Opinion
21-CV-1744 (GBD) (JW)
01-24-2024
ENRIQUE CASTILLO, Plaintiff, v. Z DELI GROCERY V CORP d/b/a Z Grill, ALI ESMAEL ZIAD, and MOHAMMED ZIAD, individually, Defendants. Year
TO THE HON. GEORGE B. DANIELS, United States District Judge:
REPORT & RECOMMENDATION
JENNIFER E. WILLIS UNITED STATES MAGISTRATE JUDGE
I. BACKGROUND
This FLSA and NYLL action was referred to this Court for a Report and Recommendation on Plaintiff's Motion for Default and an inquest on damages. Dkt. No. 64. The action was commenced in February 2021. Dkt. No. 1. In March 2021, Defendant Z Deli Grocery Corp was served through the New York Department of State. Dkt. No. 11. Later that month, Defendants' former attorney filed a notice of appearance. Dkt. No. 12. On March 30, 2021, the Parties stipulated to an extension of Defendants' time to answer, and Defendants accepted service of the Complaint. Dkt. No. 15. The Parties then exchanged discovery and conducted the depositions of the named Defendants. Dkt. No. 72 at ¶7.
In December 2022, this case was referred to this Court to resolve various pretrial matters. Dkt. No. 55. In January 2023, this Court granted Defendants' Counsel's Motion to Withdraw and directed that Defendant “Z Deli Grocery V Corp d/b/a Z Grill must obtain new counsel by February 3, 2023.” Dkt. No. 62. The Order further ruled that “Individual Defendants Ali Esmael Ziad and Mohammed Ziad must either obtain new counsel or appear pro se by February 3, 2023.” Dkt. No. 62.
At a remote videoconference attended by the individual Defendants on January 13, 2023, this Court warned the Defendants that Z Deli Grocery V Corp. could not proceed pro se, and that if they did not find a new attorney to represent the corporation, a default judgment would be imposed by the Court. Dkt. See Dkt. No. 75 at 12:9-22, (“So either you hire a lawyer at least on behalf of the company, or plaintiff's counsel will begin to go through the steps to eventually get a default judgment against the company.if the company doesn't have a lawyer, it can't defend itself, it can't fight back, it doesn't get to say anything, and a judgment, a money amount, can be entered against the company... the company has to have an attorney because it cannot proceed pro se.”); see also Dkt. No. 62.
In February 2023, Judge Daniels noted that the Defendants had not responded to duly issued Orders, and he invited the Plaintiff to move for default within sixty days. Dkt. No. 65. Later that month, Judge Daniels referred any anticipated motions for default to this Court. Dkt. No. 67. In March 2023, Plaintiff moved for default. Dkt. No. 70.
On March 31, 2023, this Court issued an Order clarifying that it had received a voicemail from the pro se individual Defendant, Mr. Ziad. Dkt. No. 74. That Order encouraged the Defendants to contact the Pro Se Intake Unit or the New York Legal Assistance Group. Dkt. No. 74.
In one final attempt to prompt Defendants to respond to the Court's directives, on September 5, 2023, this Court issued another Order instructing that “each of the Defendants submit a letter to the Court by September 18, 2023 to show cause as to why the Court should not enter a default judgment against them. If the Court does not receive any communication by September 18th showing good cause for the failure to respond to Plaintiff's Motion for Default, the Court may enter judgment against the Defendants.” Dkt. No. 77.
The Court has received nothing but silence from Defendants.
II. LEGAL STANDARD
Rule 55(a) of the Federal Rules of Civil Procedure provides that the Clerk of the Court shall enter a default against a party who “has failed to plead or otherwise defend” an action. Antolini v. McCloskey, No. 19-CV-9038(GBD)(SDA), 2021 WL 3076698, at *2-3 (S.D.N.Y. July 20, 2021) citing Fed.R.Civ.P. 55(a). However, as a “clear preference exists for cases to be adjudicated on the merits,” it is well established that “default judgments are disfavored.” Id. citing Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 174 (2d Cir. 2001). Id.
The decision “to grant a motion for a default judgment lies in the sound discretion of the trial court.” O'Callaghan v. Sifre, No. 05-CV-7437 (VM)(DCF), 242 F.R.D. 69, 73 (S.D.N.Y. 2007) citing Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999)). “In determining whether to grant such a motion, the court may consider numerous factors, including whether plaintiff has been substantially prejudiced by the delay involved and whether the grounds for default are clearly established or are in doubt,” as well as “the same factors that apply to a motion to set aside entry of a default: (1) whether the default was willful; (2) whether the plaintiff[ ] would be prejudiced by the denial of the motion for default judgment; and (3) whether there are any meritorious defenses to plaintiff's claims.” See Antolini, supra.
Any well-pleaded allegations in Plaintiffs' Complaint, affidavits, and declarations are “deemed to be true,” except for those allegations relating to damages. See Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 225 (S.D.N.Y. 2020) (The court “may also rely on factual allegations pertaining to liability contained in affidavits and declarations...”) citing Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) and Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993). With respect to damages, “a plaintiff must provide evidence establishing the amount of damages with reasonable certainty.” Id. citing Lenard v. Design Studio, 889 F.Supp.2d 518, 527 (S.D.N.Y. 2012).
III. DISCUSSION
To “establish a claim under the FLSA, the plaintiff must first show that (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.” See Pelgrift v. 335 W. 41st Tavern Inc., No. 14-CV-8934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017). Plaintiff has adequately alleged all three prongs.
First, Plaintiff has established that the corporate Defendant Z Deli Grocery Corp “is an enterprise participating in commerce or the production of goods for the purpose of commerce” within the meaning of the FLSA, and that its annual gross revenue was in excess of $500,000 as required by 29 U.S.C. § 203(s)(1)(A)(i)-(ii). See Dkt. No. 1 at ¶17 (“Z Grill has (1) employees engaged in commerce or in the production of goods for commerce and handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (2) an annual gross volume of sales in excess of $500,000.00.”); see Pelgrift, supra at *7 (finding a complaint merely restating the statutory definition sufficient given reasonable inferences); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (S.D.N.Y. 2015). Here, it is reasonable to infer that a New York City deli with over $500,000 in annual sales would have required goods from outside New York State that moved through interstate commerce. See e.g. Baizan Guerrero v. 79th St. Gourmet & Deli Inc., No. 18-CV-04761(ARR)(ST), 2019 WL 4889591, at *5 (E.D.N.Y. Sept. 10, 2019)(“it is reasonable to infer that the operation of a New York deli with over $500,000.00 in annual sales “requires a wide variety of materials ... for example, foodstuffs, kitchen utensils, cooking vessels, cleaning supplies,” and it is “reasonable to infer that some of these materials moved or were produced in interstate commerce.”). Thus, the first prong is met.
Second, the Plaintiff has also alleged that he was an employee of the corporate Defendant. See Dkt. No. 1 at ¶¶2, 11 (“Plaintiff worked at Z Grill, located at 803 8th Ave, New York, NY 10019, from on or about 2007 through on or about February 14, 2021...Plaintiff was employed by Defendants as a sous chef...”): Vazquez v. Wally's Deli & Grocery Corp., 482 F.Supp.3d 178, 184 (S.D.N.Y. 2020)(set aside on other grounds) (“Plaintiff has alleged that he is an employee, which the FLSA defines as “any individual employed by an employer.”). Plaintiff's Complaint also adequately alleges that the individual Defendants meet the definition of an “employer” under the FLSA. See 29 U.S.C. § 203(d). The Second Circuit has held that “the determination of whether an employer-employee relationship exists for purposes of the FLSA should be grounded in economic reality rather than technical concepts.” Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Plaintiff has adequately alleged that individual Defendants Ali Esmael Ziad and Mohammed Ziad were Plaintiff's employers as a matter of economic reality. See Dkt. No. 1 at ¶¶ 22-23, 28-29 (“A. Ziad exercises sufficient control over Z Grill to be considered Plaintiff's employer under the FLSA and NYLL, and at all time material hereto said defendant had the authority to hire and fire Plaintiff and established and maintained policies regarding the pay practices at Z Grill. A. Ziad had substantial control over Plaintiff's working conditions and practices alleged herein.”). For these same reasons, the Plaintiff has also sufficiently alleged he is an employee covered by the NYLL. See Vazquez, supra (“New York's Labor Law mirrors the FLSA except for the fact that it does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales.”).
Third, while 29 U.S.C. § 213(a)(1) exempts employees working in a “bona fide executive, administrative or professional capacity” from the overtime provisions of the FLSA, Plaintiff has adequately alleged that he is a non-exempt employee. See generally Schwind v. EW & Assocs., Inc., No. 03-CV-9904(WCC) 357 F.Supp.2d 691 (S.D.N.Y. 2005). A salaried employee “achieves exempt status under the administrative exemption if his ‘primary duty consists of the performance of ... office or nonmanual work directly related to management polices or general business operations of his employer or his employer's customers ... which includes work requiring the exercise of discretion and independent judgment.'” Id. citing 29 C.F.R. § 541.2(e)(2). Because “the FLSA is a remedial statute, its exemptions are construed narrowly, and the burden rests on the employer to prove that a particular employee is exempt from the Act's requirements.” See Howard v. Port Auth. of New York, New Jersey, No. 09-CV-2976(JSR) 684 F.Supp.2d 409, 412 (S.D.N.Y. 2010) citing Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163 (2d Cir.2008)(quotation marks omitted).
Here, based on Plaintiff's alleged position as a “sous chef,” he has sufficiently pleaded that he was a nonexempt employee under the FLSA and NYLL. See Ergin v. 8th Hill Inc., No. 20-CV-4594 (AJN), 2021 WL 4267635, at *3 (S.D.N.Y. Sept. 20, 2021)(granting a default judgment and finding the plaintiff's allegations that he was a “sous chef” along with the fact he “did not have authority to hire or terminate other workers and he did not have discretionary decision-making powers” as “sufficient to establish that he was an employee for FLSA purposes.”) citing Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988)(“the ultimate concern is whether, as a matter of economic reality, the workers depend upon someone else's business for the opportunity to render service or are in business for themselves.”).
Having established coverage under the FLSA and NYLL, to sufficiently allege a wage claim a plaintiff must allege that he “worked hours for which [he] did not receive . . . overtime wages.” Tackie v. Keff Enterprises LLC, No. 14-CV-2074 JPO, 2014 WL 4626229 (S.D.N.Y. Sept. 16, 2014) citing Zhong v. August August Corp., 498 F.Supp.2d 625, 628 (S.D.N.Y.2007). The requirements are similar under the NYLL. See Vazquez, supra (“New York's Labor Law mirrors the FLSA.”). Here, Plaintiff has alleged that he worked more than 40 hours each week and that he was not compensated for that overtime. Dkt. No. 1 at ¶¶ 51-61 (“Throughout the relevant time period, Plaintiff worked in excess of forty (40) hours per workweek. At all relevant times throughout his employment, Defendants operated under a policy of willfully failing and refusing to pay Plaintiff one and one-half times the regular hourly rate of pay for work in excess of forty (40) hours per workweek...”). Plaintiff has also alleged that he was not provided wage notices or wage statements. Dkt. No. 1 at ¶¶38, 48-50, 62-69 (“Defendants never provided Plaintiff with any documentation as to his hours or his rate of pay.”).
Furthermore, Plaintiff has established timeliness under the FLSA and NYLL. Plaintiff has sufficiently alleged that the Defaulting Defendants' failure to pay him was willful. Dkt. No. 53-54, 60, 63-65, 67 (“Defendants' decision not to pay overtime to Plaintiff was willful.”). Allegations of willfulness are accepted as true in a default. See Easterly v. Tri-Star Transp. Corp., No. 11-CV-6365 VB, 2015 WL 337565, at *6 (S.D.N.Y. Jan. 23, 2015) (“Plaintiff alleges that Defendant committed FLSA violations willfully.. .which the Court accepts as true by Defendant's default.”). Therefore, “the three-year federal period applies.” Id. Accordingly, Plaintiff's Complaint filed on February 27, 2021 covers FLSA claims from February 27, 2018 to February 27, 2021 and NYLL claims from February 27, 2015 to February 27, 2021. As Plaintiff's claims cover his employment from March 1, 2015 to February 14, 2021, his claims are timely. Dkt. No. 1 at ¶40-42.
IV. CALCULATION OF DAMAGES
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true.” See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The court “must conduct an inquiry sufficient to establish damages to a reasonable certainty ” Chun Jie Yin v. Kim, No. 07 CV 1236 DLI JO, 2008 WL 906736, at *3 (E.D.N.Y. Apr. 1, 2008)(emphasis added); see also Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666 (S.D.N.Y. 2011). Documentary evidence “can suffice in lieu of an evidentiary hearing.” Pineda, supra, citing Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir.1991).
Under the FLSA and NYLL, if an “employer has defaulted, a court may presume the employee's recollection of hours to be correct.” See Villanueva, supra at 232; see also Cao v. Chandara Corp., No. 00-CV-8057(SAS), 2001 WL 34366628 (S.D.N.Y. July 25, 2001) (finding “plaintiff's estimates of the hours he worked and the wages he earned” to be “sufficient evidence from which an award of damages under FLSA may be made.”).
As Plaintiff has provided a sufficient basis to calculate the damages, the Court will set damages without conducting a separate hearing. See generally Yascaribay v. Jon 2, LLC, No. 17-CV-4573 (AJN), 2018 WL 2465380, at *2 (S.D.N.Y. June 1, 2018)(“To determine the amount of damages, the Court may conduct a hearing, but doing so is not necessary “as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.”).
Plaintiff seeks and is entitled to 1) the full overtime rate for each overtime hour worked, 2) liquidated damages, 3) statutory damages for the failure to provide wage statements and notices 4) pre-judgment interest, 5) post-judgment interest, and 6) attorneys' fees and expenses. Dkt. No. 1 at ¶5 (“Plaintiff seeks injunctive and declaratory relief against Defendants' unlawful actions, compensation for Defendants' failure to pay overtime wages and spread of hours pay, liquidated damages, compensatory damages, pre-judgment and post-judgment interest, and attorneys' fees and costs, pursuant to the FLSA and NYLL.”). See generally Gomez v. Big Line Inc., No. 20-CV-1094(VSB)(RWL), 2020 WL 6742803 (S.D.N.Y. Nov. 17, 2020)(awarding each category of damages).
1. Unpaid Overtime Damages
Plaintiff's declaration recounts his recollection of how many hours he worked and his rate of pay. Dkt. No. 73 at ¶14-18 (“...in 2015 I was paid $650 per week in cash. Starting in 2016 through the end of 2017, I was paid $700 per week in cash. From the beginning of 2018 through the end of 2019, I was paid $750 per week in cash. From 2020 through 2021, I was paid $800 per week in cash... From the beginning of my employment through March 2020, I virtually always worked Monday to Sunday (seven days per week) from 7:00 pm to 7:00 am.”).
Plaintiff's counsel submitted a chart calculating the damages based upon these recollections. See Dkt. No. 72-1 (based on 80.5hours worked per week). The chart reflects that Plaintiff did not work from March 15, 2020 to April 12, 2020. When he began to work again in April 2020, Plaintiff alleges that he worked an additional two hours per day, resulting in 94.5 hours each week. Dkt. No. 73 at ¶19 (“From April 2020 through November 2020, I worked Monday to Sunday (seven days per week) from 7:00 am to 9:00 pm.”). The chart thus reflects the extra two hours per day for that period. Dkt. No. 72-1.Starting in November 2020, the Plaintiff claims he had to work a double shift every other weekend resulting in 98.5 hours a week every other week. The chart accurately reflects an increase of four hours every other week for that period. The chart also reflects that Plaintiff was paid weekly, and that his pay increased from $650 per week to $700 per week in 2016, to $750 per week in 2018, and to $800 per week in 2020. Dkt. No. 72-1; Dkt. No. 73 at ¶¶ 13-17. Courts “have recognized that, under the FLSA, there is a rebuttable presumption that a weekly salary covers only the first 40 hours, unless the parties have an alternate agreement.” See Cazares v. 2898 Bagel & Bakery Corp., No. 18CV5953 (AJN) (DF), 2022 WL 1410677, at *9 (S.D.N.Y. Apr. 7, 2022). Moreover, courts in this District have extended this rebuttable presumption to apply under the NYLL, as well as the FLSA. Id. Therefore, as “the regular hourly rate of pay, on which time and a half must be paid, is computed by dividing the salary by the number of hours which the salary is intended to compensate,” the overtime damages are calculated by multiplying the number of hours worked each week in excess of forty by one and one-half. Id. citing 29 C.F.R. § 778.113(a).
Plaintiff claims he worked seven days a week from 7 pm to 7 am. (12 hours per shift, multiplied by 7 shifts results in a total of 84 hours per week.) Plaintiff alleged he received a 30-minute meal break per shift. Dkt. No. 1 at ¶37. Subtracting the 3.5 hours of meal break per week results in a total of 80.5 hours per week.
94.5 hours per week is computed by multiplying 14 hours by 7 days = 98 hours, minus 3.5 hours to account for the 30 minute per day meal breaks equals 94.5 hours.
Plaintiff alleges he had to work an extra four hours every other Sunday from November 2020 through February 14, 2021. The chart reflects that Plaintiff worked 98.5 hours every other week.
Plaintiff's Complaint filed on February 27, 2021 covers FLSA claims from February 27, 2018 to February 27, 2021 and NYLL claims from February 27, 2015 to February 27, 2021. Dkt. No. 1 at ¶40-42. Although a plaintiff may be “entitled to recover unpaid minimum wages and overtime pay under both the FLSA and the [NYLL], [he or she] may not recover twice.” Cazares supra at *10 citing Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-CV-3725 (DC), 2010 WL 4159391, at *3 (S.D.N.Y. Sept. 30, 2010). Instead, “[w]here a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may recover under the statute which provides the greatest amount of damages.” Id. citing Wicaksono v. XYZ 48 Corp., No. 10-CV-3635 (LAK) (JCF), 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011).
Therefore, based upon a review of the chart's calculations, the declaration, and the Complaint, Plaintiff is entitled to compensatory damages of $360,091.88, of which $164,176.88 covers the NYLL period from March 1, 2015 to February 27, 2018, and $195,915 under the FLSA for the period from February 27, 2018 to February 14, 2021.
Even though the FLSA and NYLL periods both cover three years each, the unpaid overtime damages for the period 2015 to 2018 are lower than the damages from the period 2018 to 2021 because the Plaintiff's pay rate increased.
2. Liquidated Damages
Under the FLSA, a plaintiff who demonstrates that he was improperly denied either minimum or overtime wages may recover, in addition to reimbursement of these unpaid wages, an “additional equal amount as liquidated damages.” 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) citing 29 U.S.C. § 216(b). Courts “deem defendants' actions willful where they have defaulted” and “obviously” defaulting Defendants therefore make “no showing of good faith” and hence “liquidated damages should be awarded.” Id. Thus, Plaintiff is also entitled to liquidated damages in the amount of $360,091.88.
3. Statutory Damages for Failure to Provide Wage Statements and Wage Notices
Plaintiff is also entitled to statutory damages for the failure to provide wage statements and wage notices. Under New York's Wage Theft Prevention Act (“WTPA”), employers must provide to employees a statement that lists “the dates of work...rate or rates of pay ...whether paid by the hour, shift, day, week, salary...[T]he statement shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.” Acharya v. Solanki, No. 18-CV-8010 (MKV)(JLC), 2022 WL 1144696 (S.D.N.Y. Apr. 12, 2022) citing NYLL § 195(3). The WTPA “also requires that employers provide each employee with a wage notice at the time of hiring. Id. citing NYLL § 195(1)(a).
Employees “who are not provided a wage notice within ten business days of their first day of work can recover damages of $50 for each workday that a violation occurs or continues to occur, not to exceed $5,000 and employees can recover $250 for each workday that a wage statement violation occurs or continues to occur, not to exceed $5,000.” Id. citing Canaveral v. Midtown Diner NYC, Inc., No. 19-CV-635(GBD)(JLC), 2019 WL 4195194 (S.D.N.Y. Sept. 5, 2019); see also Gamero v. Koodo Sushi Corp., No. 15-CV-2697(KPF) 272 F.Supp.3d 481 (S.D.N.Y. 2017), affd, 752 Fed.Appx. 33 (2d Cir. 2018).
Since Plaintiff adequately alleges that he never received a wage notice or wage statement in over five years working for the Defendants, he is entitled to $5,000 in statutory damages for the failure to provide wage notices and $5,000 for the failure to provide wage statements for a total of $10,000 in statutory damages. Dkt. No. 1 at ¶¶ 49-50, 63-69.
4. Pre-Judgment Interest Under the NYLL
In addition to liquidated damages, a plaintiff may recover prejudgment interest on his unpaid minimum and overtime wages under NYLL § 198(1-a). See Ramirez v. Sake II Japanese Rest., Inc., 2023 WL 3354881, at *9 (S.D.N.Y. Apr. 24, 2023) citing Andrade v. 168 First Ave Rest. Ltd., 2016 WL 3141567, at *10 (S.D.N.Y. June 3, 2016) and Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999)).
However, “prejudgment interest applies only to the amount of compensatory damages,” under the NYLL and excludes compensatory damages under the FLSA as well as “the amount of liquidated damages.” Id. citing Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *18 (S.D.N.Y. Sept. 8, 2016) and Maldonado v. La Nueva Rampa, Inc., 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012); see also Montalvo v. Paul Bar & Rest. Corp., No. 22-CV-01423(JLR)(SN), 2023 WL 6519717 (S.D.N.Y. Aug. 11, 2023)(“Pre-judgment interest is available only on actual damages, not liquidated damages.”); see also Pinzon v. Paul Lent Mech. Sys., Inc., No. 11-CV-3384 (DRH) (WDW), 2012 WL 4174410, at *1 (E.D.N.Y. Sept. 19, 2012) (“plaintiff is entitled to prejudgment interest only on the unpaid wages awarded under the NYLL...”). “This is because - unlike liquidated damages - prejudgment interest is intended to compensate a plaintiff for the loss of use of money.” Ramirez, supra, citing Chandler v. Bombardier Capital Inc., 44 F.3d 80, 83 (2d Cir. 1994)).
Prejudgment interest on damages under the NYLL “is awarded at a rate of nine percent per annum.” See Cazares v. 2898 Bagel & Bakery Corp., No. 18-CV-5953 (AJN) (DF), 2022 WL 1410677, at *18 (S.D.N.Y. Apr. 7, 2022); N.Y.C.P.L.R. § 5004. The interest may be calculated from either the “earliest ascertainable date the cause of action existed” or “from a single reasonable intermediate date,” when damages were incurred at various times. Id. citing N.Y.C.P.L.R. § 5001(b).
The Court shall adopt the midpoint of the Plaintiff's employment as an appropriate “intermediate date”. See e.g. Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994)(Courts have “wide discretion in determining a reasonable date from which to award pre-judgment interest.”). Plaintiff seeks to use the midpoint of the period covered exclusively by the NYLL, which is August 28, 2016. The Court concludes the more appropriate date is the midpoint of the period covered by Plaintiff's claims under both the NYLL and the FLSA. Since the Complaint was filed on February 27, 2021, and Plaintiff's employment began six years earlier, the appropriate date for the calculation of pre-judgment interest is February 27, 2018. Since the damages under the NYLL equal $164,176.88,interest at nine percent per year as of January 1, 2024 equals $107,237.74.
See supra, Sec. IV. 1.
Year
Interest
Total
March 2018
164,176.88
March 2018- March 2019
$14,775.92
$178,952.80
March 2019- March 2020
$16,105.75
$195,058.55
March 2020- March 2021
$17,555.27
$212,613.82
March 2019- March 2022
$19,135.24
$231,749.06
March 2019- March 2023
$20,857.42
$252,606.48
March 2019- January 2024 (10 months)
$18,808.14
$271,414.62
TOTAL
$107,237.74.
5. Post-Judgment Interest
In “contrast to pre-judgment interest, post-judgment interest is governed by federal statute.” See Morales v. Mw Bronx, Inc., No. 15-CV-6296 (TPG), 2016 WL4084159, at *11 (S.D.N.Y. Aug. 1, 2016) citing 28 U.S.C. § 1961(a). Post-judgment interest “is calculated from the date of the entry of the judgment, at the weekly average 1-year constant maturity U.S. Treasury yield rate published by the Board of Governors of the Federal Reserve System for the preceding calendar week.” Id. An award of post-judgment interest “is mandatory.” Id. citing Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008). The Court therefore recommends that the Plaintiff be awarded post-judgment interest in an amount consistent with 28 U.S.C. § 1961. See e.g. Suriel v. Cruz, No. 20-CV-8442(VSB)(SLC), 2022 WL 1750232 (S.D.N.Y. Jan. 10, 2022).
6. Attorneys' Fees and Costs
Both the FLSA and NYLL, are “fee-shifting statutes, which entitle a prevailing plaintiff to recover his reasonable attorney's fees and costs.” See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234(JGK)(JLC), 2016 WL 4704917, at *19 (S.D.N.Y. Sept. 8, 2016 citing 29 U.S.C. § 216(b); NYLL § 198(1-3).
“In order to determine the appropriate fee award, courts typically start by determining the so-called lodestar amount, or ‘the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Id. citing Millea v. MetroNorth R.R., 658 F.3d 154, 166 (2d Cir. 2011). As a general matter, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar ... creates a presumptively reasonable fee.” Gurung v. Malhotra, No. 10-CV-5086 (VM), 851 F.Supp.2d 583, 595 (S.D.N.Y. 2012). A plaintiff must “document the application [for fees and costs] with contemporaneous time records ... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” See Xochimitl, supra, citing Scott v. City of N.Y., 626 F.3d 130, 132 (2d Cir. 2010). Ultimately, a court's discretion to set a fee award is broad. See Id. citing Hensley v. Eckethart, 461 U.S. 424, 437 (1989) and Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (“We afford a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case, mindful of the court's superior understanding of the litigation and ... what essentially are factual matters.”).
But the Court need not “act as the defaulting defendants' lawyer” and “scrutinize[e] ... overly severely a fee rate within the high end of reasonable.” See Infinity Transportation MSN 6651, LLC v. Synergy Aerospace Corp., No. 19-CV-00209 (RA)(SN), 2023 WL 2789516 (S.D.N.Y. Feb. 24, 2023), citing Garcia v. Pawar Bros Corp., No. 18-CV-2656 (BMC), 2018 WL 4100482, at *2 (E.D.N.Y. Aug. 28, 2018) and Greathouse v. JHS Sec. Inc., 784 F.3d 105, 120 (2d Cir. 2015) (Korman, D.J., concurring).
Here, Plaintiff's attorney seeks a rate of $415 per hour and $165 per hour for his paralegals. Dkt. No. 72-1. An identical rate for the same attorney was approved in Perez v. Funici Welding Co. et al, No. 22-CV-1417 (ER), at Dkt. Nos. 21 and 35. Moreover, a rate of $415 per hour is far below rates approved for partners in this District. See City of Almaty, Kazakhstan v. Ablyazov, No. 15-CV-5345(JGK)(KHP), 2023 WL 8241607 (S.D.N.Y. Nov. 8, 2023)(approving a partner rate of $1,180 per hour); see also Themis Cap. v. Democratic Republic of Congo, No. 09-CV-1652 (PAE), 2014 WL 4379100, at *7 (S.D.N.Y. Sept. 4, 2014)(“billing rates substantially above those charged here, including partner billing rates in excess of $1,000 an hour, are by now not uncommon...”). Additionally, the total number of hours the attorney spent on the case (26.5) is in line with other FLSA cases in the District. See generally Elisama v. Ghzali Gourmet Deli Inc., No. 14-CV-8333 (PGG) (DF), 2016 WL 11523365 (S.D.N.Y. Nov. 7, 2016)(“this Court finds 25.60 hours to be a reasonable number of hours billed in this matter.”); see also Tackie v. Keff Enterprises LLC, No. 14-CV-2074 JPO, 2014 WL 4626229 (S.D.N.Y. Sept. 16, 2014) and Castellanos v. Mid Bronx Cmty. Hous. Mgmt. Corp., No. 13-CV-3061 JGK, 2014 WL 2624759 (S.D.N.Y. June 10, 2014). Finally, the total amount in fees and costssought, $17,490.05, is far below the one-third contingency fee other courts have accepted as a reasonable fee. See Suriel v. Cruz, No. 20-CV-8442(VSB)(SLC), 2022 WL 1750232 (S.D.N.Y. Jan. 10, 2022)(recommending attorneys fee award in the amount of one-third of the Plaintiff's recovery pursuant to contingency agreement following default judgment in FLSA action). Therefore, the Plaintiff is entitled to $17,490.05 in attorneys' fees and costs.
Plaintiff seeks costs of $402 for the filing fee, $155 for service costs, and $1,302.35 for costs related to deposing the Defendants for a total of $1,859.35 in costs.. Dkt. No. 72-1 and Dkt. No. 71 at 21.
V. RECOMMENDATION
For all the reasons stated, Plaintiff's Motion for a Default Judgment is GRANTED. Plaintiff is entitled to $360,091.88 in unpaid overtime compensation, another $360,091.88 in liquidated damages, $5000 under NYLL §195(3), $5,000 under NYLL §195(1), $107,237.74 in prejudgment interest through January 1, 2024, and $17,490.05 in attorneys' fees and costs for a total of $854,911.55, plus postjudgment interest pursuant to 28 U.S.C. §1961.
VI. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the Parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.