Opinion
14cv1594 (TPG) (DF)
03-06-2017
ELOY FLORES, et al., Plaintiffs, v. CHIRPING CHICKEN NYC INC. (d/b/a CHIRPING CHICKEN), et al., Defendants.
Copies to: Plaintiffs' counsel (via ECF) Ms. Kalli Karalexis 19-42 75th Street Flushing, NY 11370
REPORT AND RECOMMENDATION
TO THE HONORABLE THOMAS P. GRIESA, U.S.D.J.:
Currently before this Court, in this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law ("NYLL"), Sections 190 et seq. and Sections 650 et seq., is a motion for a default judgment and attorneys' fees and costs brought by plaintiffs Eloy Flores ("Flores"), Jose Alberto Mastranzo ("Mastranzo"), Lazaro Miculax ("Miculax"), Tomas Sapon Baquia[x] ("Baquiax"), Zacharias Ramirez ("Ramirez"), Jesus Mendez ("Mendez"), and Edilberto Osorno ("Osorno") (collectively, "Plaintiffs") against defendants Chirping Chicken NYC Inc. (d/b/a Chirping Chicken) (the "Corporate Defendant"), and Kalli Karalexis ("Karalexis"). For the reasons that follow, I recommend Plaintiffs' motion (Dkt. 61) be granted, and that a default judgment be entered against Defendants, holding them jointly and severally liable to Plaintiffs for the amounts set out below, for unpaid wages, overtime, spread-of-hours pay, statutory wage-statement and wage-notice damages, and liquidated damages, plus attorneys' fees, costs, and pre-judgment interest.
Although this plaintiff is named in the Complaint as Tomas Sapon Baquiar, he identifies himself as Tomas Sapon Baquiax in a Declaration that he has submitted in support of Plaintiffs' motion for a default judgment. Accordingly, this Court assumes that his name is correctly spelled "Baquiax."
The Complaint also names a "John Doe" defendant who, to this Court's understanding, has never been identified, and who Plaintiffs do not move against for a default judgment. Accordingly, this Report and Recommendation does not address Plaintiffs' claims against this defendant.
BACKGROUND
Subsequent to the filing of this action, Plaintiffs' counsel filed a second action against the same individual defendant, but a different corporate entity, on behalf of three additional employees at one of the restaurant locations implicated here. See Cabrera v. 1560 Chirp Corp., 15cv8194 (TPG) (S.D.N.Y.). Both cases resulted in defaults, and counsel moved for default judgments in both, at the same time. Given that the cases are separate (even though filed as related), this Court is issuing a separate Report and Recommendation in each case.
A. Factual Background
Given the entry of default against Defendants, the well-pleaded allegations contained in the Complaint, dated March 7, 2014 ("Compl.") (Dkt. 2), as summarized below, are deemed to be true, except for those allegations relating to damages. (See Discussion infra, at Section I(B); see also, e.g., Santillan v. Henao, 822 F. Supp. 2d 284, 290 (E.D.N.Y. 2011).) The facts included in this Report and Recommendation are taken from the Complaint, and, where particularly applicable, from Declarations that have now been submitted by four of the seven named Plaintiffs: Flores, Miculax, Baquiax, and Ramirez.
See Declaration of Eloy Flores, dated Aug. 4, 2016 ("Flores Decl.") (Dkt. 64); Declaration of Lazaro Miculax, dated July 28, 2016 ("Miculax Decl.") (Dkt. 65); Declaration of Tomas Sapon Baquiax, dated July 27, 2016 ("Baquiax Decl.") (Dkt. 66); and Declaration of Zacarias Ramirez, dated Aug. 9, 2016 ("Ramirez Decl.") (Dkt. 67).
Plaintiffs plead in their Complaint that they are all former employees of Defendants, who, Plaintiffs maintain, "own, operate, and/or control" two restaurants in Manhattan, under the name "Chirping Chicken," one located at 1560 Second Avenue (the "Second Avenue Location"), and the other at 1260 Lexington Avenue (the "Lexington Avenue Location"). (Compl. ¶¶ 2, 25.) Defendant Karalexis is alleged to have had operational control and/or an ownership interest in the Corporate Defendant, and to have determined Plaintiffs' wages, established their schedules, maintained employee records, and had the authority to hire and fire employees. (Id. ¶¶ 28-29, 34.) According to the Complaint, Defendants, at all relevant times, "both separately and jointly, had a gross annual volume of sales of not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated)." (Id. ¶ 41.) The Complaint also alleges, upon information and belief, that "Defendants and/or their enterprise were directly engaged in interstate commerce," by, for example, using and selling goods, such as "meats, beverages and cleaning supplies" that were produced outside of New York State. (Id. ¶ 42.)
Based on the Complaint, Plaintiffs were all "ostensibly employed by [D]efendants as delivery workers," although, in addition to performing delivery services, they were also required - for an equal or greater amount of time - to engage in "non-tip/non-delivery duties, such as washing dishes, washing the kitchen, receiving and carrying deliveries upstairs and stocking them around the stock room, and bringing up ice from the basement." (Id. ¶¶ 3-4, 7, 43.) The Complaint alleges that, despite the time they had to spend doing non-tipped work, "a number of plaintiffs" were unlawfully paid by Defendants at a lowered "tip credit" rate of pay. (Id. ¶¶ 7-9.) Plaintiffs also allege that, at all relevant times, they "worked for Defendants in excess of 40 hours per week," without appropriate overtime compensation. (Id. ¶ 5.) Plaintiffs further allege that Defendants failed to pay them the "spread of hours" pay required by New York State law for any days in which they worked over 10 hours per day. (Id. ¶ 6.)
Although one of the Plaintiffs, Miculax, seems to suggest, through his submitted Declaration, that he worked only at the Lexington Avenue Location (see Miculax Decl. ¶ 3 (referencing single location)), none of the other Plaintiffs, either through the Complaint or by declaration, have offered any clarity as to whether they worked at one of the two locations referenced in the Complaint, or at both.
Although Plaintiffs also allege in the Complaint that they were required "to purchase clothing and equipment necessary for their jobs at [their] own expense" (Compl. ¶ 12), they provide no details in their damages submissions regarding the nature or cost of such "clothing and equipment," and, apparently, they are not seeking to include reimbursement for such expenses in the default judgment.
The allegations of the seven individual Plaintiffs, with respect to the particular hours they worked and the pay they received, are set forth in greater detail below, in connection with this Court's assessment of their claimed damages.
B. Procedural History
Plaintiffs filed their Complaint in this action on March 7, 2014. (Dkt. 2.) On March 31, 2014, Plaintiffs filed proof that service of process had been made on the Corporate Defendant on March 19, 2014. (Dkt. 4.) Despite that apparent service, the Corporate Defendant did not appear in this action, and the Clerk of Court entered a default against it on February 23, 2015 (Dkt. 24).
Defendant Karalexis, however, did appear, through counsel (see Dkt. 7), and, after some early proceedings, the Honorable Thomas P. Griesa, U.S.D.J., referred the case against her to this Court - first to aid the parties with potential settlement (Dkt. 19), then to address a discovery dispute regarding Karalexis's failure to appear for a deposition (Dkt. 34), and then, after Karalexis apparently failed to appear for a deposition for a second time, for general pretrial supervision (Dkt. 37).
Although it appears, from the Docket, that Karalexis's appearance was untimely (see Dkts. 5, 7, 8), Plaintiffs eventually stipulated to two extensions of time for Karalexis to respond to the Complaint (Dkts. 9, 10), and, in accordance with the parties' stipulations, she filed an Answer on June 26, 2014 (Dkt. 11).
In light of Karalexis's reported failures to cooperate in discovery, this Court issued an Order on July 31, 2015, directing Karalexis to show cause by August 7, 2015, why this Court should not recommend that her Answer be stricken and that a default judgment be entered against her (Dkt. 38). Karalexis's counsel requested an extension of time to respond to this Court's Order (see Dkt. 39), and, eventually, this Court scheduled an in-person conference for August 14, 2015 to address the matter, directing Karalexis to be present (Dkt. 47). Karalexis appeared at the conference, and, after cautioning her about her discovery obligations, this Court extended the deadline for Plaintiffs to complete her deposition. (See Dkt. 49.) The deposition was finally conducted on October 29, 2015. (See Dkt. 50.) Following the deposition, though, Plaintiffs' counsel informed this Court, by letter dated February 10, 2016 (id.), that Karalexis had testified to the existence of wage-and-hour records that she then failed to produce. Karalexis's counsel responded on March 14, 2016 (Dkt. 51), by representing that Karalexis did not possess the requested documents and, moreover, that she had instructed his firm "to discontinue representing her in this matter" (id.). According to Karalexis's counsel, Karalexis "no longer wishe[d] to defend herself in this action." (Id.)
On March 23, 2016, following a telephone conference with counsel, this Court issued an Order (Dkt. 52), granting Karalexis's counsel leave to withdraw, and directing Karalexis to write to the Court, no later than April 8, 2016, "to confirm whether she in fact wishe[d] to abandon any defense of this action (potentially resulting in a default judgment against her), or whether she wishe[d] to continue to defend herself pro se in this case" (id.). This Court expressly cautioned Karalexis that, if the Court were to receive no communication from her by April 8, 2016, it would assume that she was abandoning any defense of the case. (Id.) When no such communication was received by the Court, Plaintiffs requested that Karalexis be found in default, so that Plaintiffs could move forward with a motion for a default judgment. (Dkt. 53.)
On March 23, 2016, this Court issued a Report and Recommendation to Judge Griesa (Dkt. 54), recommending that Karalexis be found in default and that Plaintiffs be granted leave to move for a default judgment against her. By Order dated June 9, 2016 (Dkt. 55), Judge Griesa adopted this Court's recommendation (to which no objections had been received), directed the Clerk of Court to enter default against Karalexis, and granted Plaintiffs leave to file their motion for a default judgment. The Clerk of Court duly issued a Certificate of Default as to Karalexis on June 13, 2016. (Dkt. 56.)
After then receiving two extensions to file a motion for a default judgment (Dkts. 58, 60), Plaintiffs filed their motion against both Defendants on August 19, 2016 (see Dkt. 61 (Notice of Plaintiffs' Motion for Default Judgment, dated Aug. 19, 2016 ("Notice of Motion")); Dkt. 62 (Declaration of Joshua S. Androphy in Support of Plaintiffs' Motion for Default, dated Aug. 19, 2016 ("Androphy Decl.")); Dkt. 63 (Memorandum of Law in Support of Plaintiffs' Application for Default Judgment, dated Aug. 19, 2016 ("Pl. Mem.")); Dkts. 64-67 (Flores, Miculax, Baquiax, and Ramirez Decls.)). On November 1, 2016, Judge Griesa referred the motion to this Court for a report and recommendation. (Dkt. 68.)
To date, neither Karalexis nor the Corporate Defendant has filed any opposition.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Default Judgment
Rule 55(a) of the Federal Rules of Civil Procedure provides that the Clerk of Court shall enter a default against a party who "has failed to plead or otherwise defend" in an action. Fed. R. Civ. P. 55(a). Local Civil Rule 55.1 of this Court further provides that a party who applies for a certificate of default by the Clerk pursuant to Fed. R. Civ. P. 55(a) "shall submit an affidavit showing (1) that the party against whom a notation of default is sought is not an infant, in the military, or an incompetent person; (2) that the party has failed to plead or otherwise defend the action; and (3) that the pleading to which no response has been made was properly served." Local Civ. R. 55.1. Once a certificate of default has been issued by the Clerk pursuant to Rule 55(a) and Local Civ. R. 55.1, then, upon application of the party seeking judgment by default, the Court may proceed to enter a default judgment against the defaulting party. Fed. R. Civ. P. 55(b).
While "default is an admission of all well-pleaded allegations against the defaulting party," Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004); see also Finkel v. Romanowicz, 577 F.3d at 79, 84 (2d Cir. 2009) (noting that, where a defendant has defaulted, the well-pleaded allegations of the complaint are deemed to be true), a court is still "'required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law,'" City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (alteration in original; quoting Finkel, 577 F.3d at 84); accord Taizhou Zhongneng Import & Export Co. v. Koutsobinas, 509 F. App'x 54, 56 (2d Cir. 2013) (summary order). "If the complaint fails to state a cognizable claim, a plaintiff may not recover even upon defendant's default." Allstate Ins. Co. v. Afanasyev, No. 12cv2423 (JBW) (CLP), 2016 WL 1156769, at *6 (E.D.N.Y. Feb. 11, 2016) (citing Finkel, 577 F.3d at 84), report and recommendation adopted, 2016 WL 1189284 (Mar. 22, 2016).
Further, although a "default judgment entered on well-pleaded allegations in a complaint establishes a defendant's liability," Bambu Sales, Inc v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995) (internal quotation marks and citation omitted), it does not reach the issue of damages, see Ferri v. Berkowitz, 561 F. App'x 64, 65 (2d Cir. 2014) (summary order) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). A plaintiff must therefore substantiate his claim for damages with admissible evidence to prove the extent of those damages. See Hounddog Prod., L.L.C. v. Empire Film Grp., Inc., 826 F. Supp. 2d 619, 627 (S.D.N.Y. 2011) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). A plaintiff bears the burden to "introduce sufficient evidence to establish the amount of damages with reasonable certainty." RGI Brands LLC v. Cognac Brisset-Aurige, S.A.R.L., No. 12cv01369 (LGS) (AJP), 2013 WL 1668206, at *6 (S.D.N.Y. Apr. 18, 2013), report and recommendation adopted, 2013 WL 4505255 (Aug. 23, 2013). Although a plaintiff is entitled to all reasonable inferences in his favor based upon the evidence submitted, see U.S. ex rel. Nat. Dev. & Const. Corp. v. U.S. Envtl. Universal Servs., Inc., No. 11cv730 (CS), 2014 WL 4652712, at *3 (S.D.N.Y. Sept. 2, 2014) (adopting report and recommendation), if a plaintiff fails to demonstrate its damages to a reasonable certainty, then the court should decline to award any damages, even where liability has been established through default, see Lenard v. Design Studio, 889 F. Supp. 2d 518, 538 (S.D.N.Y. 2012) (adopting report and recommendation).
While the Court may hold a hearing to assess the amount of damages that should be awarded on a default, see Fed. R. Civ. P. 55(b)(2) (court may conduct hearings on damages as necessary), the Second Circuit has consistently held that "[b]y its terms, [Rule] 55(b)(2) leaves the decision of whether a hearing is necessary to the discretion of the district court," Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (judges are given much discretion to determine whether an inquest hearing need be held); Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (Rule 55(b)(2) "allows but does not require . . . a hearing").
B. Burden of Proof in Wage Cases , Where Defendants' Records Are Inadequate or Have Not Been Produced
In an FLSA case, the burden falls on the plaintiff-employee to demonstrate "'that he performed work for which he was not properly compensated.'" Santillan, 822 F. Supp. 2d at 293-94 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); superseded on other grounds by The Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251, et seq.). As noted by the Supreme Court, however, employees "'seldom keep . . . records [of hours worked] themselves,'" id. at 294 (quoting Anderson, 328 U.S. at 687) (alteration in original), and, "'even if they do, the records may be and frequently are untrustworthy,'" id. (quoting Anderson, 328 U.S. at 687). Employers, on the other hand, have a duty to maintain such records pursuant to Section 11(c) of the FLSA, and, thus, the "easiest way for an FLSA plaintiff to discharge his or her burden of proof is, generally, to 'secur[e] the production of such records' from the employer." Id. (quoting Anderson, 328 U.S. at 687) (alteration in original).
A defaulting defendant that never appears or produces documents "deprive[s] the plaintiff of the necessary employee records required by the FLSA, thus hampering [the] plaintiff's ability to prove his damages." Id. Thus, where no wage-and-hour records have been produced, a plaintiff may meet his burden of proof "by relying on recollection alone" to establish that he "performed work for which he was improperly compensated." Id. at 293-94 (finding, in a default context, that plaintiff provided a "sufficient basis for [the] determination of damages" where he "submitted a sworn declaration containing information as to hours worked and rates of pay based on estimation and recollection," even where the plaintiff's submission was "general and not detailed" (internal quotation marks and citations omitted)). "Moreover, in the absence of rebuttal by defendants . . . [the employee's] recollection and estimates of hours worked are presumed to be correct." Id. (internal quotation marks and citations omitted); see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 67 (2d Cir. 1997) (where an employer fails to produce evidence regarding the amount of work that the employee performed or evidence to negate "'the reasonableness of the inference to be drawn from the employee's evidence,'" the court may "'award damages to the employee, even though the result be only approximate.'" (quoting Anderson, 328 U.S. at 687-88)).
Under New York law, courts actually "go[] one step further and require[] that employers who fail to maintain the appropriate records 'bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.'" Santillan, 822 F. Supp. 2d at 294 (quoting N.Y. Lab. Law § 196-a).
C. FLSA and NYLL Statutes of Limitations
Under the FLSA, the applicable statute of limitations is generally two years, but is extended to three years upon a finding that the FLSA violations by an employer were willful. 29 U.S.C. § 255(a). Willfulness under the FLSA is found where an employer "knew or showed reckless disregard for the matter of whether [the employer's] conduct was prohibited by the statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). Moreover, "a defendant's default, in itself, may suffice to support a finding of willfulness." Santillan, 822 F. Supp. 2d at 297. The applicable limitations period for NYLL claims is six years. N.Y. Lab. Law § 663(3).
D. Damages Available Under the FLSA and NYLL for Minimum Wage and Overtime Pay Violations
Pursuant to the FLSA, an employee must be paid, at least, the federal statutory minimum wage for the first 40 hours that he or she worked in a given work week. 29 U.S.C. § 206(a). Moreover, an employee is entitled to be paid for overtime hours (i.e., hours exceeding 40 per week), at a "rate not less than one and one-half times the regular rate at which [the employee] is employed." Id. § 207(a)(1); see also, e.g., Chun Jie Yin v. Kim, No. 07cv1236 (DLI) (JO), 2008 WL 906736, at *3 (E.D.N.Y. Apr. 1, 2008) (adopting report and recommendation and noting that "[t]he FLSA requires employers to pay their employees the statutory minimum wage as well as a premium (150 percent of the statutory minimum wage) for hours worked above 40 hours per week" (citations omitted)). A plaintiff with a successful minimum-wage claim under the FLSA is entitled to recover damages up to, but not exceeding, these statutory amounts. See Santillan, 822 F. Supp. 2d at 293. At all times relevant to this action, the federal minimum wage was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C).
Under the NYLL, a prevailing plaintiff is entitled to recover "the full amount of wages owed, not just the statutory minimum wage for the hours worked." Chun Jie Yin, 2008 WL 906736, at *4; see also N.Y. Lab. Law § 198(3) ("All employees shall have the right to recover full wages . . . accrued during the six years previous to the commencing of such action."). Where, however, a plaintiff-employee was not owed more than the minimum wage, then the statutory rates come into play. For the periods relevant to this action, the statutory minimum wage in New York State was as follows:
| As of January 1, 2007: | $7.15 per hour |
| As of July 24, 2009: | $7.25 per hour |
| As of December 31, 2013: | $8.00 per hour |
| As of December 31, 2014: |
The New York State minimum wage was raised again as of December 31, 2015, but that date was after the period of Plaintiffs' employment.
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." Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08cv3725 (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." Wicaksono v. XYZ 48 Corp., No. 10cv3635 (LAK) (JCF), 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011), report and recommendation adopted, 2011 WL 2038973 (May 24, 2011) (internal quotation marks and citation omitted). Accordingly, when calculating minimum-wage damages, the higher of either the FLSA or the New York minimum wage should be used for any period covered by both statutes. Id., at *3.
E. Spread of Hours Pay Pursuant to the NYLL
Under the NYLL (but not the FLSA), in addition to receiving damages for unpaid regular wages and overtime, an employee is entitled to receive "spread-of-hours" pay, which is "one hour's pay at the basic minimum hourly wage rate" for any workday that lasts longer than 10 hours. 12 NYCRR § 142-2.4(a); see also N.Y. Lab. Law §§ 650 et seq. "Spread of hours compensation is calculated by multiplying the minimum wage by the number of days an employee worked more than ten hours." Angamarca v. Pita Grill 7 Inc., No. 11cv7777 (JGK) (JLC), 2012 WL 3578781, at *8 (S.D.N.Y. Aug. 2, 2012), report and recommendation adopted, Dec. 14, 2012 (slip op.).
F. Wage-Statement and Wage-Notice Requirements
1. Wage Statements
Pursuant to New York's Wage Theft Prevention Act ("WTPA"), an amendment to the NYLL that was made effective as of April 9, 2011, employers are required to
'furnish each employee with a statement with every payment of wages, listing the following' information: (1) the dates of work covered by that payment of wages; (2) the employee's name; (3) the employer's name, address, and telephone number; (4) the rate or rates of pay and basis thereof; (5) gross wages; (6) deductions; (7) allowances, if any, claimed as part of the minimum wage; and (8) net wages.Salinas v. Starjem Rest. Corp., No. 13cv2992, 2015 WL 4757618, at *13 (S.D.N.Y. Aug. 12, 2015) (quoting N.Y. Lab. Law § 195(3)); see also Baltierra v. Advantage Pest Control Co., No. 14cv5917 (AJP), 2015 WL 5474093, at *10-11 (S.D.N.Y. Sept. 18, 2015). Prior to February 27, 2015, i.e., during the periods relevant to this action, "the WTPA entitled employees to recover statutory damages for violations of the wage-statement requirement of $100 per work week, not to exceed $2,500." Baltierra, 2015 WL 5474093, at *10 (citation omitted); accord Inclan v. New York Hosp. Grp., Inc., 95 F. Supp. 3d 490, 501 (S.D.N.Y. 2015); see also 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Lab. Law § 198(1-d).
2. Wage Notices
In addition, beginning April 9, 2011, the WTPA required employers to provide written wage notices "on or before February first of each subsequent year of the employee's employment with the employer." N.Y. Lab. Law § 195(1)(a) (eff. April 9, 2011 to Feb. 27, 2015). The wage notice was required to be "in English and in the language identified by each employee as the primary language of such employee," id., and was required to contain the following information:
(1) the rate or rates of pay and basis thereof; (2) allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; (3) the regular pay day designated by the employer; (4) the employer's name; (5) any 'doing business as' names used by the employer; (6) the physical address of the employer's main office or principal place of business, and a mailing address if different; (7) the employer's telephone number; and (8) such other information as the commissioner deems material and necessary.Salinas, 2015 WL 4757618, at *13. Prior to February 27, 2015, "the WTPA entitled employees to recover statutory damages for wage-notice violations of $50 per work week, not to exceed $2,500." Baltierra, 2015 WL 5474093, at *11; accord Inclan, 95 F. Supp. 3d at 501-02; see also 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Lab. Law § 198(1-b).
G. Liquidated Damages Pursuant to the FLSA and NYLL
In addition to allowing recovery for unpaid minimum wages and overtime compensation, the FLSA provides for the recovery of liquidated damages. See 29 U.S.C. § 216(b). Under the statute, a plaintiff is entitled to recover liquidated damages in an amount equal to the amount of unpaid wages and overtime compensation that the plaintiff was improperly denied, unless the employer demonstrates that it acted in good faith and had a reasonable basis for believing that it had not violated the FLSA. See id. (providing that plaintiff-employees who prevail under either Section 206 or 207 of the FLSA are entitled to recover "the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and . . . an additional equal amount as liquidated damages"); see also 29 U.S.C. § 260 (mandating that an employer pay liquidated damages unless the employer demonstrates that he was acting in "good faith" and "had reasonable grounds for believing" that he was not acting in violation of the FLSA); see also Galeana v. Lemongrass on Broadway Corp., 120 F. Supp. 3d 306, 317 (S.D.N.Y. 2014) (adopting report and recommendation).
"As the Second Circuit has observed, 'the employer bears the burden of establishing, by plain and substantial evidence, subjective good faith and objective reasonableness. . . . The burden, under 29 U.S.C. § 260, is a difficult one to meet, however, and double damages are the norm, single damages the exception.'" See Galeana, 120 F. Supp. 3d at 317 (quoting Reich, 121 F.3d at 71 (other internal quotation marks and citations omitted)); Cao, 2010 WL 4159391, at *5; Yu G. Ke, 595 F. Supp. 2d at 261; see also 29 U.S.C. § 260.
The NYLL also provides for the recovery of liquidated damages, see N.Y. Lab. Law § 663(1), and courts within this Circuit had long been split on the question of whether a plaintiff may recover liquidated damages under both the FLSA and the NYLL. See Chowdhury v. Hamza Express Food Corp., No. 15-3142-cv, 2016 WL 7131854, at *1 (2d Cir. Dec. 7, 2016) (summary order) (acknowledging "split among district courts as to whether . . . 'cumulative' or 'stacked' liquidated damages awards are available"). In Chowdhury, the Second Circuit addressed the question, noting that, prior to 2009, the NYLL liquidated damages provision differed markedly from that of the FLSA, as it "entitled employees to liquidated damages only in the amount of twenty-five percent of wages owed, and only if the employee proved that the employer's violation of the statute was 'willful.'" Id. After being amended in 2009 and again in 2010, though, "the NYLL now mirrors the FLSA," entitling "employees to 'liquidated damages equal to one hundred percent of the total amount of the wages found to be due,' unless the employer 'proves a good faith basis to believe that its underpayment of wages was in compliance with the law.'" Id. (quoting N.Y. Lab. Law § 198(1-a); citing id. § 663(1).) The Second Circuit found that, "whatever reasons existed to award liquidated damages under the relevant provision of both [statutes] before 2010, . . . the subsequent amendments to the NYLL provision . . . eliminated those reasons," as "double recovery is generally disfavored where another source of damages already remedies the same injury for the same purpose." Id. at *2. Accordingly, the Second Circuit held that "New York's law does not call for an award of . . . liquidated damages over and above a like award of FLSA liquidated damages." Id. at *1.
Subsequent to the Second Circuit's decision in Chowdhury, courts in this District have declined to award cumulative liquidated damages for unpaid wages on or after April 9, 2011, the effective date of the second amendment to the NYLL, which increased the amount of available liquidated damages from 25 percent of unpaid wages to 100 percent. See Granados v. Traffic Bar & Rest., No. 13cv0500 (TPG) (JCF), 2016 WL 7410725, at *5 (S.D.N.Y. Dec. 21, 2016) (report and recommendation) ("As I read Chowdhury, it was the confluence of the two . . . amendments to the NYLL that brought it sufficiently 'in line' with the FLSA to prohibit 'stacked' liquidated damages. Therefore, 'stacked' liquidated damages are available for unpaid wages earned prior to April 9, 2011."); see also Garcia-Devargas v. Maino, No. 15cv2285 (GBD) (JLC), 2017 WL 129123, at *9 n.10 (S.D.N.Y. Jan. 13, 2017) (report and recommendation). For unpaid wages incurred on or after April 9, 2011, a plaintiff will not be permitted a cumulative recovery, but rather, may recover "under the statute that provides the greatest relief." Castillo v. RV Transp., Inc., No. 15cv0527 (LGS), 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016) (modifying report and recommendation); see also Morales v. Mw Bronx, Inc., No. 15cv6296 (TPG), 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016) (courts awarding damages under only one statute "apply whichever . . . statute results in the higher award for the plaintiff" (collecting cases)).
H. Prejudgment Interest
Generally, "[t]he decision to award prejudgment interest is discretionary, and is based on the need to fully compensate the wronged party, [the] fairness of the award, and the remedial purpose of the statute involved." Najnin v. Dollar Mountain, Inc., No. 14cv5728, 2015 WL 6125436, at *3 (S.D.N.Y. Sept. 25, 2015) (citation omitted). A plaintiff who recovers liquidated damages under the FLSA, however, is not also entitled to prejudgment interest on his or her FLSA damages. See, e.g., Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 48 (E.D.N.Y. 2015) ("'It is well settled that in an action for violations of the [FLSA] prejudgment interest may not be awarded in addition to liquidated damages.'" (quoting Begum v. Ariba Disc., Inc., No. 12cv6620 (DLC) (KNF), 2015 WL 223780, at *3 (S.D.N.Y. Jan. 16, 2015))). Given that FLSA liquidated damages serve a compensatory, rather than punitive, purpose, "there is no need to employ pre-judgment interest to restore Plaintiffs to a position they would have otherwise enjoyed absent the wage-protection violation." Id. Thus, in an action where both FLSA and NYLL claims are brought, "courts do not award statutory prejudgment interest on any portion of the recovery for which liquidated damages were awarded under the FLSA." Andrade v. 168 First Ave. Rest. Ltd., No. 14cv8268 (JPO) (AJP), 2016 WL 3141567, at *9 n.7 (S.D.N.Y. June 3, 2016), report and recommendation adopted, 2016 WL 3948101 (July 19, 2016).
Although the NYLL's liquidated damages provision has been brought into conformity with the FLSA provision, such that courts have "held that liquidated damages under the NYLL no longer are clearly punitive," either, "a separate basis [now] applies for the award of prejudgment interest alongside a liquidated damages award" under the NYLL, namely, an express provision, added to the NYLL in 2011, "for a plaintiff to receive both types of awards." Hernandez v. Jrpac Inc., No. 14cv4176 (PAE), 2016 WL 3248493, at *35 (S.D.N.Y. June 9, 2016) (citing N.Y. Lab. Law § 198(1-a)); see also Castillo, 2016 WL 1417848, at *3. Under the state law, "[p]rejudgment interest is calculated . . . on the unpaid wages due under the NYLL, not on the liquidated damages awarded under the state law." Mejia v. East Manor USA Inc., No. 10cv4313 (NG), 2013 WL 3023505, at *8 n.11 (E.D.N.Y. Apr. 19, 2013) (citation omitted), report and recommendation adopted, 2013 WL 2152176 (May 17, 2013).
"Pursuant to [New York] state law, a successful plaintiff may receive prejudgment interest at a rate of nine percent per year." Najnin, 2015 WL 6125436, at *4; see also N.Y.C.P.L.R. §§ 5001, 5004. As to the date from which interest should be found to run, "Section 5001(b) sets forth two methods of calculating prejudgment interest." Alvarez v. 215 N. Ave. Corp., No. 13cv049 (NSR) (PED), 2015 WL 3855285, at *3 (S.D.N.Y. June 19, 2015) (adopting report and recommendation).
First, interest may be calculated from 'the earliest ascertainable date the cause of action existed,' N.Y. C.P.L.R. § 5001(b). However, '[w]here . . . damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.'Id. (citation omitted). It is within the Court's "'wide discretion'" to "'determin[e] a reasonable date from which to award prejudgment interest.'" Id. (quoting Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994)).
I. Joint and Several Liability of "Employers" Under the FLSA and NYLL
The FLSA imposes liability on "employers," a group that is "broadly define[d] [to include] 'any person acting directly or indirectly in the interest of an employer in relation to an employee.'" Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342-43 (S.D.N.Y. 2005) (quoting 29 U.S.C. § 203(d)). "The definition of 'employer' is similarly expansive under New York law, encompassing any 'person employing any [employee].'" Id. (quoting N.Y. Lab. Law §§ 2(6)). To determine whether a party qualifies as an "employer" under both statutes' "generous definitions," the relevant inquiry is "'whether the alleged employer possessed the power to control the workers in question, . . . with an eye to the economic reality presented by the facts of each case.'" Id. (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)).
"[W]hen examining the 'economic reality' of a particular situation," courts will evaluate various factors, none of which, individually, is dispositive. Id. These factors include "'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'" Id. (quoting Herman, 172 F.3d at 139). Further, "'[t]he overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, [and is therefore] jointly and severally liable under the FLSA for unpaid wages.'" Id. (quoting Moon v. Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002), and finding defendants jointly and severally liable under both the FLSA and the NYLL).
J. Attorneys' Fees and Costs
"Under both the FLSA and the NYLL, a prevailing plaintiff may recover [his or] her reasonable attorney's fees and costs." Najnin, 2015 WL 6125436, at *4; see 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(1-a). The Court has discretion to determine the amount of attorneys' fees that would be appropriate to satisfy a fee award. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). As a general matter, the "starting point" in analyzing whether claimed attorneys' fees are appropriate is "the lodestar - the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (lodestar calculation creates a "presumptively reasonable fee" (internal quotation marks omitted; citing Arbor Hill, 522 F.3d at 183, and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010))). The party seeking fees bears the burden of demonstrating that its requested fees are reasonable, see Blum v. Stenson, 465 U.S. 886, 897 (1984), and must provide the Court with sufficient information to assess the fee application, N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983).
An attorney's hourly rate is considered reasonable when it is "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895 n.11. Although the fee applicant has the burden of demonstrating prevailing market rates for comparable work, see Broome v. Biondi, 17 F. Supp. 2d 230, 237 (S.D.N.Y. 1997), the Court may also apply its "own knowledge" of rates charged in the community in assessing the reasonableness of the rates sought, Miele v. N.Y. State Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987). In Arbor Hill, the Second Circuit emphasized that the "reasonable hourly rate is the rate a paying client would be willing to pay." Arbor Hill, 522 F.3d at 190. In assessing whether an hourly rate is reasonable, the Court should "bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Id. When an attorney's requested hourly rate is higher than rates found to be reasonable in the relevant market, it is within the Court's discretion to reduce the requested rate. See Savino v. Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998).
Where the requested amount of fees is excessive because the number of stated hours is greater than that which should have been required for the work produced, the Court should reduce the stated hours accordingly. See Seitzman v. Sun Life Assurance Co. of Canada, 311 F.3d 477, 487 (2d Cir. 2002) (the time component should not reflect excessive hours). In determining whether an excessive amount of time was expended on the matter, the Court may consider, inter alia, the nature and quality of the work submitted by counsel in connection with the litigation, see Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987), as well as "the straightforward nature of the work performed [and] the relative simplicity of the issues involved," see Castellanos v. Mid Bronx Cmty. Hous. Mgmt. Corp., No. 13cv3061 (JGK), 2014 WL 2624759, at *6 (S.D.N.Y. June 10, 2014) (citations and internal quotations omitted).
In addition to the lodestar amount, attorneys' fees may include "'those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (citation omitted). These expenses, or "costs," may include photocopying, travel, telephone costs, and postage, Kuzma v. Internal Revenue Serv., 821 F.2d 930, 933-34 (2d Cir. 1987), as well as filing fees and reasonable process server fees, Rosendo v. Everbrighten Inc., No. 13cv7256 (JGK) (FM), 2015 WL 1600057, at *9 (S.D.N.Y. Apr. 7, 2015), report and recommendation adopted, 2015 WL 4557147 (July 28, 2015).
II. PLAINTIFFS' MOTION FOR A DEFAULT JUDGMENT
By their motion, Plaintiffs seek to hold Defendants jointly and severally liable to them for violating the FLSA and NYLL, and request the entry of a default judgment against Defendants in the amount of $1,141,983.16, plus prejudgment interest, to be calculated through the date judgment is entered. (Androphy Decl. ¶ 17.) Plaintiffs also seek to recover $20,595.00 in attorneys' fees and $1,364.60 in costs, jointly and severally from Defendants. (Id.)
A. Liability Under the FLSA and NYLL
Although the Clerk of Court has entered the defaults of both Defendants, this Court is still required to determine whether Plaintiffs' allegations are sufficient to establish Defendants' liability as a matter of law. See Mickalis Pawn Shop, 645 F.3d at 137. Upon a review of the Complaint, and taking Plaintiffs' well-pleaded allegations as true in light of Defendants' default, see id., this Court finds that Plaintiffs have sufficiently pleaded that Defendants were their employers, and failed to pay them the minimum-wage and overtime compensation required by the FLSA and the NYLL, in violation of both of those statutes.
First, Plaintiffs have sufficiently pleaded that Defendants were their "employers," alleging that Defendants "own, operate, or control" the two restaurants at which Plaintiffs worked; that defendant Karalexis had operational control and/or an ownership interest in the Corporate Defendant and controlled Plaintiffs' work conditions; that Defendants' gross annual sales volume exceeded $500,000; and that Defendants engaged in interstate commerce. (Compl. ¶¶ 2, 25, 28-29, 36, 41-42; see also, e.g., Banasiewicz v. Olympia Mech. Piping & Heating Corp., No. 10cv369 (SJ), 2012 WL 4472033, at *4 (E.D.N.Y. Aug. 31, 2012) (finding similar allegations sufficient to establish that defendants were "employers"), report and recommendation adopted, 2012 WL 4473074 (Sept. 26, 2012).) Such allegations are also sufficient to establish Defendants' joint and several liability. See Zhang v. Red Mtn. Noodle House Inc., No. 15cv628 (SJ) (RER), 2016 WL 4124304, at *1 (E.D.N.Y. July 5, 2016), report and recommendation adopted, 2016 WL 4099090 (Aug. 2, 2016).
Second, by setting forth, for each Plaintiff, his approximate hours and pay rate(s), Plaintiffs have sufficiently pleaded that each worked in excess of 40 hours a week without overtime compensation, was not paid the applicable minimum wage, or both. (See, e.g., Compl. ¶¶ 93, 95-98 (alleging that plaintiff Miculax worked from 10:00 a.m. to 10:30 p.m., Tuesday through Sunday, for a total of approximately 75 hours per week, and that he was paid a salary, regardless of hours worked, that did not exceed $270 per week); see also, e.g., Banasiewicz, 2012 WL 4472033, at *4 (finding similar allegations sufficient to establish overtime and minimum-wage violations).)
Further, Plaintiffs have adequately pleaded that Defendants are liable to them for statutory wage-notice and wage-statement violations. (See, e.g., Compl. ¶¶ 62-65 (alleging that Defendants never provided plaintiff Flores with any wage statement or any statement otherwise accounting for his hours worked or his rate of pay, and never provided Flores with any wage notice regarding his rate of pay or other statutorily required information); see also, e.g., Morales, 2016 WL 4084159, at *7 ("Since all plaintiffs have . . . alleged without opposition that they were deprived of a wage notice . . ., regular wage statements, and annual wage notices, defendants are liable for those violations.").) Plaintiffs have also adequately pleaded that Defendants failed to pay the "spread of hours" pay required by New York State law. (See Compl. ¶ 6 (Defendants failed to pay "'spread of hours' pay for any day in which they had to work over 10 hours"); see also, e.g., Cardozo v. Mango King Farmers Mkt. Corp., No. 14cv3314 (SJ) (RER), 2015 WL 5561033, at *5 (E.D.N.Y. Sept. 1, 2015) (finding similar allegation sufficient to establish NYLL "spread of hours" violation), report and recommendation adopted, 2015 WL 5561180 (Sept. 21, 2015).
Accordingly, this Court will proceed to assess damages for each of the Plaintiffs.
B. Plaintiffs' Individual Damages Claims
As a threshold matter, this Court finds that Plaintiffs' submissions are sufficient to meet their burden of proof to establish, to a reasonable certainty, their minimum wage, overtime, spread-of-hours, and statutory damages, such that a hearing here is not required. See Fustok, 873 F.2d at 40 (noting that the district court has the discretion to determine whether a hearing is necessary). As noted above, in the context of a default, where defendants have neither provided any employment records, nor otherwise rebutted plaintiffs' damages claims, it is sufficient for plaintiffs to rely on their "recollection alone" to establish the hours they worked and the rates they should have been paid. Santillan, 822 F. Supp. 2d at 294 (internal quotation marks and citations omitted). In this case, the well-pleaded factual allegations set out in the Complaint, which are accepted as true for purposes of Plaintiff's motion, set out Plaintiffs' recollections regarding the hours they worked and the rates of pay they earned. (Compl. ¶¶ 51-57, 74-78, 93-97, 114-20, 136-41, 159-61, 179-83.) This Court finds that these allegations, together with the computations that Plaintiffs have provided in their submissions, are enough to enable the Court to assess damages.
As noted above, four of the seven Plaintiffs have also submitted Declarations, reiterating the pleaded allegations regarding their hours and pay (see Dkts. 64-67), although the well-pleaded allegations of the Complaint, standing alone, are sufficient to establish these facts, which form the basis for Defendants' liability.
This Court further finds that, by virtue of their default, Defendants may be considered willful violators of the FLSA, thereby entitling Plaintiffs to the benefit of a three-year (rather than a two-year) statute of limitations period on their FLSA claims. See Santillan, 822 F. Supp. 2d at 297. As for their claims under the NYLL, Plaintiffs are entitled to a six-year statute of limitations period.
1. Plaintiff Flores
Flores asserts that he was employed by Defendants from approximately 2006 to approximately April 2014. (Flores Decl. ¶ 4; see also Compl. ¶ 45.) He does not state the hours that he worked during the period from 2006 to February 2008, but this is irrelevant, as that period would, in any event, fall outside even the six-year statute of limitations for NYLL claims.
The Complaint was filed in March 2014, and the allegation contained therein with respect to Flores's employment was that he was employed by Defendants "until the present date." (Compl. ¶ 45.) In his later Declaration, Flores then states that he continued to be employed by Defendants until "on or about April 2014." (Flores Decl. ¶ 4.) Ordinarily, upon a defendant's default, this Court would be constrained to recommend that the plaintiff not receive any damages extending past the date of the Complaint. See, e.g., N.Y.C. Dist. Council of Carpenters Pension Fund v. Quantum Const.; No. 06cv13150 (GEL) (JCF), 2008 WL 5159777, at *4, *11 (S.D.N.Y. Dec. 9, 2008); see also Fed. R. Civ. P. 54(c) (stating that damages awarded upon a default "must not . . . exceed in amount[] what is demanded in the pleadings"). The limitation of Rule 54(c), however, turns on the defendant's receipt of adequate notice of the scope of damages, Silge v. Merz, 510 F.3d 157, 161 (2d Cir. 2007), and, here, sufficient notice is provided that Flores's employment (and attendant damages) continued until approximately the date of the Complaint. See Chuchuca v. Creative Customs Cabinets Inc., No. 13cv2506 (RLM), 2014 WL 6674583, at *9 n.8 (E.D.N.Y. Nov. 25, 2014) (permitting recovery of wages for work completed until May 31, 2012, where complaint alleged that plaintiff worked for defendants until March 15, 2012, as the latter date was "an approximation[,] and only a few months shy of the [actual] end date"). Accordingly, this Court recommends that Flores, as well as Plaintiff Ramirez, who makes an identical allegation and statement (see Compl. ¶ 130; Ramirez Decl. ¶ 4), be permitted recovery for their damages accrued through April 2014. In contrast, although the damages chart submitted by Plaintiffs' counsel in connection with the default motion appears to seek damages beyond the filing date of the Complaint for plaintiffs who have not submitted declarations (specifically, for Mastranzo and Mendez), this Court has no basis for recommending damages for those plaintiffs, beyond what is pleaded.
He asserts that, from approximately February 2008 to approximately September 2010, he worked about 12.5 hours per day (from about 10:00 a.m. to 10:30 p.m.), six days per week, for an estimated 75 hours per week, and that, from approximately September 2010 to approximately April 2014, he worked about 12 hours per day (from about 8:00 a.m. to 8:00 p.m.), six days per week, for an estimated 72 hours per week. (Flores Decl. ¶¶ 9, 10; Compl. ¶¶ 51, 52.) Again stating that all dates are approximate, he estimates that, from about February 2008 to about January 2010, he was paid $150 per week; that, from about January 2010 to about September 2010, he was paid $300 per week; that, from about September 2010 to about February 2014, he was paid $450 per week; and that, from about February 2014 to about April 2014, he was paid $500 per week. (Flores Decl. ¶¶ 12-15; Compl. ¶¶ 54-57.) He asserts, like each of the other Plaintiffs, that he was paid in cash, and received no statements of his wages or hours. (Flores Decl. ¶ 16; Compl. ¶ 53, ¶¶ 62-65; see also Miculax Decl. ¶ 14; Baquiax Decl. ¶ 16; Ramirez Decl. ¶ 15; Compl. ¶¶ 76, 83-86, 94, 104-07, 116, 126-29, 138, 149-52, 160, 169-72, 182, 189-92.)
In calculating the amount of damages to which Flores (or any other Plaintiff) is entitled for unpaid minimum-wage and overtime pay, a number of dates become relevant, and thus it is necessary to break each Plaintiff's employment into a number of different periods. First (before calculating any spread-of-hours damages or liquidated damages), it is necessary to examine, separately, each period for which there were any changes in (a) each Plaintiff's weekly hours, (b) his weekly wages, (c) the state minimum wage, and the method to be used in calculating his base pay rate. On this last point, for work completed prior to January 1, 2011, the NYLL base pay rate is calculated by dividing a plaintiff's weekly pay by the total number of hours worked, per week. See 12 NYCRR § 137-3.5 (2009). Beginning with work completed on January 1, 2011, the NYLL base pay rate is calculated by "dividing the employee's total weekly earnings, . . . by the lesser of 40 hours or the actual number of hours worked . . . during the work week." 12 NYCRR § 146-3.5 (2011). Second, given the approximate nature of the dates set out by Flores and the other Plaintiffs in the Complaint and Declarations, it is necessary for the Court to estimate start and end dates of many of the relevant periods. As a reasonable convention, wherever Flores (or any other Plaintiff) describes a period as commencing "in or about" a particular month, this Court will measure that period from the 15th day of the month in question.
For each of the Plaintiffs, the New York State minimum wage was, during all relevant times, the same or higher than the federal minimum wage of $7.25, and thus this Court will calculate Plaintiffs' damages based on the NYLL.
This Court notes that, in the damages chart submitted with their default motion, Plaintiffs, for no explained reason, sometimes adopt a similar convention, but other times do not, instead measuring certain periods from the beginning of the month at issue, or even picking a date (such as for the end of Flores's employment) that is neither the beginning of the month, nor mid-month. In this Court's view, a standardized protocol for estimating the start and end dates of the periods necessary to perform a damages calculation is far preferable to a protocol that varies without explanation.
The relevant periods and damages calculations for Flores's unpaid minimum wages and overtime pay are as follows:
| Flores - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL | ||||||||
| 3/7/08 | 7/23/09 | 72 | 75 | $150/wk | $7.15/hr | $2.00/hr(150 ÷ 75) | $47,628.00($7.15 x 40+ $10.73 x 35x 72 wks) | $36,828.00 |
| 7/24/09 | 1/14/10 | 25 | 75 | $150/wk | $7.25/hr | $2.00/hr(150 ÷ 75) | $16,770.00($7.25 x 40+ $10.88 x 35x 25 wks) | $13,020.00 |
| 1/15/10 | 9/14/10 | 34.86 | 75 | $300/wk | $7.25/hr | $4.00/hr(300 ÷ 75) | $23,384.09($7.25 x 40+ $10.88 x 35x 34.86 wks) | $12,926.10 |
| 9/15/10 | 12/31/10 | 15.43 | 72 | $450/wk | $7.25/hr | $6.25/hr(450 ÷ 72) | $9,846.81($7.25 x 40+ $10.88 x 32x 15.43 wks) | $2,903.31 |
| 1/1/11 | 3/6/11 | 9.43 | 72 | $450/wk | $7.25/hr | $11.25/hr(450 ÷ 40) | $9,337.29($11.25 x 40+ $16.88 x 32x 9.43 wks) | $1,774.35 |
| Period Covered by NYLL and FLSA | ||||||||
| 3/7/11 | 4/8/11 | 4.57 | 72 | $450/wk | $7.25/hr | $11.25/hr(450 ÷ 40) | $4,525.03($11.25 x 40+ $16.88 x 32x 4.57 wks) | $2,468.53 |
| 12/30/13 | 142 | 72 | $450/wk | $7.25/hr | $11.25/hr(450 ÷ 40) | $140,602.72($11.25 x 40+ $16.88 x 32x 142 wks) | $76,702.72 | |
| 12/31/13 | 2/14/14 | 6.57 | 72 | $450/wk | $8.00/hr | $11.25/hr(450 ÷ 40) | $6,505.35($11.25 x 40+ $16.88 x 32x 6.57 wks) | $3,548.85 |
| 2/15/14 | 4/14/14 | 8.43 | 72 | $500/wk | $8.00/hr | $12.50/hr(500 ÷ 40) | $9,273.00($12.50 x 40+ $18.75 x 32x 8.43 wks) | $5,058.00 |
| Total:$155,229.86 |
As noted above, the NYLL was amended, effective April 9, 2011, to increase the amount of available liquidated damages from 25% to 100% of unpaid minimum wages, overtime pay, and spread-of-hours pay. This date therefore becomes significant in calculating liquidated damages, as set out infra.
A number of dates are also relevant in calculating the amount of liquidated damages to which Flores (or any other Plaintiff) is entitled, in connection with unpaid minimum-wage and overtime damages. First, due to the three-year statute of limitations applicable to Plaintiffs' FLSA claims, liquidated damages are available solely under the NYLL for work completed prior to March 7, 2011. Second, liquidated damages may be awarded under both the NYLL and the FLSA for work completed from March 7 to April 8, 2011. Third, liquidated damages are available under only one of the two statutes for work completed on April 9, 2011 or later. On that date, an amendment to the NYLL went into effect, increasing the available liquidated damages from 25% to 100% of unpaid minimum wages and overtime pay, and bringing the NYLL liquidated damages provision into conformity with the FLSA liquidated damages provision, such that a cumulative recovery is impermissible. (See Discussion, supra, at Section I(G).) Accordingly, this Court may only recommend an award of liquidated damages, for work completed on April 9, 2011 or later, under the statute which provides the greatest relief - here, the NYLL.
The relevant periods and damages calculations for Flores's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Flores - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | StackedLiq. DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 3/7/08 | 3/6/11 | 25% | N/A | N/A | $67,451.76 | $16,862.94 |
| 3/7/11 | 4/8/11 | 25% | 100% | Yes | $2,468.53 | $3,085.63 |
| 4/9/11 | 4/14/14 | 100% | 100% | No | $85,309.57 | $85,309.57 |
| Total:$105,258.14 |
Flores and the other Plaintiffs also seek statutory damages for violations of the NYLL's wage-statement and wage-notice requirements (Pl. Mem., at 14), although Plaintiffs do not break out calculations for such damages in their submitted damages chart. Thus, it is necessary for the Court to calculate the statutory damages available to Flores and the remaining Plaintiffs. For work completed after April 9, 2011, each Plaintiff is entitled to $100.00 per work week, not to exceed $2,500.00, for each week in which Defendants failed to furnish him with a wage statement, as well as $50.00 per work week, not to exceed $2,500.00, for each work week in which Defendants failed to furnish him with a wage notice. (See Discussion, supra, at Section I(F).) In other words, any Plaintiff who worked for 50 or more weeks after April 9, 2011 is entitled to total of $5,000.00 in capped statutory damages. As set forth above in calculating Flores's unpaid minimum-wage and overtime pay, Flores worked in excess of 50 weeks during the relevant time period, and, accordingly, is entitled to $5,000.00 in statutory damages.
Next, in calculating the spread-of-hours damages to which Flores (or any other Plaintiff) is entitled under the NYLL, it is necessary to examine, separately, each period for which there were any changes in (a) the number of days each week that the Plaintiff worked more than 10 hours, and (b) the state minimum wage. The relevant periods and damages calculations for Flores's spread-of-hours pay are as follows:
| Flores - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 3/7/08 | 7/23/09 | 504 | 6 | $7.15/hr | $7.15 x 504 days x (6/7) | $3,088.80 |
| 7/24/09 | 4/8/11 | 624 | 6 | $7.25/hr | $7.25 x 624 days x (6/7) | $3,877.71 |
| 4/9/11 | 12/30/13 | 996 | 6 | $7.25/hr | $7.25 x 996 days x (6/7) | $6,189.43 |
| 12/31/13 | 4/14/14 | 105 | 6 | $8.00/hr | $8.00 x 105 days x (6/7) | $720.00 |
| Total:$13,875.94 |
The relevant periods and damages calculations for Flores's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Flores - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 3/7/08 | 4/8/11 | 25% | $6,966.51 | $1,741.63 |
| 4/9/11 | 4/14/14 | 100% | $6,909.43 | $6,909.43 |
| Total: $8,651.06 |
Flores and the other Plaintiffs may also receive prejudgment interest, as calculated under the NYLL, on their minimum-wage and overtime damages, for all employment periods excluding March 7 through April 8, 2011, i.e., the only time period in which this Court recommends an award of liquidated damages under the FLSA. (See Discussion, supra, at Section I(H).) Additionally, Flores and the other Plaintiffs may receive prejudgment interest on their spread-of-hours damages. Although Plaintiffs are seeking prejudgment interest, and represent that prejudgment interest calculations are included in the damages chart submitted with their default motion (see Androphy Decl. ¶ 16(f)), no such calculations in fact appear. Thus, it is necessary for the Court to calculate the prejudgment interest that each Plaintiff may be awarded.
As discussed above (see Discussion, supra, at Section I(H)), under the NYLL, prejudgment interest is awarded at a rate of nine percent per annum, and may be calculated, in the Court's discretion, from an intermediate date, where damages were incurred at various times. As Plaintiffs' damages accrued somewhat variably due to, inter alia, variations in the applicable minimum wage and Plaintiffs' work schedules, this Court will calculate prejudgment interest separately for each of the time periods used to calculate each Plaintiff's underlying unpaid minimum-wage, overtime, and spread-of-hours pay. Cf. Said v. SBS Elecs., Inc., No. 08cv3067 (RJD) (JO), 2010 WL 1265186, at *9 (E.D.N.Y. Feb. 24, 2010) (calculating interest on entire employment period, as "the amounts owed accrued at an essentially regular rate"), report and recommendation adopted as modified on other grounds, 2010 WL 1287080 (Mar. 31, 2010). Further, this Court will calculate interest up to the date of Plaintiffs' motion, or August 19, 2016. As Plaintiffs would be entitled to prejudgment interest up to the date of judgment, however, I recommend that additional prejudgment interest be awarded to each Plaintiff at the rate of nine percent per annum, to be calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
The relevant periods and calculations for prejudgment interest on Flores's minimum-wage and overtime damages are as follows:
The time in years, for this calculation, is calculated by dividing the total number of days from the relevant median date to the date of Plaintiff's motion by 365 days per year.
Finally, the relevant periods and calculations for prejudgment interest on Flores's spread-of-hours damages are as follows:
| Flores - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 3/7/08 | 7/23/09 | 11/3/08 | $3,088.80 | $3,088.80 x .09 x (2,847/365) | $2,168.34 |
| 7/24/09 | 4/8/11 | 5/31/10 | $3,877.71 | $3,877.71 x .09 x (2,273/365) | $2,173.82 |
| 4/9/11 | 12/30/13 | 8/19/12 | $6,189.43 | $6,189.43 x .09 x (1,462/365) | $2,231.25 |
| 12/31/13 | 4/14/14 | 2/20/14 | $720.00 | $720.00 x .09 x (912/365) | $161.91 |
| Total:$6,735.32 |
In total, this Court recommends that Flores be awarded $288,015.00 in damages (representing $169,105.80 in unpaid minimum-wage, overtime, and spread-of-hours pay; $113,909.20 in liquidated damages; and $5,000.00 in statutory damages), plus $79,878.22 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
2. Plaintiff Mastranzo
Plaintiff Mastranzo has not submitted a declaration in connection with the default motion, but his alleged hours and wages are set out in the Complaint. In the Complaint, he alleges that he was employed by Defendants from approximately September 15, 2013 until the date of the Complaint (which was filed March 7, 2014). (Compl. ¶ 68.) He further alleges that, from approximately September 2013 to approximately January 2014, he worked about 12.5 hours per day (from about 10:00 a.m. to 10:30 p.m.), six days per week, for an estimated 75 hours per week, and that, from approximately January 2014 to the date of the Complaint, he worked about 14 hours per day (from about 10:00 a.m. to 12:00 a.m.), six days per week, for an estimated 84 hours per week. (Id. ¶¶ 74, 75.) He estimates that, from about September 2013 to about January 2014, he was paid $250 per week; and that, from about January 2014 to the date of the Complaint, he was paid $300 per week. (Id. ¶¶ 77, 78.)
The relevant periods and damages calculations for Mastranzo's unpaid minimum wages and overtime are thus as follows:
| Mastranzo - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL and FLSA | ||||||||
| 9/15/13 | 12/30/13 | 15.26 | 75 | $250/wk | $7.25/hr | $6.25/hr(250 ÷ 40) | $10,236.41($7.25 x 40+ $10.88 x 35x 15.26 wks) | $6,421.41 |
| 12/31/13 | 1/14/14 | 2.14 | 75 | $250/wk | $8.00/hr | $6.25/hr(250 ÷ 40) | $1,583.00($8.00 x 40+ $12.00 x 35x 2.14 wks) | $1,048.60 |
| 1/15/14 | 3/7/14 | 7.43 | 84 | $300/wk | $8.00/hr | $7.50/hr(300 ÷ 40) | $6,300.64($8.00 x 40+ $12.00 x 44x 7.43 wks) | $4,071.34 |
| Total:$11,541.35 |
The relevant period and damages calculation for Mastranzo's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Mastranzo - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | Stacked Liq.DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 9/15/13 | 3/7/2014 | 100% | 100% | No | $11,541.35 | $11,541.35 |
With respect to Mastranzo's claims for wage-statement and wage-notice damages, Mastranzo's entire length of employment, as set out above, fell after April 9, 2011 (and thus during the period for which such damages are available), and he worked for approximately 25 weeks. Accordingly, on these claims, Mastranzo is entitled to $2,500.00 in statutory damages for wage-statement violations (25 wks x $100.00), and $1,250.00 for wage-notice violations (25 wks x $50.00), for a total of $3,750.00 in such damages.
Next, the relevant periods and damages calculations for Mastranzo's spread-of-hours pay are as follows:
| Mastranzo - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 9/15/13 | 12/30/13 | 107 | 6 | $7.25/hr | $7.25 x 107 days x (6/7) | $664.93 |
| 12/31/13 | 3/7/14 | 67 | 6 | $8.00/hr | $8.00 x 67 days x (6/7) | $459.43 |
| Total: $1,124.36 |
The relevant period and damages calculation for Mastranzo's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Mastranzo - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 9/15/13 | 3/7/14 | 100% | $1,124.36 | $1,124.36 |
The relevant periods and calculations for prejudgment interest on Mastranzo's minimum-wage and overtime damages are as follows:
| Mastranzo - Prejudgment Interest on Unpaid Minimum Wages and Overtime Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime Damages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 9/15/13 | 12/30/13 | 11/6/13 | $6,421.41 | $6,421.41 x .09 x (1018/365) | $1,611.86 |
| 12/31/13 | 1/14/14 | 1/7/14 | $1,048.60 | $1,048.60 x .09 x (956/365) | $247.18 |
| 1/15/14 | 3/7/14 | 2/9/14 | $4,071.34 | $4,071.34 x .09 x (923/365) | $926.59 |
| Total:$2,785.63 |
Finally, the relevant period and calculation for prejudgment interest on Mastranzo's spread-of-hours damages are as follows:
| Mastranzo - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | IInterest Owed |
| 9/15/13 | 12/30/13 | 11/6/13 | $664.93 | $664.93 x .09 x (1018/365) | $166.91 |
| 12/31/13 | 3/7/14 | 2/2/14 | $459.43 | $459.43 x .09 x (923/365) | $104.56 |
| Total: $271.47 |
In total, this Court recommends that Mastranzo be awarded $29,081.41 in damages (representing $12,665.71 in unpaid minimum-wage, overtime, and spread-of-hours pay; $12,665.71 in liquidated damages; and $3,750.00 in statutory damages), plus $3,057.10 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
3. Plaintiff Miculax
Plaintiff Miculax has submitted a Declaration that tracks the allegations contained in the Complaint with respect to his hours and wages. He asserts that he was employed by Defendants from approximately June 2009 to approximately November 2012. (Miculax Decl. ¶ 4; Compl. ¶ 88.) He further asserts that, for the entire period of his employment, he worked about 12.5 hours per day (from about 10:00 a.m. to 10:30 p.m.), six days per week, for an estimated 75 hours per week. (Miculax Decl. ¶ 9; Compl. ¶ 93.) He estimates that, from about June 2009 to about June 2010, he was paid $200 per week; that, from about June 2010 to about June 2012, he was paid $220 per week; and that, from about June 2012 to about November 2012, he was paid $270 per week. (Miculax Decl. ¶¶ 11-13; Compl. ¶¶ 95-97.)
The relevant periods and damages calculations for Miculax's unpaid minimum wages and overtime are thus as follows:
| Miculax - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL | ||||||||
| 6/15/09 | 7/23/09 | 5.57 | 75 | $200/wk | $7.15/hr | $2.67/hr(200 ÷ 75) | $3,572.37($7.15 x 40+ $10.73 x 35x 5.57 wks) | $2,458.37 |
| 7/24/09 | 6/14/10 | 50.86 | 75 | $200/wk | $7.25/hr | $2.67/hr(200 ÷ 75) | $34,116.89($7.25 x 40+ $10.88 x 35x 50.86 wks) | $23,944.89 |
| 6/15/10 | 12/31/10 | 28.57 | 75 | $220/wk | $7.25/hr | $2.93/hr(220 ÷ 75) | $19,164.76($7.25 x 40+ $10.88 x 35x 28.57 wks) | $12,879.36 |
| 1/1/11 | 3/6/11 | 9.26 | 75 | $220/wk | $7.25/hr | $5.50/hr(220 ÷ 40) | $6,211.61($7.25 x 40+ $10.88 x 35x 9.26 wks) | $4,174.41 |
| Period Covered by NYLL and FLSA | ||||||||
| 3/7/11 | 4/8/11 | 4.71 | 75 | $220/wk | $7.25/hr | $5.50/hr(220 ÷ 40) | $3,159.47($7.25 x 40+ $10.88 x 35x 4.71 wks) | $2,123.27 |
| 4/9/11 | 6/14/12 | 61.71 | 75 | $220/wk | $7.25/hr | $5.50/hr(220 ÷ 40) | $41,395.07($7.25 x 40+ $10.88 x 35x 61.71 wks) | $27,818.87 |
| 6/15/12 | 11/14/12 | 21.86 | 75 | $270/wk | $7.25/hr | $6.75/hr(270 ÷ 40) | $14,663.69($7.25 x 40+ $10.88 x 35x 21.86 wks) | $8,761.49 |
| Total:$82,160.66 |
The relevant periods and damages calculations for Miculax's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Miculax - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | StackedLiq. DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 6/15/09 | 3/6/11 | 25% | N/A | N/A | $43,457.03 | $10,864.26 |
| 3/7/11 | 4/8/11 | 25% | 100% | Yes | $2,123.27 | $2,654.09 |
| 4/9/11 | 11/14/12 | 100% | 100% | No | $36,580.36 | $36,580.36 |
| Total:$50,098.71 |
With respect to Miculax's claims for wage-statement and wage-notice damages, Miculax, as set out above, worked substantially in excess of 50 weeks after April 9, 2011, i.e., during the period for which such damages are available. Accordingly, on these claims, Miculax is entitled to capped statutory damages of $5,000.00.
Next, the relevant periods and damages calculations for Miculax's spread-of-hours pay are as follows:
| Miculax - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 6/15/09 | 7/23/09 | 39 | 6 | $7.15/hr | $7.15 x 39 days x (6/7) | $239.01 |
| 7/24/09 | 4/8/11 | 624 | 6 | $7.25/hr | $7.25 x 624 days x (6/7) | $3,877.71 |
| 4/9/11 | 11/14/12 | 585 | 6 | $7.25/hr | $7.25 x 585 days x (6/7) | $3,635.36 |
| Total:$7,749.08 |
The relevant periods and damages calculations for Miculax's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Miculax - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 6/15/09 | 4/8/11 | 25% | $4,116.72 | $1,029.18 |
| 4/9/11 | 11/14/12 | 100% | $3,635.36 | $3,635.36 |
| Total: $4,664.54 |
The relevant periods and calculations for prejudgment interest on Miculax's minimum-wage and overtime damages are as follows:
| Miculax - Prejudgment Interest on Unpaid Minimum Wages and Overtime Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime Damages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 6/15/09 | 7/23/09 | 7/4/09 | $2,458.37 | $2,458.37 x .09 x (2,604/365) | $1,578.48 |
| 7/24/09 | 6/14/10 | 1/2/10 | $23,944.89 | $23,944.89 x .09 x (2,422/365) | $14,329.88 |
| 6/15/10 | 12/31/10 | 9/22/10 | $12,879.36 | $12,879.36 x .09 x (2,159/365) | $6,856.41 |
| 1/1/11 | 3/6/11 | 2/2/11 | $4,174.41 | $4,174.41 x .09 x (2,026/365) | $2,085.38 |
| 4/9/11 | 6/14/12 | 11/10/11 | $27,818.87 | $27,818.87 x .09 x (1,745/365) | $11,969.74 |
| 6/15/12 | 11/14/12 | 8/30/12 | $8,761.49 | $8,761.49 x .09 x (1,451/365) | $3,134.69 |
| Total:$39,954.58 |
Finally, the relevant periods and calculations for prejudgment interest on Miculax's spread-of-hours damages are as follows:
| Miculax - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 6/15/09 | 7/23/09 | 7/4/09 | $3,088.80 | $3,088.80 x .09 x (2,604/365) | $153.46 |
| 7/24/09 | 4/8/11 | 5/31/10 | $3,877.71 | $3,877.71 x .09 x (2,273/365) | $2,173.32 |
| 4/9/11 | 11/14/12 | 1/26/12 | $6,189.43 | $6,189.43 x .09 x (1,668/365) | $1,495.18 |
| Total:$3,821.96 |
In total, this Court recommends that Miculax be awarded $149,672.99 in damages (representing $89,909.74 in unpaid minimum-wage, overtime, and spread-of-hours pay; $54,763.25 in liquidated damages; and $5,000.00 in statutory damages), plus $43,776.54 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
4. Plaintiff Baquiax
Plaintiff Baquiax has also submitted a Declaration, which also tracks the allegations contained in the Complaint with respect to his hours and wages. He asserts that he was employed by Defendants from approximately January 2009 to approximately February 2014. (Baquiax Decl. ¶ 4; Compl. ¶¶ 108, 114.) He further asserts that, from approximately January 2009 to approximately January 2014, he worked about 12.5 hours per day (from about 10:00 a.m. to about 10:30 p.m.), six days per week, for an estimated 75 hours per week; and that, from approximately January 2014 to approximately February 2014, he worked about 14 hours per day (from about 10:00 a.m. to 12:00 a.m.), six days per week, for an estimated 84 hours per week. (Baquiax Decl. ¶¶ 9, 10; Compl. ¶¶ 114, 115.) He estimates that, from about January 2009 to about January 2011, he was paid approximately $200 per week; that, from about January 2011 to about January 2012, he was paid approximately $250 per week; that, from about January 2012 to about January 2013, he was paid approximately $300 per week; and that, from about January 2013 to about February 2014, he was paid approximately $350 per week. (Baquiax Decl. ¶¶ 12-15; Compl. ¶¶ 117-20.) The relevant periods and damages calculations for Baquiax's unpaid minimum wages and overtime are thus as follows:
| Baquiax - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL | ||||||||
| 1/15/09 | 7/23/09 | 27.14 | 75 | $200/wk | $7.15/hr | $2.67/hr(200 ÷ 75) | $17,954.47($7.15 x 40+ $10.73 x 35x 27.14 wks) | $12,526.47 |
| 7/24/09 | 12/31/10 | 75 | 75 | $200/wk | $7.25/hr | $2.67/hr(200 ÷ 75) | $50,310.00($7.25 x 40+ $10.88 x 35x 75 wks) | $35,310.00 |
| 1/1/11 | 1/14/11 | 2 | 75 | $200/wk | $7.25/hr | $5.00/hr(200 ÷ 40) | $1,341.60($7.25 x 40+ $10.88 x 35x 2 wks) | $941.60 |
| 1/15/11 | 3/6/11 | 7.26 | 75 | $250/wk | $7.25/hr | $6.25/hr(250 ÷ 40) | $4,870.01($7.25 x 40+ $10.88 x 35x 7.26 wks) | $3,055.01 |
| Period Covered by NYLL and FLSA | ||||||||
| 3/7/11 | 4/8/11 | 4.71 | 75 | $250/wk | $7.25/hr | $6.25/hr(250 ÷ 40) | $3,159.47($7.25 x 40+ $10.88 x 35x 4.71 wks) | $1,981.97 |
| 4/9/11 | 1/14/12 | 40 | 75 | $250/wk | $7.25/hr | $6.25/hr(250 ÷ 40) | $26,832.00($7.25 x 40+ $10.88 x 35x 40 wks) | $16,832.00 |
| 1/15/12 | 1/14/13 | 52 | 75 | $300/wk | $7.25/hr | $7.50/hr(300 ÷ 40) | $36,075.00($7.50 x 40+ $11.25 x 35x 52 wks) | $20,475.00 |
| 1/15/13 | 12/30/13 | 49.86 | 75 | $350/wk | $7.25/hr | $8.75/hr(350 ÷ 40) | $30,364.16($8.75 x 40+ $13.13 x 35x 49.86 wks) | $22,913.16 |
| 12/31/13 | 1/14/14 | 2.14 | 75 | $350/wk | $8.00/hr | $8.75/hr(350 ÷ 40) | $1,732.44($8.75 x 40+ $13.13 x 35x 2.14 wks) | $983.44 |
| 1/15/14 | 2/14/14 | 4.43 | 84 | $350/wk | $8.00/hr | $8.75/hr(350 ÷ 40) | $4,109.80($8.75 x 40+ $13.13 x 44x 4.43 wks) | $2,559.30 |
| Total:$117,577.95 |
|---|
The relevant periods and damages calculations for Baquiax's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Baquiax - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | Stacked Liq.DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 1/15/09 | 3/6/11 | 25% | N/A | N/A | $51,833.08 | $12,958.27 |
| 3/7/11 | 4/8/11 | 25% | 100% | Yes | $1,981.97 | $2,477.46 |
| 4/9/11 | 2/14/14 | 100% | 100% | No | $63,762.90 | $63,762.90 |
| Total:$79,198.63 |
With respect to Baquiax's claims for wage-statement and wage-notice damages, Baquiax, as set out above, worked substantially in excess of 50 weeks after April 9, 2011, i.e., during the period for which such damages are available. Accordingly, on these claims, Baquiax is entitled to capped statutory damages of $5,000.00.
Next, the relevant periods and damages calculations for Baquiax's spread-of-hours pay are as follows:
| Baquiax - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 1/15/09 | 7/23/09 | 190 | 6 | $7.15/hr | $7.15 x 190 days x (6/7) | $1,164.43 |
| 7/24/09 | 4/8/11 | 624 | 6 | $7.25/hr | $7.25 x 624 days x (6/7) | $3,877.71 |
| 4/9/11 | 12/30/13 | 996 | 6 | $7.25/hr | $7.25 x 996 days x (6/7) | $6,189.43 |
| 12/31/13 | 2/14/14 | 46 | 6 | $8.00/hr | $8.00 x 105 days x (6/7) | $315.43 |
| Total: $11,547.00 |
The relevant periods and damages calculations for Baquiax's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Baquiax - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 1/15/09 | 4/8/11 | 25% | $5,042.14 | $1,260.54 |
| 4/9/11 | 2/14/14 | 100% | $6,504.86 | $6,504.86 |
| Total: $7,765.40 |
The relevant periods and calculations for prejudgment interest on Baquiax's minimum-wage and overtime damages are as follows:
| Baquiax - Prejudgment Interest on Unpaid Minimum Wages and Overtime Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime Damages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 1/15/09 | 7/23/09 | 4/19/09 | $12,526.47 | $12,526.47 x .09 x (2,680/365) | $8,277.77 |
| 7/24/09 | 12/31/10 | 4/12/10 | $35,310.00 | $35,310.00 x .09 x (2,322/365) | $20,216.67 |
| 1/1/11 | 1/14/11 | 1/7/11 | $941.60 | $941.60 x .09 x (2,052/365) | $476.42 |
| 1/15/11 | 3/6/11 | 2/9/11 | $3,055.01 | $3,055.01 x .09 x (2,019/365) | $1,520.89 |
| 4/9/11 | 1/14/12 | 8/27/11 | $16,832.00 | $16,832.00 x .09 x (1,820/365) | $7,553.65 |
| 1/15/12 | 1/14/13 | 7/15/12 | $20,475.00 | $20,475.00 x .09 x (1,497/365) | $7,557.80 |
| 1/15/13 | 12/30/13 | 7/8/13 | $22,913.16 | $22,913.16 x .09 x (1,139/365) | $6,435.15 |
| 12/31/13 | 1/14/14 | 1/7/14 | $983.44 | $983.44 x .09 x (956/365) | $231.82 |
| 1/15/14 | 2/14/14 | 1/30/14 | $2,559.30 | $2,559.30 x .09 x (933/365) | $588.78 |
| Total:$52,858.95 |
Finally, the relevant periods and calculations for prejudgment interest on Baquiax's spread-of-hours damages are as follows:
| Baquiax - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 1/15/09 | 7/23/09 | 4/19/09 | $1,164.43 | $1,164.43 x .09 x (2,680/365) | $769.48 |
| 7/24/09 | 4/8/11 | 5/31/10 | $3,877.71 | $3,877.71 x .09 x (2,273/365) | $2,173.32 |
| 4/9/11 | 12/30/13 | 8/19/12 | $6,189.43 | $6,189.43 x .09 x (1,462/365) | $2,231.25 |
| 12/31/13 | 2/14/14 | 1/22/14 | $315.43 | $315.43 x .09 x (941/365) | $73.19 |
| Total:$5,247.24 |
In total, this Court recommends that Baquiax be awarded $221,088.98 in damages (representing $129,124.95 in unpaid minimum-wage, overtime, and spread-of-hours pay; $86,964.03 in liquidated damages; and $5,000.00 in statutory damages), plus $58,106.19 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
5. Plaintiff Ramirez
Plaintiff Ramirez is the fourth Plaintiff to have submitted a Declaration with the default motion. Based on that Declaration and the Complaint, Ramirez was employed by Defendants from approximately June 2012 to approximately April 2014. (Ramirez Decl. ¶ 4; see Compl. ¶ 130.) He asserts that, from approximately June 2012 to approximately January 2014, he worked about 12.5 hours per day (from about 10:00 a.m. to about 10:30 p.m.), six days per week, for an estimated 75 hours per week; and that, from approximately January 2014 to approximately April 2014, he worked about 14 hours per day (from about 10:00 a.m. to 12:00 a.m.), six days per week, for an estimated 84 hours per week. (Ramirez Decl. ¶¶ 9, 10; Compl. ¶¶ 136, 137.) He estimates that, from about June 2012 to about September 2012, he was paid $200 per week; that, from about September 2012 to about January 2014, he was paid $220 per week; and that, from about January 2014 to about April 2014, he was paid $260 per week. (Ramirez Decl. ¶¶ 12-14; Compl. ¶¶ 139-41.)
The relevant periods and damages calculations for Ramirez's unpaid minimum wages and overtime are thus as follows:
| Ramirez - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL and FLSA | ||||||||
| 6/15/12 | 9/14/12 | 13.14 | 75 | $200/wk | $7.25/hr | $5.00/hr(200 ÷ 40) | $8,814.31($7.25 x 40+ $10.88 x 35x 13.14 wks) | $6,186.31 |
| 9/15/12 | 12/30/13 | 68 | 75 | $220/wk | $7.25/hr | $5.50/hr(220 ÷ 40) | $45,614.40($7.25 x 40+ $10.88 x 35x 68 wks) | $30,654.40 |
| 12/31/13 | 1/14/14 | 2.14 | 75 | $220/wk | $8.00/hr | $5.50/hr(220 ÷ 40) | $1,583.60($8.00 x 40+ $12.00 x 35x 2.14 wks) | $1,112.80 |
| 1/15/14 | 4/14/14 | 12.86 | 84 | $260/wk | $8.00/hr | $6.50/hr(260 ÷ 40) | $10,905.28($8.00 x 40+ $12.00 x 44x 12.86 wks) | $7,561.68 |
| Total:$45,515.19 |
The relevant period and damages calculation for Ramirez's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Ramirez - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | StackedLiq. DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 6/15/12 | 4/14/14 | 100% | 100% | No | $45,515.19 | $45,515.19 |
With respect to Ramirez's claims for wage-statement and wage-notice damages, Ramirez, as set out above, worked substantially in excess of 50 weeks after April 9, 2011, i.e., during the period for which such damages are available. Accordingly, on these claims, Ramirez is entitled to capped statutory damages of $5,000.00.
Next, the relevant periods and damages calculations for Ramirez's spread-of-hours pay are as follows:
| Ramirez - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 6/15/12 | 12/30/13 | 564 | 6 | $7.25/hr | $7.25 x 564 days x (6/7) | $3,504.86 |
| 12/31/13 | 4/14/14 | 105 | 6 | $8.00/hr | $8.00 x 105 days x (6/7) | $720.00 |
| Total: $4,224.86 |
The relevant period and damages calculation for Ramirez's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Ramirez - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 6/15/12 | 4/14/14 | 100% | $4,224.86 | $4,224.86 |
The relevant periods and calculations for prejudgment interest on Ramirez's minimum-wage and overtime damages are as follows:
| Ramirez - Prejudgment Interest on Unpaid Minimum Wages and Overtime Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime Damages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 6/15/12 | 9/14/12 | 7/30/12 | $6,186.31 | $6,186.31 x .09 x (1,482/365) | $2,260.63 |
| 9/15/12 | 12/30/13 | 5/8/13 | $30,654.40 | $30,654.40 x .09 x (1,200/365) | $9,070.34 |
| 12/31/13 | 1/14/14 | 1/7/14 | $1,112.80 | $1,112.80 x .09 x (956/365) | $262.32 |
| 1/15/14 | 4/14/14 | 2/28/14 | $7,561.68 | $7,561.68 x .09 x (904/365) | $1,685.53 |
| Total:$13,278.82 |
Finally, the relevant periods and calculations for prejudgment interest on Ramirez's spread-of-hours damages are as follows:
| Ramirez - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Time in Yearsfrom Median Date to 8/19/2016) | Interest Owed |
| 6/15/12 | 12/30/13 | 3/23/13 | $3,504.86 | $3,504.86 x .09 x (1,246/365) | $1,076.80 |
| 12/31/13 | 4/14/14 | 2/20/14 | $720.00 | $720.00 x .09 x (912/365) | $161.91 |
| Total:$1,238.71 |
In total, this Court recommends that Ramirez be awarded $104,480.10 in damages (representing $49,740.05 in unpaid minimum-wage, overtime, and spread-of-hours pay; $49,740.05 in liquidated damages; and $5,000.00 in statutory damages), plus $14,517.43 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
6. Plaintiff Mendez
Based on the allegations in the Complaint, Mendez was employed by Defendants from approximately 2008 to the date the Complaint was filed. (Compl. ¶ 173.) Mendez alleges that, from approximately March 2008 to approximately November 2012, he worked about 10 hours per day (from about 12:00 p.m. to about 10:00 p.m.), six days per week, for an estimated 60 hours per week. (Id. ¶ 179.) He further alleges that, from approximately November 2012 to approximately January 2014, he worked about seven hours on Tuesdays (from about 10:00 a.m. to 5:00 p.m.), about 12 hours on Wednesdays (from about 10:00 a.m. to 10:00 p.m.), and about 11 hours on both Fridays and Saturdays (from about 11:00 a.m. to 10:00 p.m.), for a total of about 41 hours per week. (Id. ¶ 180.) He also alleges that, from approximately January 2014 to the date of the Complaint, he worked about 10 hours on Wednesdays (from about 12:00 p.m. to 10:00 p.m.), about five hours on Thursdays (from about 5:00 p.m. to 10:00 p.m.), and about 10 hours on both Fridays and Saturdays (from about 12:00 p.m. to 10:00 p.m.), for a total of about 35 hours per week. (Id. ¶ 181.) Unlike the other Plaintiffs, who all claim to have been paid a weekly salary, Mendez alleges that, for the duration of his employment, he was paid $10.00 per hour. (Id. ¶ 183.) The relevant periods and damages calculations for Mendez's unpaid minimum wages and overtime are thus as follows:
Although the Complaint alleges that Mendez's hours for this period were typically 40 per week (see Comp. ¶ 180), the recited hours actually total 41 per week.
| Mendez - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | Amount Owed(Amt. Entitled- Amt. Paid) |
| Period Covered by NYLL | ||||||||
| 3/15/08 | 7/23/09 | 70.86 | 60 | $10/hr | $7.15/hr | $10/hr | $49,602.00($10.00 x 40+ $15.00 x 20x 70.86 wks) | $7,086.00 |
| 7/24/09 | 12/31/10 | 75 | 60 | $10/hr | $7.25/hr | $10/hr | $52,500($10.00 x 40+ $15.00 x 20x 75 wks) | $7,500.00 |
| 1/1/11 | 3/6/11 | 9.28 | 60 | $10/hr | $7.25/hr | $10/hr | $6,496.00($10.00 x 40+ $15.00 x 20x 9.28 wks) | $928.00 |
| Period Covered by NYLL and FLSA | ||||||||
| 3/7/11 | 4/8/11 | 4.71 | 60 | $10/hr | $7.25/hr | $10/hr | $3,297.00($10.00 x 40+ $15.00 x 20x 4.71 wks) | $471.00 |
| 4/9/11 | 11/14/12 | 83.43 | 60 | $10/hr | $7.25/hr | $10/hr | $58,401.00($10.00 x 40+ $15.00 x 20x 83.43 wks) | $8,343.00 |
| 11/15/12 | 12/30/13 | 58.71 | 41 | $10/hr | $7.25/hr | $10/hr | $24,364.65($10.00 x 40+ $15.00 x 1x 58.71 wks) | $293.55 |
| 12/31/13 | 1/14/14 | 2.14 | 41 | $10/hr | $8.00/hr | $10/hr | $888.10($10.00 x 40+ $15.00 x 1x 2.14 wks) | $10.70 |
| 1/15/14 | 3/7/14 | 7.43 | 35 | $10/hr | $8.00/hr | $10/hr | $2,600.50($10.00 x 35X 7.43 wks) | -0- |
| Total:$24,632.25 |
The relevant periods and damages calculations for Mendez's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Mendez - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | StackedLiq. DamagesPermitted? | Min.-Wage &OvertimeDamages | Amount Owed |
| 3/15/08 | 3/6/11 | 25% | N/A | N/A | $15,514.00 | $3,878.50 |
| 3/7/11 | 4/8/11 | 25% | 100% | Yes | $471.00 | $588.75 |
| 4/9/11 | 3/7/14 | 100% | 100% | No | $8,647.25 | $8,647.25 |
| Total:$13,114.50 |
With respect to Mendez's claim for wage-statement and wage-notice damages, Mendez, as set out above, worked substantially in excess of 50 weeks after April 9, 2011, i.e., during the period for which such damages are available. Accordingly, on these claims, Mendez is entitled to capped statutory damages of $5,000.00.
Next, the relevant periods and damages calculations for Mendez's spread-of-hours pay are as follows:
| Mendez - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inperiod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 11/15/12 | 12/30/13 | 411 | 2 | $7.25/hr | $7.25 x 411 days x (2/7) | $851.36 |
| 12/31/13 | 1/14/14 | 15 | 2 | $8.00/hr | $8.00 x 15 days x (2/7) | $34.28 |
| Total: $885.64 |
The relevant period and damages calculation for Mendez's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Mendez - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 11/15/12 | 1/14/14 | 100% | $885.64 | $885.64 |
The relevant periods and calculations for prejudgment interest on Mendez's minimum-wage and overtime damages are as follows:
| Mendez - Prejudgment Interest on Unpaid Minimum Wages and Overtime Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime Damages | Calculation(Principal x .09 x Years fromMedian Date To 8/19/2016) | Interest Owed |
| 3/15/08 | 7/23/09 | 11/17/08 | $7,086.00 | $7,086.00 x .09 x (2,833/365) | $4,949.91 |
| 7/24/09 | 12/31/10 | 4/12/10 | $7,500.00 | $7,500.00 x .09 x (2,322/365) | $4,294.11 |
| 1/1/11 | 3/6/11 | 2/2/11 | $928.00 | $928.00 x .09 x (2,026/365) | $463.59 |
| 4/9/11 | 11/14/12 | 1/26/12 | $8,343.00 | $8,343.00 x .09 x (1,668/365) | $3,431.37 |
| 11/15/12 | 12/30/13 | 6/8/13 | $293.55 | $293.55 x .09 x (1,169/365) | $84.61 |
| 12/31/13 | 1/14/14 | 1/7/14 | $10.70 | $10.70 x .09 x (956/365) | $2.52 |
| Total:$13,226.11 |
Finally, the relevant periods and calculations for prejudgment interest on Mendez's spread-of-hours damages are as follows:
| Mendez - Prejudgment Interest on Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Spread-of-HoursDamages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 11/15/12 | 12/30/13 | 6/8/13 | $851.36 | $851.36 x .09 x (1,169/365) | $245.40 |
| 12/31/13 | 1/14/14 | 1/7/14 | $34.28 | $34.28 x .09 x (956/365) | $8.08 |
| Total: $253.48 |
In total, this Court recommends that Mendez be awarded $44,518.03 in damages (representing $25,517.89 in unpaid minimum-wage, overtime, and spread-of-hours pay; $14,000.14 in liquidated damages; and $5,000.00 in statutory damages), plus $13,479.59 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
7. Plaintiff Osorno
Plaintiff Osorno has not submitted a declaration in connection with the default motion, but he alleges in the Complaint that he was employed by Defendants from approximately February 2012 to approximately November 2012. (Compl. ¶ 153.) Osorno further alleges that, for the duration of his employment, he worked about 12.5 hours per day (from about 10:00 a.m. to 10:30 p.m.), six days per week, for an estimated 75 hours per week (id. ¶ 159), and that he was paid $250 per week for his work (id. ¶ 161). The relevant period and damages calculation for Osorno's unpaid minimum wages and overtime are thus as follows:
| Osorno - Unpaid Minimum Wages and Overtime Pay | ||||||||
|---|---|---|---|---|---|---|---|---|
| From | To | WeeksinPeriod | Hours/Week | WagesPaid | NYLLHourlyMin.Wage | HourlyRate Paid | WagesTo WhichPl. Entitled(Straight Time+ Overtime xNo. of Weeks) | AmountOwed(Amt.Entitled -Amt. Paid) |
| Period Covered by NYLL and FLSA | ||||||||
| 2/15/12 | 11/14/12 | 39 | 75 | $250/wk | $7.25/hr | $6.25/hr(250 ÷ 40) | $26,161.20($7.25 x 40+ $10.88 x 35x 39 wks) | $16,411.20 |
The relevant period and damages calculation for Osorno's liquidated damages on his unpaid minimum wages and overtime pay are as follows:
| Osorno - Liquidated Damages on Unpaid Minimum Wages and Overtime Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | NYLL% Liq. DamagesAvailable | FLSA% Liq. DamagesAvailable | StackedLiq. DamagesPermitted? | Min.-Wage& OvertimeDamages | Amount Owed |
| 2/15/12 | 11/14/12 | 100% | 100% | No | $16,411.20 | $16,411.20 |
With respect to Osorno's claims for wage-statement and wage-notice damages, Osorno's entire length of employment, as set out above, fell after April 9, 2011 (and thus during the period for which such damages are available), and he worked for approximately 39 weeks. Accordingly, Osorno is entitled to capped statutory damages of $2,500.00 for wage-statement violations (given that 39 wks x $100.00 = $3,900.00, which would exceed the cap), and $1,950.00 in wage-notice damages (39 wks x $50.00), for a total of $4,450.00 in statutory damages.
Next, the relevant period and damages calculation for Osorno's spread-of-hours pay are as follows:
| Osorno - Unpaid Spread-of-Hours Pay | ||||||
|---|---|---|---|---|---|---|
| From | To | Days inPeriod | No. of>10-HourDays/Week | NYLLHourlyMin. Wage | Calculation | Amount Owed |
| 2/15/12 | 11/14/12 | 273 | 6 | $7.25/hr | $7.25 x 273 days x (6/7) | $1,696.50 |
The relevant period and damages calculation for Osorno's liquidated damages on his unpaid spread-of-hours pay are as follows:
| Osorno - Liquidated Damages on Unpaid Spread-of-Hours Pay | ||||
|---|---|---|---|---|
| From | To | NYLL % Liq. Damages Available | Spread-of-Hours Damages | Amount Owed |
| 2/15/12 | 11/14/14 | 100% | $1,696.50 | $1,696.50 |
Finally, the relevant period and calculation for prejudgment interest on Osorno's minimum wage, overtime pay, and spread-of-hours damages are as follows:
| Osorno - Prejudgment Interest on Unpaid Minimum Wages, Overtime Pay, and Spread-of-Hours Pay | |||||
|---|---|---|---|---|---|
| From | To | MedianDate | Min.-Wage &Overtime + Spread-of-Hours Damages | Calculation(Principal x .09 x Years FromMedian Date To 8/19/2016) | Interest Owed |
| 2/15/12 | 11/14/12 | 6/30/12 | $18,107.70 | $18,107.70 x .09 x (1,511/365) | $6,746.48 |
In total, this Court recommends that Osorno be awarded $40,665.40 in damages (representing $18,107.70 in unpaid minimum-wage, overtime, and spread-of-hours pay; $18,107.70 in liquidated damages; and $4,450 in statutory damages), plus $6,746.48 in prejudgment interest, calculated through August 19, 2016, with additional interest to be awarded as calculated by the Clerk of the Court, from August 20, 2016 to the date final judgment is entered.
C. ATTORNEYS' FEES AND COSTS
Plaintiffs seek attorneys' fees in the amount of $21,959.60, jointly and severally from Defendants, as compensation for 49.70 hours of work performed in this action. (Androphy Decl., Ex. K (Dkt. 62-8), at 4.) Plaintiffs also seek recovery of costs, in the amount of $1,364.60. (Id.) For the reasons that follow, I recommend that the requested costs be approved and included in the judgment, less $75.00, and that the amount of awarded fees be reduced to $16,176.00.
1. Reasonable Hourly Rates
Plaintiffs were represented by attorneys Michael Faillace ("Faillace") and Joshua Androphy ("Androphy"), of the law firm Michael Faillace & Associates, P.C. (the "Faillace Firm"), an employment-law firm located in Manhattan. (Androphy Decl. ¶ 16(h).) Faillace is the "managing member" of the Faillace Firm, and has been practicing labor and employment law since 1983. (Id.) He has taught employment-discrimination law as an adjunct professor at Fordham University School of Law since 1992 and at Seton Hall University Law School from 1995 to 1998, and Plaintiffs' submissions describe him as a "nationally-renowned speaker and writer on employment law." (Id.) He bills at a rate of $450 per hour. (Id.) Androphy is described as a "senior attorney" who has practiced litigation since 2005 and wage-and-hour law since 2012. (Id.) He bills at a rate of $400 per hour. (Id.)
As this Court has repeatedly concluded, the hourly rates that are being requested by Plaintiffs' counsel are, at least to some extent, higher than the "prevailing [rates] in the community for similar services by lawyers of reasonably comparable . . . experience." Elisama v. Ghzali Gourmet Deli, Inc., No. 14cv8333 (PGG) (DF), 2016 U.S. Dist. LEXIS 58833, at *56 (S.D.N.Y. Nov. 7, 2016) (amended report and recommendation) (quoting Blum, 465 U.S. at 895 n.11); Rodriguez v. Obam Mgmt. Inc., No. 13cv00463 (PGG) (DF), 2016 U.S. Dist. LEXIS 155315, at *79 (S.D.N.Y. Nov. 7, 2016) (amended report and recommendation) (same); see also Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14cv7850 (VEC) (DF), 2016 U.S. Dist. LEXIS 155116, at *54-55 (S.D.N.Y. Nov. 7, 2016) (discussing Elisama and Rodriguez).
In reaching that conclusion in Elisama, Rodriguez, and Almanzar, this Court considered what had been presented to it (or what it could independently ascertain) regarding the experience of the attorneys involved, and took note of a number of other decisions from within this District that had reduced the billing rates requested by the same attorneys, for work performed on similar wage cases that had also resulted in defaults. See, e.g., Rosendo, 2015 WL 1600057, at *8 (collecting cases in which lawyers from the Faillace Firm had been awarded "below [the attorneys'] requested 'regular' hourly rates" and awarding fees at the rates of $400/hour for Faillace and $300/hour for Androphy); see also Apolinario v. Luis Angie Deli Grocery Inc., No. 14cv2328 (GHW), 2015 WL 4522984, at *3 (S.D.N.Y. July 27, 2015) (approving Faillace's requested rate of $450 per hour, but finding that a rate of $300 per hour would be appropriate for senior associates with at least eight years of experience, and finding that rate to be reasonable for Androphy). More recently, two additional decisions issued in this District reduced Faillace's and Androphy's rates to $425 and $300 per hour, respectively. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14cv10234 (JGK) (JLC), 2016 WL 4704917, at *20 (S.D.N.Y. Sept. 8, 2016), report and recommendation adopted, 2016 WL 6879258 (Nov. 21, 2016); Andrade, 2016 WL 3141567, at
This Court recognizes that Faillace is the managing partner of his firm and an experienced FLSA litigator. Given his level of experience, this Court has previously recommended that his requested rate of $450 per hour be approved, although with some reductions to take into account work that could have been performed by an attorney at a more junior level. See Almanzar, 2016 U.S. Dist. LEXIS 155116, at *58, *60-61; Rodriguez, 2016 U.S. Dist. LEXIS 34154, at *80-81. This Court will adhere to that recommendation here. As for Androphy, a senior associate with the Faillace Firm, this Court has previously recommended, consistent with other recent decisions of the Court, that his requested hourly rate of $400 be reduced to $300, Almanzar, 2016 U.S. Dist. LEXIS 155116, at *56; Rodriguez, 2016 U.S. Dist. LEXIS 34154, at *79-80, and this Court maintains its view that this reduction would be appropriate.
In Elisama, this Court recommended that Faillace's requested rate be reduced to $400 per hour, not because $450 would have been unreasonable, but because this Court had deduced from the invoice submitted in Elisama that Faillace had actually recorded his time using a rate of $400 per hour in that case. See 2016 U.S. Dist. LEXIS 58833, at *58.
In sum, based on the prevailing rates within this District, this Court recommends that, for purposes of calculating the lodestar, Faillace's requested rate of $450 per hour be approved as reasonable, but that the rate requested for Androphy be reduced to $300 per hour.
2. Reasonable Hours
As noted above, in support of Plaintiffs' request for fees, counsel has provided the Court with a copy of an invoice which appears to reflect attorney time records that were maintained contemporaneously during the course of the litigation, and which shows the billable hours expended during this action. (Dkt. 62-8.) Most of the time entries adequately describe reasonable tasks that appear to have been performed within a reasonable amount of time.
A few of counsel's time entries, however, are problematic. First, some of the work performed by Androphy, as a "senior" associate, and even by Faillace, as the supervising partner on the case, could and should have been performed by a more junior attorney with a lower billing rate, or even by a paralegal. For example, Faillace himself apparently billed .75 hours (charging $337.50) for searching a "Corporation and Business Entity Database," presumably to gather basic information regarding the Corporate Defendant. (See id. (time entry for Feb. 25, 2014).) This was work that presumably could have been performed easily by a more junior attorney. Similarly problematic are the numerous entries by Androphy (and one by Faillace) that refer to the "filing" of documents. (See id. (Faillace time entry of Mar. 7, 2014; Androphy time entries of July 1, 2014, Apr. 8, 2015, Mar. 4, 2015, July 22, 2015, Sept. 16, 2015, Feb. 6, 2016, Apr. 15, 2016, July 28, 2016, Aug. 17, 2016).) Filing a document is a task that could have been performed by a junior associate or paralegal, billing at a lower hourly rate. See, e.g., Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12cv9190 (GBD) (AJP), 2013 WL 6481354, at *9 (S.D.N.Y. Dec. 3, 2013), report and recommendation adopted, 2014 WL 1338065 (Apr. 3, 2014) (finding a reduction in hours to be warranted where a task could have been performed by an associate or paralegal who billed at a lower rate). Similarly, Androphy's level of expertise was not necessary for the service of discovery requests or for "book[ing a] court report and interpreter." (Dkt. 62-8 (Androphy time entries of Nov. 24, 2014, Mar. 31, 2015, and May 6, 2016).)
Second, it is of additional concern that the majority of the time entries that describe the filing or service of documents are "block-billed" (i.e., multiple tasks are clustered together in the same billing entry), preventing this Court from being able to ascertain how much time was spent on filing and service, and how much was spent on other tasks. (See, e.g., id. (Faillace time entry of 3.75 hours for Mar. 7, 2014 ("Finalized and filed complaint, SDNY"); Androphy time entry of 1.00 hours for Apr. 28, 2015 ("email and call m Giampilis; call clients re employer status of individuals; draft and submit request for extension of time for discovery").) While the practice of block billing "is not prohibited in this Circuit," Rodriguez v. McLoughlin, 84 F. Supp. 2d 417, 425 (S.D.N.Y. 1999); see also, e.g., Hutchinson v. McCabee, No. 95cv5449 (JFK), 2001 WL 930842, at *4 (S.D.N.Y. Aug. 15, 2001), it is difficult for a court to evaluate whether the time spent on a given task was excessive where the attorney has grouped different tasks together in a single time entry. Thus, at times, courts have reduced or even disallowed requested attorneys' fees where the supporting time records were not broken out with sufficient detail to enable the courts to determine the reasonableness of the time spent on particular tasks. See, e.g., Green v. City of New York, 403 F. App'x 626, 630 (2d Cir. 2010) (affirming hours reduction for pervasive block billing in time entries); Bank v. Ho Seo, No. 06cv15445 (LTS) (RLE), 2009 WL 5341672, at *5 (S.D.N.Y. Dec. 16, 2009) (reducing a fee award and noting that the process of combining "multiple tasks into one entry" blocks the court's "efforts to evaluate the reasonableness of any of the listed activities" (internal quotation marks and citation omitted)), report and recommendation adopted as modified on other grounds, 2010 WL 129681 (Jan. 13, 2010); Soler v. G&U, Inc., 801 F. Supp. 1056, 1061-62 (S.D.N.Y. 1992) (excluding from lodestar calculation all time entries with commingled activities).
Third, the submitted invoice is unclear as to the extent to which Androphy billed for travel time, in connection with his appearances at depositions and in court. One of Androphy's time entries (1.10 hours on May 19, 2015) explicitly states that the time incurred was to "prepare for and travel to deposition." (Dkt. 62-8 (emphasis added).) A second time entry does not specify whether travel time was included (id. (Androphy time entry of 3.40 hours on Aug. 14, 2015 ("prepare for and attend court"))), but given the amount of time captured by this entry, it seems likely that it does include time for attorney travel. Typically, in fee awards, attorney travel time is only compensated at 50 percent of the attorney's reasonable billing rate. Siegel v. Bloomberg L.P., No. 13cv1351 (DF), 2016 WL 1211849, at *7 (S.D.N.Y. Mar. 22, 2016) (collecting cases and noting that applying a 50 percent reduction to hourly rates for travel time is the "customary practice in this District").
In light of these billing issues, which are notable, but not pervasive, this Court recommends that an across-the-board reduction of five percent be applied to the hours reportedly billed by Plaintiffs' counsel. See Carey, 711 F.2d at 1142, 1146 (noting that a percentage reduction may be applied as a "practical means of trimming fat" from a fee application). This would result in an overall reduction of counsel's time from 49.70 hours (as shown in Dkt. 62-8) to 47.22 hours, which this Court finds reasonable.
3. Lodestar Calculation
Using the reasonable rates and hours described above would result in the following lodestar calculation:
| Attorney | Hourly Rate(as recommendedby this Court) | Hours Billed(reduced by 5%) | Fees per Attorney |
|---|---|---|---|
| Faillace | $450.00 x | 13.40 | $6,030.00 |
| Androphy | $300.00 x | 33.82 | $10,146.00 |
| Total: $16,176.00 |
This Court finds no exceptional circumstances here that would warrant deviation from the lodestar, see Perdue, 559 U.S. at 552, and therefore recommends that Plaintiffs be awarded attorneys' fees in the amount of $16,176.00.
4. Costs
Plaintiffs additionally seek litigation costs, in the amount of $1,364.60, including a $350.00 filing fee; three separate $75.00 process-server fees; the cost of taking defendant Karalexis's deposition ($679.60); and the cost of a court reporter's appearance at a previously scheduled deposition that Karalexis failed to attend ($110.00). (Dkt. 62-8.) This Court finds these requested costs to be reasonable and compensable, see Rosendo, 2015 WL 1600057, at *9, with the exception of one of the three process-server fees, which this Court recommends not be awarded. Apart from its own "invoice," itemizing these fees, the Faillace Firm has failed to submit any underlying documentation supporting that the fees were incurred. Without such documentation, this Court is unable to assess whether at least one of the stated fees was incurred for the supposed service of process on the John Doe defendant (see Dkt. 6 (Affidavit of Service of Summons and Complaint, sworn to Mar. 20, 2014 (reflecting service on "John Doe," at his "actual place of business," with service accepted by "Nelly 'Doe'")), who, as noted above, is not one of the subjects of Plaintiffs' default motion. Accordingly, I recommend that costs be awarded in the amount of $1,289.60.
CONCLUSION
Based on the foregoing, I respectfully recommend that Plaintiffs' motion for a default judgment against defendants Chirping Chicken NYC Inc., d/b/a Chirping Chicken, and Kalli Karalexis (Dkt. 61) be granted, and that judgment be entered against these two Defendants, jointly and severally, in the following amounts:
A. For plaintiff Flores:
1. $288,015.00 in damages (representing $169,105.80 in unpaid wages, $113,909.20 in liquidated damages, and $5,000.00 in statutory damages); and
2. $79,878.22 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $248,984.02, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
B. For plaintiff Mastranzo:
1. $29,081.42 in damages (representing $12,665.71 in unpaid wages, $12,665.71 in liquidated damages, and $3,750.00 in statutory damages); and
2. $3,057.10 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $15,722.81, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
C. For plaintiff Miculax:
1. $149,672.99 in damages (representing $89,909.74 in unpaid wages, $54,763.25 in liquidated damages, and $5,000.00 in statutory damages); and
2. $43,776.54 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $133,686.28, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
D. For plaintiff Baquiax:
1. $221,088.98 in damages (representing $129,124.95 in unpaid wages, $86,964.03 in liquidated damages, and $5,000.00 in statutory damages); and
2. $58,106.19 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $187,231.14, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
E. For plaintiff Ramirez:
1. $104,480.10 in damages (representing $49,740.05 in unpaid wages, $49,740.05 in liquidated damages, and $5,000.00 in statutory damages); and
2. $14,517.43 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $64,257.48, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
F. For plaintiff Mendez:
1. $44,518.03 in damages (representing $25,517.89 in unpaid wages, $14,000.14 in liquidated damages, and $5,000.00 in statutory damages); and
2. $13,479.59 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $38,997.48, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002;
G. For plaintiff Osorno:
1. $40,665.40 in damages (representing $18,107.70 in unpaid wages, $18,107.70 in liquidated damages, and $4,450.00 in statutory damages); and
2. $6,746.48 in prejudgment interest through August 19, 2016, with additional prejudgment interest, on the principal amount of $24,854.18, to be calculated by the Clerk of Court at the rate of nine percent per annum from August 20, 2016 to the date of entry of final judgment, in accordance with C.P.L.R. § 5002; and
H. $16,176.00 in attorneys' fees, and $1,289.60 in costs.
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 (14) 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, with courtesy copies delivered to the chambers of the Honorable Thomas P. Griesa, United States Courthouse, 500 Pearl Street, Room 1630, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 1660, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Griesa. 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).
If defendant Karalexis does not have access to cases cited herein that are reported only on Lexis or Westlaw, she may request copies from Plaintiffs' counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of [cases and other authorities that are unpublished or reported exclusively on computerized databases that are] cited in a decision of the Court and were not previously cited by any party[.]"). Dated: New York, New York
March 6, 2017
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to: Plaintiffs' counsel (via ECF) Ms. Kalli Karalexis
19-42 75th Street
Flushing, NY 11370