Opinion
21-CV-8459 (PAE) (OTW)
03-14-2024
BUENA VENTURA CASIANO and GREGORIO CANDIA MENDOZA, individually and on behalf of others similarly situated, Plaintiffs, v. 67 DELI CORP. (D/B/A 67 DELI CORP.) et al., Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL A. ENGELMAYER
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiffs Buena Ventura Casiano (“Casiano”) and Gregorio Candia Mendoza (“Mendoza”) (“Plaintiffs”) brought this action against Defendants 67 Deli Corp., Abdulla Ali Musaid, and Abdulrahman Jamil Mosed (“Defendants”) pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the New York Labor Law (NYLL), N.Y. Lab. Law § 650 et seq., for, inter alia, failure to pay minimum and overtime wages, failure to pay spread of hours pay, wage notice violations, liquidated damages, interest, and attorneys' fees and costs. (ECF 1). After Defendants failed to respond to the complaint, Judge Engelmayer granted a default judgment and referred this matter to me for an inquest into damages. (ECF Nos. 48 and 49).
II. BACKGROUND
A. Factual Background
The following facts, drawn from Plaintiffs' First Amended Complaint (ECF 12) (hereinafter “Compl.”), are deemed established for the purposes of determining Defendants' liability and the damages to which Plaintiff is entitled. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (internal citation omitted); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor[.]”) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
1. Plaintiff Buena Ventura Casiano
Defendants employed Plaintiff Casiano as a cashier and deli worker from approximately January 2020 to June 26, 2021. Compl. ¶ 33-34. Plaintiff Casiano alleges that throughout his term of employment, he worked over 40 hours a week without proper compensation. Id. ¶ 65. Specifically, he alleges that he typically worked 66 hours per week from approximately January 2020 to March 2020, and 63 hours per week from approximately April 2020 to June 26, 2021. Id. ¶¶ 38-39. Plaintiff Casiano alleges that he was paid $15.00 per hour throughout his employment with Defendants. Id. ¶ 41. He further alleges that he was never provided proper wage notices in either English or Spanish (his primary language). Id. ¶ 47. Finally, Plaintiff Casiano alleges that Defendants required him to purchase “tools of the trade,” specifically, two pairs of non-slip shoes and twelve chef jackets. Id. ¶ 48. Plaintiff Casiano now brings claims asserting violations of minimum wage laws, unpaid overtime, notice violations, and recovery of equipment costs.
Plaintiff Casiano also alleges that he worked from approximately August 2021 to September 12, 2021 (ECF 55 ¶ 15), and for one and a half weeks in June 2021 (ECF 55 ¶ 22), but does not include these timeframes in his damages calculation (ECF 55-8). Thus, the Court assumes Plaintiff Casiano is not claiming damages for these time periods.
2. Plaintiff Gregorio Candia Mendoza
Defendants employed Plaintiff Mendoza as a stocker and general assistant from approximately May 2020 to April 2021. Id. ¶¶ 49-50. Plaintiff Mendoza alleges that throughout his term of employment, he worked over 40 hours a week without proper compensation. Id. ¶ 65. Specifically, he typically worked 73 hours per week from approximately May 2020 to April 2021. Id. ¶ 54. Plaintiff Mendoza alleges that he was paid $10.00 per hour throughout his employment with Defendants. Id. ¶ 56. He further alleges that he was never provided proper wage notices in either English or Spanish (his primary language). Id. ¶ 63. Finally, he alleges Defendants required him to purchase “tools of the trade,” specifically two pairs of non-slip shoes and six shirts. Id. ¶ 64. Plaintiff Mendoza now brings claims asserting violations of minimum wage laws, unpaid overtime, notice violations, and recovery of equipment costs.
B. Procedural History
Plaintiffs filed their complaint on October 12, 2021 (ECF 1), and their First Amended Complaint on January 11, 2022. (ECF 12). After Defendants failed to respond to the complaint, Plaintiffs sought and received a Clerk's Certificate of Default for all Defendants. (ECF Nos. 3335). On November 2, 2022, Judge Engelmayer issued an order to show cause why a default judgment should not be entered against Defendants. (ECF 43). Following Defendants' failure to respond to that order to show cause, on March 24, 2023, Judge Engelmayer directed that a default judgment be entered against Defendants (ECF 48), and referred the matter to me for an inquest on damages. (ECF 49).
I ordered Plaintiffs to file their proposed findings of fact and conclusions of law by April 28, 2023, and directed Defendants to file their opposition, if any, by May 19, 2023. (ECF 50). After the Court granted one courtesy extension (ECF 54), Plaintiffs filed their proposed findings of fact and conclusions of law on May 4, 2023. (ECF 55). To date, Defendants have failed to respond.
III. DISCUSSION
A. Legal Standard for an Inquest into Damages
Where default has been entered against a defendant, courts are to accept as true all of the well-pleaded facts alleged in the complaint, except those concerning the amount of damages. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 108 (2d Cir. 1997) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). Because a defaulting party does not concede mere legal conclusions, the Court must still determine “whether the unchallenged facts constitute a legitimate cause of action.” In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000). Where a plaintiff's well-pleaded facts are sufficient to state a claim on which relief can be granted, the only remaining issue is if the plaintiff provided adequate support for his requested relief. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). Plaintiff must supply an evidentiary basis for the specific damages amount sought. See Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 292 (S.D.N.Y. 2016).
An inquest into damages may be conducted without an evidentiary hearing. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993) (“[A] hearing is not required where a sufficient basis on which to make a calculation exists.”); Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012). Here, no hearing was requested or held, as the damages awarded can be ascertained “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc., 183 F.3d at 155.
B. Jurisdiction
This Court has proper subject-matter jurisdiction over the case because Plaintiffs have asserted substantive claims under a federal law, the FLSA. See 28 U.S.C. § 1331. The Court can exercise supplemental jurisdiction over Plaintiffs' state law claim. See 28 U.S.C. § 1367.
Although Plaintiffs received a default, Plaintiffs must still show proper service such that the Court can exercise personal jurisdiction over Defendants. See Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *4 (E.D.N.Y. Sept. 22, 2017) (“Personal jurisdiction is a necessary prerequisite to entry of a default judgment.”). Under Federal Rule of Civil Procedure 4(e)(1), service of an individual can be affected by “following state law for serving a summons . . . where the district court is located,” here New York. FED. R. CIV. P. 4(e)(1). New York law permits service of an individual defendant by both delivering the summons and the complaint to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person served” and mailing the summons to the last known residence or place of business. N.Y. C.P.L.R. § 308(2). Likewise, under New York law, service on a corporate defendant can be effected by service on the New York Secretary of State. N.Y. C.P.L.R. § 311(a)(1); N.Y. Bus. Corp. Law § 306(b)(1).
Here, Plaintiffs submitted affidavits of service stating that Defendants Abdulla Ali Musaid and Abdulrahman Jamil Mosed were served by delivering each a summons to Abdul Alami, managing agent at 67 Deli Corp., Defendants' place of business. (ECF Nos. 24-25). Plaintiffs also submitted an affidavit of service stating that Defendant 67 Deli Corp. was served via service on the New York Secretary of State. (ECF 23).
C. Damages
1. FLSA Liability
The FLSA applies to employees who “were employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce.” Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 120 (E.D.N.Y. 2011). An enterprise is engaged in interstate commerce when its employees handle or sell goods that have moved in interstate commerce, and when its annual gross sales exceeds $500,000. 29 U.S.C. §§ 203(s)(1)(A)(i)-(ii). Plaintiffs have sufficiently alleged that Defendants fit within the FLSA's definition of an “employer” engaged in interstate commerce. Compl. ¶ 29.
Whether one can be considered an employer depends on the degree of “formal control” or “functional control” over the employee. Barfield v. N.Y.C. Health and Hosp. Corp., 537 F.3d 132, 143 (2d Cir. 2008). Formal control includes the power to “hire and fire the employees,” to set work schedules, to determine the “rate and method of payment,” and to “maintain[] employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). Plaintiffs allege that Defendants had the power to fire and hire Plaintiffs, controlled Plaintiffs' terms of employment, and determined Plaintiffs' rate of pay. Compl. ¶ 28. Accordingly, Plaintiffs have sufficiently alleged that Defendants are liable under the FLSA.
2. Statute of Limitations
FLSA actions carry a two-year statute of limitations that may be extended to three years for “willful violation[s].” 29 U.S.C. § 255(a). To show willfulness, Plaintiffs bear the burden of showing that the employer “knew or showed reckless disregard” of the violation. Parada v. Banco Indus. de Venez., C.A., 753 F.3d 62, 71 (2d Cir. 2014) (quoting Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995)). The NYLL, by contrast, has a six-year statute of limitations. N.Y. Lab. Law § 663(3). Because Plaintiffs filed their complaint on October 12, 2021 (ECF 1) and seek to recover for conduct that began in January 2020, see Compl. ¶¶ 33, 49, their claims fall within both the FLSA's two-year statute of limitations and the NYLL's six-year statute of limitations.
3. Minimum Wage Damages
Both the FLSA and NYLL require that employers pay their employees a minimum wage for each hour worked. See 29 U.S.C. § 206(a); N.Y. Lab. Law § 652-1. Because a double recovery of unpaid wages under both the FLSA and NYLL is not permitted, the Court can exercise its discretion to elect the statute that “provid[es] the greatest amount of relief.” Hengjin Sun v. China 1221, Inc., No. 12-CV-7135 (RJS), 2016 WL 1587242, at *2 (S.D.N.Y. Apr. 19, 2016). Plaintiffs allege that they were paid at an hourly rate below the minimum wage set by the FLSA and NYLL. See Compl. ¶ 87. Under the FLSA, employees must be paid at least $7.25 per hour, 29 U.S.C. § 206(a)(1)(C), and under the NYLL, employees must be paid at least $15.00 per hour. N.Y. Lab. Law § 652-1. Because the NYLL had a higher minimum wage at the time of the violation, I recommend a calculation of unpaid wage damages under the NYLL.
Plaintiff Casiano alleges that he was paid $15.00 per hour throughout his employment with Defendants. See Compl. ¶ 41; ECF 55-6 at 2, Declaration of Buena Ventura Casiano (“Casiano Decl.”). Plaintiff Mendoza alleges that he was paid $10.00 per hour throughout his employment with Defendants. See Compl. ¶ 56; ECF 55-7 at 2, Declaration of Gregorio Candia Mendoza (“Mendoza Decl.”). Because Plaintiff Casiano was paid at minimum wage ($15.00/hour) during each pay period, he has not properly alleged a minimum wage claim. However, because Plaintiff Mendoza was paid below minimum wage during each pay period ($10.00/hour), he has properly alleged a minimum wage claim. Plaintiff Mendoza alleges that he worked approximately 73 hours a week from May 2020 to April 2021. Mendoza Decl. ¶ 12. Plaintiff Mendoza calculates his minimum wage damages based upon an assumption that he started on May 1, 2020 and ended on April 30, 2021. (ECF 55-8 at 1). Where there are no records supporting factual allegations, the Court may rely on Plaintiff's “recollections alone” when the Defendant defaults. See Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 335 (S.D.N.Y. 2005). Applying the above minimum wage rate of $15.00 per hour for the 52 weeks of Plaintiff Mendoza's employment, Plaintiff Mendoza is owed $10,400 ([$15.00-$10.00] ¶ 40 hours/week x 52 weeks) in unpaid minimum wages.
4. Overtime Damages
Under both the FLSA and NYLL, employers must pay their employees one and one-half times their regular hourly rate for any work performed in excess of a forty-hour work week. 29 U.S.C. § 207(a)(2); N.Y.C.C. § 146-1.4. Because Plaintiff Mendoza's regular hourly rate was below the minimum wage, the appropriate overtime rate would be one and one-half times the minimum wage rate. See Sanchez v. Jyp Foods Inc., No. 16-CV-4472 (JLC), 2018 WL 4502008, at *7 (S.D.N.Y. Sept. 20, 2018). As discussed above, the minimum wage under the NYLL for the relevant period was $15.00, meaning that the overtime hourly rate for both Plaintiffs is $22.50 ($15.00 x 1.5).
i. Plaintiff Casiano
Plaintiff Casiano seeks overtime damages for hours worked in excess of a forty-hour work week from January 2020 until March 2020 and from April 2020 until June 26, 2021. Compl. ¶¶ 38, 39. Specifically, Plaintiff Casiano alleges that he worked 66 hours per week from January 2020 until March 2020 (26 hours in excess of a 40-hour work week) and 63 hours per week from April 2020 until June 26, 2021 (23 hours in excess of a 40-hour work week). Id. In the damages chart provided to the Court (ECF 55-8), Plaintiff Casiano erroneously input the end date for the first time period as March 31, 2022, instead of March 31, 2020. Due to this typo, Plaintiff Casiano erroneously calculated his overtime damages for a total of 117 weeks. The correct number of weeks between January 2020 and March 2020 is 12 weeks. Applying the overtime hourly rate of $22.50 to the 12 weeks for which he worked 26 hours of overtime, Defendants were required to pay Plaintiff Casiano $7,020 ($22.50 x 26 hours x 12 weeks) for overtime wages from January 1, 2020 to March 31, 2020. However, Plaintiff Casiano only received $4,680 ($15.00 x 26 hours x 12 weeks) from January 1, 2020 to March 31, 2020.Plaintiff Casiano was therefore underpaid by $2,340 in overtime wages from January to March 2020.
$585 per week in overtime wages from January 2020 to March 2020.
Plaintiff Casiano received only $390 per week for his overtime hours from January 2020 to March 2020.
From April 1, 2020 to June 26, 2021, Plaintiff Casiano correctly applies the overtime rate ($15.00 x 1.5) to the 64 weeks he worked. Applying the overtime hourly rate of $22.50 to the 64 weeks for which he worked 23 hours of overtime, Defendants were required to pay Plaintiff Casiano $33,120 ($22.50 x 23 hours x 64 weeks) for overtime wages from April 1, 2020 to June 26, 2021. However, Plaintiff Casiano only received $22,080 ($15.00 x 23 hours x 64 weeks) from April 1, 2020 to June 26, 2021.Plaintiff Casiano was therefore underpaid by $11,040 in overtime wages from April 2020 to June 26, 2021. Thus, Plaintiff Casiano is entitled to a total of $13,380 ($2,340 + $11,040) in overtime wages from January 2020 to June, 26, 2021.
$517.50 per week in overtime wages from April 2020 to June 26, 2021.
Plaintiff Casiano received only $345 per week for his overtime hours from April 2020 to June 26, 2021.
i. Plaintiff Mendoza
Plaintiff Mendoza seeks overtime damages for hours worked in excess of a forty-hour work week from May 2020 until April 2021. Compl. ¶ 49. Specifically, Plaintiff Mendoza alleges that he worked 73 hours per week during this time period (33 hours in excess of a 40-hour work week). Id. ¶ 54. Plaintiff Mendoza correctly applies the overtime rate ($15.00 x 1.5) to the 52 weeks he worked. Applying the overtime hourly rate of $22.50, Defendants were required to pay Plaintiff Mendoza $38,610 ($22.50 x 33 hours x 52 weeks). However, Plaintiff Mendoza only received $17,160 ($10.00 x 33 hours x 52 weeks).Plaintiff Mendoza was therefore underpaid by $21,450 in overtime wages from May 2020 until April 2021.
Although the Proposed Findings of Fact and Conclusions of Law state that Plaintiff Mendoza worked from January 2020 to June 26, 2021 (ECF 55 ¶ 29), the Court assumes this was another typo because all other references to Plaintiff Mendoza's employment dates state that he worked from May 2020 to April 2021.
$742.50 per week in overtime wages from May 2020 until April 2021.
Plaintiff Mendoza received $330 per week for his overtime hours from May 2020 until April 2021.
5. Spread of Hours Damages
The “spread of hours” is the length of the interval between the beginning and end of an employee's workday. 12 N.Y.C.R.R. § 146-1.6. Under “spread of hours” law, a plaintiff may receive one additional hour of pay at the basic minimum hourly rate for each day the spread of hours exceeds ten hours. 12 N.Y.C.R.R. § 146-1.6(a); 12 N.Y.C.R.R. § 142-2.4.; see Angamarca v. Pita Grill 7 Inc., No. 11-CV-7777 (JGK) (JLC), 2012 WL 35778782, at *6 (S.D.N.Y. Aug. 2, 2012).
Here, only Plaintiff Mendoza seeks spread of hours pay. From May 2020 to April 2021, Plaintiff Mendoza worked from approximately 9:00 a.m. to 7:00 p.m. (10 hours) 4 days per week and from approximately 9:00 a.m. to 8:00 p.m. (11 hours) 3 days a week. Compl. ¶ 54. Plaintiff Mendoza is therefore entitled to recover for spread of hours pays when he worked 11 hours per day (from 9:00 a.m. to 8:00 p.m.) 3 days per week. Plaintiff Mendoza erroneously calculates his spread of hours pay as if he is entitled to spread of hours pay for 7 days per week. (ECF 55 at 13). However, Plaintiff Mendoza did not exceed ten hours of work per day during four of the seven days per week. Applying an additional hour per day at the minimum wage rate for three days per week, Plaintiff Mendoza is entitled to $2,340 (15.00 x 3 days per week worked over 10 hours x 52 weeks) in spread of hours pay.
6. Liquidated Damages
NYLL entitles an employee to liquidated damages “equal to [100%] of the total of such underpayments found to be due . . . unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.” N.Y. Lab. Law §§ 198(l-a), 663(1); 29 U.S.C. §§ 216(b), 260. “[D]efaulting defendants . . . obviously [have] made no showing of good faith.” Schalaudek v. Chateau 20th St. LLC, No. 16-CV-11 (WHP) (JLC), 2017 WL 729544, at *10 (S.D.N.Y. Feb. 24, 2017) (quoting Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016)). Liquidated damages under the NYLL also include 100% of any spread of hours damages to which Plaintiffs are entitled. N.Y. Lab. Law § 198; see Padilla v. Manlapaz, 643 F.Supp.2d 302 (E.D.N.Y. 2009); see also Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327 (S.D.N.Y. 2005).
Because Defendants defaulted, Plaintiff Casiano is entitled to liquidated damages for all of his unpaid overtime wages. Accordingly, he is entitled to an additional $13,380 in liquidated damages for the overtime violations, resulting in a total of $26,760 ($13,380 unpaid overtime + $13,380 liquidated damages). Similarly, Plaintiff Mendoza is entitled to liquidated damages for his underpayment of wages, unpaid overtime wages, and unpaid spread of hours pay. Accordingly, he is entitled to an additional $34,190 ($10,400 underpaid wages + $21,450 unpaid overtime + 2,340 unpaid spread of hours pay) in liquidated damages for the underpaid wages and overtime violations, resulting in a total of $68,380 ($34,190 underpaid wages and unpaid overtime and unpaid spread of hours pay + $34,190 liquidated damages).
7. Wage Notice and Statement Damages
NYLL requires that employers provide their employees with wage notices in English and the employee's primary language that include, inter alia, the rate of pay, the basis of calculating the pay, the regularly scheduled pay day, and the employer's name and physical address. N.Y. Lab. Law § 195(1)(a). The NYLL also requires that employers accompany every payment of wages with a wage statement that includes, inter alia, the dates worked that are covered by that payment, the rate of pay, the basis of calculating the pay, and the employer's name and physical address. N.Y. Lab. Law § 195(3). Failure to provide a proper wage statement under § 195(1)(a) or wage notice under § 195(3) entitles an employee to recover $50 in damages for each workday that the violation occurs, “but not to exceed a total of five thousand dollars.” N.Y. Lab. Law §§ 198 (1-b), (1-d).
Plaintiffs allege that Defendants never provided a wage notice under § 195(1) or an accurate wage statement under § 195(3) throughout their employment. Compl. ¶¶ 46-47, 6263. Because Plaintiff Casiano's employment from January 2020 to June 26, 2021, and Plaintiff Mendoza's employment from May 2020 to April 2021, would result in damages over the $5,000 maximum, I recommend that Plaintiffs be awarded the maximum of $5,000 each for both the wage statement and wage notice violations for a total of $10,000 each.
8. Equipment Costs
New York and federal law require employers to compensate employees for the purchase and maintenance of required uniforms if the employees' expenditures for these purposes would reduce their wages to below minimum wage. Cocoletzi v. Fat Sal's Pizza II, Corp., No. 15-CV-2696 (CM) (DF), 2019 WL 92456, at *7 (S.D.N.Y. Dec. 6, 2018); see 12 N.Y.C.R.R. § 146-1.8. A required uniform is “clothing required to be worn while working at the request of an employer.” 12 N.Y.C.R.R. § 146-3.10(a). However, “‘clothing that may be worn as part of an employee's ordinary wardrobe' is not eligible for reimbursement.” Vazquez v. Bkuk 10 Corp., No. 19-CV-3919 (AT) (JLC), 2022 WL 17728033, at *6 (S.D.N.Y. Dec. 16, 2022) (quoting 12 N.Y.C.R.R. §146-3.10). An “ordinary wardrobe” is “ordinary basic street clothing selected by the employee where the employer permits variations in details of dress,” 12 N.Y.C.R.R. § 146-3.10(b). To qualify for reimbursement for a uniform, a plaintiff “must allege facts sufficient to prove that it was specifically required for [their] work and did not consist of ordinary clothing that could be worn as part of [their] wardrobe.” Vazquez, 2022 WL 17728033, at *7; see also Pinzon v. 168 8th Ave. Food Corp., No. 20-CV-6156 (PAE) (SN), 2021 WL 4894678, at *5 (S.D.N.Y. July 14, 2021) (plaintiff must include specific details alleging what uniform was comprised of, if it bore company logo, or otherwise was not of a “general type of ordinary basic street clothing”).
Plaintiffs allege that Defendants failed to reimburse them for expenses related to tools of the trade-$1,100 for 2 pairs of non-slip shoes and 12 chef jackets for Plaintiff Casiano, Compl. ¶ 48, and $130 for 2 pairs of non-slip shoes and 6 shirts for Plaintiff Mendoza. Id. ¶ 64; see also ECF 55-8 at 2. However, neither of the Plaintiffs plead facts that suggest that the shoes, jackets, or shirts “were specialized for their employment, bore a company logo, or otherwise were not of a ‘general type of ordinary basic street clothing.'” Pinzon, 2021 WL 4894678, at *5; see also Hernandez v. 99 Thai Playground LLC, No. 19-CV-01257 (ALC) (SN), 2022 WL 18539303 (S.D.N.Y. Nov. 28, 2022) (denying plaintiff's tools of the trade claim for a vest, an apron, and 4 pairs of kitchen shoes because the plaintiff's “thin” allegations did not a support a finding that the items constituted a “uniform”); Salinas v. Starjem Rest. Corp., No. 13-CV-2992 (AT), 123 F.Supp.3d 442, 476 (S.D.N.Y. 2015) (“[C]losed-toed shoes with a non-slip sole . . . are not a ‘uniform' under [the FLSA].”) (citing Op. Letter from Alexander J. Passantino, Acting Administrator, U.S. Dep't of Labor, Wage & Hour Div. 2 (May 15, 2008), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2008 05 15 04 FLSA.pdf).
The Court is sympathetic to Plaintiff Casiano's request for reimbursement for his purchase of chef jackets, understanding that chef jackets are not typically part of ordinary wardrobe. The Court doubts, however, that Plaintiff Casiano was required to buy twelve chef jackets. Because he did not disaggregate the costs of the shoes and chef jackets, it is not possible for the Court to determine the relative costs of the items and reimburse Plaintiff Casiano for at least one chef jacket. Cf. Cocoletzi, 2019 WL 92456, at *15. In Cocoletzi, the court awarded the cost of one of each of the tools of the trade because the plaintiff provided a breakdown of the cost of the individual items. Id.
Accordingly, I recommend reimbursement for “tools of the trade” expenses be DENIED.
D. Interest
Plaintiffs seek prejudgment interest under the NYLL for unpaid wages and overtime wages. (ECF 55 at 15). Although a plaintiff may not recover both liquidated damages and prejudgment interest under the FLSA, no such limitation applies to liquidated damages and prejudgment interest awarded under the NYLL. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988). Because I recommended that liquidated damages be awarded under the NYLL, prejudgment interest is recoverable here. New York law provides that interest shall be calculated at nine percent per year. N.Y. C.P.L.R. § 5004. Where, as here, the damages were incurred at various times, interest would run from either “the date it was incurred or upon all of the damages from a single reasonable intermediate date.” See N.Y. C.P.L.R. § 5001. Interest only accrues as to compensatory damages and is not based on liquidated damages. MossoSalazar v. New Lexington Corp., No. 18-CV-2505 (GBD) (SDA), 2018 WL 6288137, at *5 (S.D.N.Y. Sept. 4, 2018). Because failure to provide proper wage statements and notices is separate from unpaid wages, prejudgment interest does not accrue as to the statutory damages. See Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *24 (E.D.N.Y. Sept. 22, 2017).
Plaintiffs do not propose an intermediate date so the Court proposes its own. The Court finds that a reasonable intermediate date for Plaintiff Casiano is September 28, 2020 (the midpoint between January 1, 2020 and June 26, 2021), and a reasonable intermediate date for Plaintiff Mendoza is October 30, 2020 (the midpoint between May 1, 2020 and April 30, 2021). Thus, Plaintiff Casiano should be awarded prejudgment interest of nine percent per annum from September 28, 2020, through March 24, 2023, the date Judge Engelmayer entered the default judgment in this case (ECF 48), or 907 days ($13,380 unpaid overtime wages x 9% x [1/365]). According, Plaintiff Casiano's total prejudgment interest award is $2,984.03 ($3.29/day x 907 days). Plaintiff Mendoza should be awarded prejudgment interest of nine percent per annum from October 30, 2020 through March 24, 2023, or 875 days ([$10,400 unpaid wages + $21,450 unpaid overtime wages + $2,340 unpaid spread of hours pay] ¶ 9% x [1/365]). Accordingly, Plaintiff Mendoza's total prejudgment interest award is $7,376.25 ($8.43/day x 875 days).
E. Attorneys' Fees and Costs
Plaintiffs' prevailing on their NYLL claims entitle them to an attorneys' fees award. N.Y. Lab. Law § 198 (1-a). The Court has “considerable discretion” in determining a reasonable fee. See Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014). To evaluate “reasonableness,” courts often employ the lodestar approach, calculated by multiplying the reasonable hourly rate with the reasonable number of hours required by the matter. Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). The Court can draw upon its own knowledge as to the market rates as well as rely on submissions from the parties. Adorno v. Port Auth., 685 F.Supp.2d 507, 511-12 (S.D.N.Y. 2010). Relevant factors include the attorneys' experience in the field, what similar attorneys in the district charge, and what other clients pay for similar services. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 191 (2d Cir. 2008).
Plaintiffs request $5,401.25 in attorneys' fees. Plaintiffs' counsel billed at the following rates:
1) Catalina Sojo (“Ms. Sojo”): $350 per hour;
2) Frank Palermo (“Mr. Palermo”): $350 per hour;
3) Bryan D. Robinson (“Mr. Robinson”): $300 per hour; and
4) Paralegals: $125 per hour.
(ECF 55 at 17-18). Ms. Sojo is the Managing Member of CSM Legal, P.C., formerly Michael Faillace & Associates. Ms. Sojo received an LL.M. from Cornell University School of Law in 2019 and joined the firm in June 2020. Mr. Palermo, an associate attorney who graduated with a J.D. from Pennsylvania State University-Dickinson School Law in 2017, joined the firm in March 2022. Prior to joining the firm, Mr. Palermo worked as an associate in a personal injury practice. Mr. Robinson is an associate who graduated from the Maurice A. Deane School of Law at Hofstra University in 2018.
Courts consider an attorney's experience working in wage-and-hour cases. See Hernandez v. JRPAC Inc., No. 14-CV-4176 (PAE), 2017 WL 66325, at *3 (S.D.N.Y. Jan. 6, 2017); Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 28 (S.D.N.Y. June 12, 2015) (“Generally, rates in excess of $225.00 per hour are reserved for FLSA litigators with more than three years' experience.”). Here, Ms. Sojo has over three years' experience as a FLSA litigator and is a managing member of the firm. However, at the time she billed to this matter, she was barely a second-year associate. Her hourly rate of $350 is unreasonable for work performed as a junior associate. Similarly, Mr. Palermo and Mr. Robinson's $350 hourly and $300 hourly billing rate, respectively, are unreasonably high for associates with limited experience. See Hernandez, 2017 WL 66325, at *3 (noting FLSA partners typically receive $400 per hour, senior associates $300 per hour, and junior associates $225 per hour); Gonzalez, 112 F.Supp.3d at 28. Mr. Palermo has only been at the firm for 2 years, and he did not have any experience in wage-and-hour cases prior to then. Accordingly, because Mr. Palermo has fewer than three years' experience in this practice area, the Court finds that his hourly rate of $350 is excessive. Additionally, Plaintiffs' counsel fails to provide any information regarding when Mr. Robinson joined the firm. Although counsel states that Mr. Robinson had experience in employment law prior to joining the firm (ECF 55 at 18), counsel does not explain whether this experience was specific to wage-and-hour cases. Nevertheless, the Court assumes that he is a junior associate because his billing rate is lower than that of Ms. Sojo and Mr. Palermo. Accordingly, the Court finds that Mr. Robinson's hourly rate of $300 is excessive. As junior associates, appropriate hourly rates are $225 for all three lawyers.
Because Plaintiffs' counsel failed to provide any information regarding the paralegals, such as their name or experience level, there is insufficient evidence for the Court to determine the proper hourly rate to award them. See Penta v. Costco Wholesale Corp., No. 14-CV-3587 (DLI) (VMS), 2016 WL 1171612, at *6 n.4 (E.D.N.Y. Mar. 25, 2016) (awarding no fees for an “unidentified paralegal”); Lizondro-Garcia v. Kefi LLC, No. 12-CV-1906 (HBP), 2015 WL 4006896, at *8 (S.D.N.Y. July 1, 2015) (declining to award fees for paralegals where counsel failed to provide their names and qualifications); Executive Risk Indem. Inc. v. FieldBridge Assoc. LLC, No. 13-CV-4354 (KNF), 2015 WL 1267308, at *5 (S.D.N.Y. Mar. 18, 2015) (declining to award fees for paralegals who “are never mentioned by name” and “no information is provided about them”). Accordingly, I recommend awarding no fees for the billed paralegal work.
In assessing the reasonableness of the number of hours billed, the Court examines whether a “reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Where the amount billed is excessive, the Court “should reduce the stated hours accordingly.” Cocoletzi, 2019 WL 92456, at 11; see McGlone v. Contract Callers Inc., 146 F.Supp.3d 582, 586-87 (S.D.N.Y. 2015) (finding work that could be done as a paralegal or junior associate, such as “preparation of digests and trial exhibitions” and “vagueness, inconsistencies, and other deficiencies in the billing records” warranted reducing attorney's fees by 25 percent).
Here, the billing records repeatedly assign exorbitant hourly rates for work. (ECF 55-9 at 1-2). For example, in an entry dated October 4, 2021, Ms. Sojo (“CS”) billed at an hourly rate of $350 to “[r]eview and edit complaint/send to paralegal for final edits.” As noted above, Ms. Sojo was barely a second-year associate at that time and an hourly rate of $350 for a junior associate is high. There are also multiple entries from 2023 in which Ms. Sojo and Mr. Robinson bill at high rates simply to review court orders or to review the docket. (ECF 55-9 at 2). Further, an entry from March 4, 2023 details that Ms. Sojo reviewed and edited the Proposed Findings of Fact and Conclusions of Law. However, this submission contained numerous errors and almost all of the provided damage calculations were incorrect. Accordingly, the Court recommends reducing the attorneys' fees by 25 percent.
Using the adjusted billing rates, Mr. Palermo's fees should be reduced to $1,170 (5.2 hours x $225 hourly rate), Mr. Robinson's should be reduced to $1,102.50 (4.9 hours x $225 hourly rate), and Ms. Sojo's rate should be reduced to $697.5 (3.1 hours x $225 hourly rate). The total attorneys' fee award should be reduced to $2,227.50 ([$1,170 + $1,102.50 + $697.5] -25%). As explained above, I recommend not awarding fees for the unidentified paralegals.
Plaintiffs also seek recovery of $807.80 in filing and service costs. (ECF 55 at 19). Because Plaintiffs provided evidence of service costs and the Court takes judicial notice of the $402 filing fee, as reflected on the docket, the Court recommends awarding the requested $807.80 in costs.
Accordingly, the total recommended attorneys' fees and costs award totals $3,035.30 ($2,227.50 + $807.80).
IV. CONCLUSION
For the foregoing reasons, I recommend that Defendants be held liable to Plaintiffs as follows:
1) Plaintiff Casiano:
a. $36,760 in damages ($13,380 unpaid overtime wages + $13,380 liquidated damages + $10,000 notice damages); and
b. $2,984.03 in prejudgment interest.
2) Plaintiff Mendoza:
a. $68,380 in damages ($10,400 unpaid minimum wages + $21,450 unpaid overtime wages + $2,340 unpaid spread of hours pay + $34,190 liquidated damages); and
b. $7,376.25 in prejudgment interest.
3) $3,035.30 in attorneys' fees and costs.
V. OBJECTIONS
In accordance with 28 U.S.C. §636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6. A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul A. Engelmayer, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Engelmayer.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).