constant maturity Treasury yield rate published by

the Board of Governors of the Federal Reserve System for the preceding calendar week. IQ_,_; see also

Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir 2008) (noting that "post-judgment interest is

governed by federal statute"). Thus, the Court recommends that the plaintiff be awarded post-

judgment interest.

CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends that plaintiffs motion be

granted, and that plaintiff be awarded a total of $142,196.32, consisting of: $55,192.50 in unpaid

overtime wages; $57,713.91 in liquidated damages; $2,500 for failure to provide statements required

under the New York law; $11,433.50 in attorney's fees, $475.15 in costs., and $14,881.26 in

prejudgment interest. The undersigned further respectfully recommends that plaintiffs motion to

voluntarily dismiss the John Doe defendant from the action be granted.

Any objections to this Report and Recommendation must be filed with the Clerk of the Court,

with a copy to the undersigned, within fourteen (14) days of receipt ofthis Report. Failure to file

17This figure was arrived at by multiplying $28,957.50 (the amount of unpaid wages during the relevant period) by .09 (the annual interest rate) by 5.71 (the amount oftime between the intermediate date and March 5, 2015, the date this Report and Recommendation was issued).

34


objections within the specified time waives the right to appeal the District Court's order. See 28

U.S.C. § 636(b)(l); Fed. R. Civ. P. 6(a), 6(e), 72(b); Small v. Secretary of Health & Human Servs.,

892 F.2d 15, 16 (2d Cir. 1989). The Clerk is directed to send copies of this Report and

Recommendation to the parties either electronically through the Electronic Case Filing (ECF) system

or by mail.

SO ORDERED.

Dated: Brooklyn, New York March 5, 2015

35

Is/ CHERYL L. POLLAK

Cheryl L. Pollak United States Magistrate Judge Eastern District ofNew York


united states district court eastern district of new … · pedro dominguez, plaintiff, -against-b...

Documents