Opinion
21 Civ. 5630 (VB) (PED)
08-22-2022
LUIS EDUARDO HERRERA FLORES, Plaintiff, v. JERMYN CONTRACTING CORP., GOLIATH CONSTRUCTION, INC., MEADOWBROOK BUILDERS, INC. and PETER GLASS, in his individual capacity and as Officer of JERMYN CONTRACTING CORP., as Officer GOLIATH CONSTRUCTION, INC. and as Officer of MEADOWBROOK BUILDERS, INC., Defendants.
REPORT AND RECOMMENDATION
PAUL E. DAVISON, U.S.M.J.
TO THE HONORABLE VINCENT L. BRICCETTI, United States District Judge:
I. INTRODUCTION
On June 29, 2021, plaintiff Luis Eduardo Herrera Flores commenced this action against Jermyn Contracting Corporation (“Jermyn”), Goliath Construction, Inc. (“Goliath”), Meadowbrook Builders, Inc. (“Meadowbrook”) and Peter Glass (individually and as Officer of the corporate defendants), seeking unpaid overtime wages, liquidated damages, damages for wage statement violations and attorney's fees and costs pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., New York Labor Law (“NYLL”), §§ 190 et seq. and New York Codes, Rules and Regulations (“NYCRR”) Title 12 §§ 142 et seq. Dkt. #1. Defendants were served (Dkt. #12, #13, #24) but failed to timely answer, move or otherwise respond to the complaint. On March 4, 2022, Your Honor entered a default judgment against defendants as to liability (Dkt. #53) and referred this matter to me to conduct an inquest concerning plaintiff s damages. Dkt. #52.
On March 31. 2022,1 entered a Scheduling Order which: (1) directed plaintiff to serve and file proposed findings of fact and conclusions of law by April 29, 2022; (2) directed plaintiff to serve a copy of the Scheduling Order on defendants and file proof of service; and (3) directed defendants to submit any responsive materials by May 27, 2022. Dkt. #54, The Scheduling Order also stated the following:
The Court hereby notifies the parties that it may conduct this inquest based solely upon the written submissions of the parties. See Fuslok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). The Court will determine whether an evidentiary hearing is necessary after receiving submissions from the parties. To the extent that any party seeks an evidentiary hearing on the issue of damages (or other monetary relief), such party must set forth in its submission the reason why the inquest should not be conducted based upon the written submissions alone, including a description of what witnesses would be called to testify at a hearing and the nature of the evidence that would be submitted.Dkt. #54, ¶ 4.
On April 27, 2022, plaintiff requested an additional month to file his submissions. Dkt. #55. On April 29, 2022,1 granted plaintiffs request and adjusted the schedule accordingly (plaintiffs submission due May 27, 2022; defendants' submission due June 24, 2022). Dkt. #56. I also directed plaintiff to serve a copy of my Order, the underlying letter request and inquest Scheduling Order on defendants, and to file proof of service on the docket. Id.
Plaintiff filed the requested proof of service on May 31, 2022. Dkt. #58.
On May 27, 2022, plaintiff attempted to file his submission but the Clerk's Office rejected the filing. Dkt. #57. On June 3, 2022, plaintiff filed the requisite papers, which consisted of Proposed Findings of Fact and Conclusions of Law and five attached exhibits (including an affidavit of service). Dkt. #59. On or about August 11, 2022, plaintiff filed plaintiffs Declaration, which he had inadvertently omitted from the June 3d filing. Dkt. #60. See Dkt. #57. To date, defendants have not fded any opposition, nor have they contacted the Court in any way. Plaintiff has not requested an evidentiary hearing on the issue of damages. Because plaintiffs inquest submissions provide a basis for damages, no hearing was required, Fustok, 873 F.2d at 40. On the basis of plaintiffs written submissions, I recommend (for the reasons that follow) that Your Honor enter judgment in favor of plaintiff in the amount of $164,669.15.
II. FINDINGS OF FACT
Defendant Jermyn is a Pennsylvania corporation, with its principal place of business at 574 N. Washington Avenue, Jermyn, Pennsylvania 18433. Dkt. # 15 ¶ 11 Defendants Goliath and Meadowbrook are New York corporations with their headquarters and principal executive offices in Westchester County, New York. Dkt. #1, ¶¶ 14, 18 Jermyn, Goliath and Meadowbrook are construction/contracting companies, engaged in luxury home building and renovation. Dkt. #1, ¶¶ 35, 41. The employees of Jermyn, Goliath and Meadowbrook are engaged in interstate commerce, and the annual volume of business for each of the entities exceeds $500,000. Dkt. #1, ¶¶ 24-26. Defendant Glass founded, owns and manages Jermyn, Goliath and Meadowbrook and runs all day-to-day operations of all three entities, including hiring, firing, discipline and payment of employees. Dkt. #1, ¶¶ 27-29, 36-37.
The allegations in the Complaint establish this Court's personal jurisdiction over defendant Jermyn, to wit: plaintiff and his co-workers performed work on behalf of, and as employees of, Jermyn in Westchester, Dutchess, Rockland, Putnam and Orange counties; Jermyn caused their employees, contractors and materials to be brought into the State of New York; Jermyn transacted business and entered into contracts within the State of New York; and Jermyn's conduct within the State of New York is a direct cause of the instant action. Dkt. #1, ¶¶ 61-66. See Fed.R.Civ.P. 4(k)(1)(A); N.Y. C.P.L.R. § 302(a)(1). Further, this Court's exercise of personal jurisdiction over defendant Jermyn comports with Due Process because, considering Jermyn's contacts with New York under the totality of the circumstances, the assertion of personal jurisdiction “does not offend traditional notions of fair play and substantial justice.” See Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 169-70 (2d Cir. 2013).
Both Goliath and Meadowbrook have a New York State Department of State Process Server address listed as “Outside GC, LLC, 51 Cypress Lance, Briarcliff Manor, New York 10510. Dkt. #1, ¶¶ 15, 22.
Plaintiff was employed by defendants as a construction laborer from April 2002 to September 14, 2020. Dkt. #1, ¶¶ 42, 53; Dkt. #60, ¶ 3. His duties included brickwork (creating patios and sidewalks), basement and chimney construction, tree trimming, blacktopping, septic tank installation and demolition. Dkt. #1, ¶ 44; Dkt. #60, ¶ 5. Throughout plaintiffs employment, he worked under the direction of defendant Glass at various locations in Westchester, Dutchess, Rockland, Putnam and Orange counties, Monday through Saturday (and occasionally Sunday), approximately 60 hours per week, Dkt. #1, ¶¶ 45, 47-49; Dkt. #60, ¶¶ 3, 6, 8, 10. Plaintiff was paid $24.00 for each hour worked, including hours worked in excess of 40 hours/week. Dkt. #1, ¶ 50; Dkt. #60, ¶ 11. Plaintiff received a portion of his pay by check, and the balance in cash. Dkt. #1, ¶ 51; Dkt. #60, ¶¶ 13,16. Throughout his employment, defendants failed to provide plaintiff with wage statements. Dkt. #1, ¶ 60; Dkt. #60, ¶ 18.
III. STANDARD FOR INQUEST ON DAMAGES
When a defendant defaults, the court must accept all well-pleaded factual allegations in the complaint as true, except those pertaining to the amount of damages. Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6, 84 (2d Cir. 2009); Fed.R.Civ.P. 8(b)(6). “Nonetheless, even after default has been entered, district courts retain the discretion to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.” U.S. ex rel. Nat. Dev. & Const. Corp. v. U.S. Env't Universal Servs., Inc., No. 11 Civ. 730, 2014 WL 4652712, at *2 (S.D.N.Y. Sept. 2, 2014)(quotation and citation omitted); see also Fed.R.Civ.P. 55(b)(2). In other words, because a defaulting defendant does not admit conclusions of law, Amer, Trans. Ins. Co. v. Bilyk, No. 19 Civ. 5171, 2021 WL 216673, at *4 (E.D.N.Y. Jan. 21, 2021), the court “is also required to determine whether the [plaintiffs] allegations establish [the defendant's] liability as a matter of law.” Finkel, 577 F.3d at 84. “A default, then, only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendant. Taizhou Zhongneng Import and Export Co., LTD. v. Koutsobinas, 509 Fed.Appx. 54, 56 (2d Cir. 2013).
Similarly, a defendant's default does not constitute an admission of damages. Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015). On an inquest for damages, the plaintiff bears the burden of proof and must introduce admissible evidence to establish, with reasonable certainty, a basis for the amount of damages it seeks. House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010); Yunjian Lin v. Grand Sichuan 74 St Inc.,Flo. 15 Civ. 2950, 2020 WL 3072290, at *2 (S.D.N.Y. June 10, 2020). The plaintiff is entitled to all reasonable inferences from the evidence it presents. House, 359 Fed.Appx. at 207.
IV. ASSESSING LIABILITY
A. FLSA Overtime Claim
The FLSA “specifies that an employer must pay employees who work more than forty hours during a workweek for the excess hours “at a rate not less than one and one-half times the regular rate at which [they are] employed.'” Espinoza v. Broadway Pizza & Restaurant Corp., No. 17 Civ. 7995,2021 WL 7903991, at *4 (S.D.N.Y. Nov, 18, 2021) (citing 29 U.S.C. § 207(a)(1)), report and recommendation adopted, 2022 WL 977068 (S.D.N.Y. Mar. 31,2022). “There is a presumption that an employee is entitled to overtime; an employer bears the burden of proving that an employee is exempt from overtime.” Id.
To state a claim for overtime wages under the FLSA, plaintiff must allege that: (1) he was defendants' employee; (2) his work involved interstate activity; and (3) he worked hours for which he did not receive overtime wages. See Suriel v. Cruz, No. 20 Civ. 8442, 2022 WL 1750232, at * 10 (S.D.N.Y, Jan. 10, 2022), report and recommendation adopted, 2022 WL 1751163 (S.D.N.Y. May 31,2022). “[A]n individual may simultaneously have multiple employers for the purposes of the FLSA, in which event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the FLSA. Guzman v. Primo Installation, Inc., No. 18 Civ. 7226, 2022 WL 3230095, at *6 (S.D.N.Y. June 8, 2022) (quotation marks and citations omitted), report and recommendation adopted, 2022 WL 3229219 (S.D.N.Y. Aug. 10, 2022). Further, plaintiffs work involved interstate activity if he was engaged in commerce or employed by an enterprise engaged in commerce. See Suriel, 2022 WL 1750232, at * 11. “[A]n ‘enterprise engaged in commerce' is an enterprise that ‘has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person' and that has an annual gross volume of sales made or business done . .. not less than $500,000.” Shi v. TL & CG Inc., No. 19 Civ. 08502, 2022 WL 2669156, at *4 (S.D.N.Y. July 11, 2022) (quotation marks and citation omitted).
Here, plaintiff alleges that he was employed by defendants as a construction laborer under the direction of defendant Glass, who founded, owns and manages Jermyn, Goliath and Meadowbrook and runs all day-to-day operations of all three entities, including hiring, filing, discipline and payment of employees. Plaintiff further alleges that Jermyn, Goliath and Meadowbrook are enterprises engaged In commerce, each with an annual volume of business in excess of $500,000. Finally, plaintiff alleges that he consistently worked in excess of forty hours per week throughout his employment, but defendants paid him “straight time” for all his hours without the additional “half-time” premium. Defendants have failed to appear and, thus, fail to rebut the presumption that plaintiff is entitled to overtime compensation for hours worked in excess of forty per week. Accordingly, I conclude and respectfully recommend that plaintiff's uncontested allegations establish that defendants are jointly and severally liable under the FLSA for failure to pay plaintiff overtime compensation.
B. NYLL Overtime Claim
Like the FLSA, the NYLL requires employers to pay overtime rates calculated at one and one-half times the employee's regular rate of pay for all hours worked in a week over forty houis. See 12 N.Y.C.R.R. § 142-2.2. To recover under the NYLL, plaintiff must prove he was an “employee” and defendants were “employers' as defined by the statute. See Ramos v. Guaba Deli Grocery Corp., No. 20 Civ. 4904, 2021 WL 5563714, at *5 (S.D.N.Y. Nov. 29, 2021), appeal dismissed sub nom. Ramos v. Rivera, No. 22-209, 2022 WL 1564556 (2d Ch. Api. 21, 2022).
“[U]nlike the FLSA, the NYLL does not require that a defendant achieve a certain minimum in annual sales or business in order to be subject to the law. Id. Whether an individual qualifies as an employer is [otherwise] substantially similar under the FLSA and NYLL, and courts commonly apply FLSA case law in deciding cases under both statutes.” Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 323 (S.D.N.Y. 2021) (quotation marks and citation omitted), report and recommendation adopted, 2022 WL 282918 (S.D.N.Y. Jan. 31, 2022). Thus, because plaintiffs uncontested allegations establish that defendants are jointly and severally liable under the FLSA for failure to pay plaintiff overtime compensation, I conclude and respectfully recommend that plaintiff s allegations also establish that defendants are jointly and severally liable under the NYLL for failure to pay plaintiff overtime compensation, See Lopez v. 1923 Sneaker, Inc., No, 18 Civ. 3828, 2021 WL 1845057, at *4 (E.D.N.Y. Mar. 5, 2021), report and recommendation adopted, 2021 WL 1259623 (E.D.N.Y. Apr. 6, 2021).
C. NYLL Wage Statement Violations
The New York Wage Theft Prevention Act (“WPTA”) requires employers to provide a wage notice to an employee at the time of hiring. N.Y. Lab. Law § 195(1)(a). The WTPA also mandates that employers provide employees a wage statement or paystub with every payment of wages. Id. §195(3). In addition, New York law requires employers to make, keep and preserve records of employee wages, hours and employment conditions. See 12 N.Y.C.R.R. § 142-2.6. Here, plaintiff alleges that defendants never provided him with wage statements. Accordingly, I conclude and respectfully recommend that plaintiffs allegations establish defendants' joint and several liability for wage statement violations under New York law.
In his Complaint, plaintiff alleged that defendants also failed to provide him with a wage notice at the time of his hiring and failed to establish, maintain and preserve accurate payroll records. Dkt. #1, ¶¶ 77-80. Plaintiff has apparently abandoned those claims; in his inquest submission, plaintiff seeks damages under the WTP A solely for defendants failure to provide wage statements. Dkt. #59, at 11 (ECF pagination).
V. ASSESSING DAMAGES
Plaintiff seeks an award of damages against defendants in the amount of $165,270.30: $65,280 in unpaid overtime wages; $65,280 in liquidated damages; $5,000 in statutory damages for wage statement violations; $9,965.90 in prejudgment interest; and $19,745.15 in attorney fees and costs. Dkt. #59, at 10-14 (ECF pagination). Plaintiff submits the following exhibits in support of this request: the May 20, 2022 Declaration of plaintiff Luis Eduardo Herrera Flores detailing his work and payment history with defendants, including length of employment, hours worked and compensation received (Dkt. #60); the May 27, 2022 Declaration of Robert P. Valletti (plaintiffs attorney) (Dkt. #59-1); a calculation of plaintiffs damages based upon statements in plaintiffs Declaration (Dkt. #59-2); attorney billing records reflecting time spent and costs incurred (Dkt. #59-3); and documentation substantiating costs (Dktt. #59-4). I have thoroughly reviewed plaintiffs submissions and find that they constitute sufficient evidence to form the basis of an award of damages.
I note that plaintiff inadvertently omitted damages for wage statement violations in his Summary Paragraph. Dkt. #59, at 14 (ECF pagination). This is clearly an oversight.
A. Compensatory Damages for Overtime Violations
“Claims under the FLSA are subject to a two-year statute of limitations if the violation is not willful and a three-year statute of limitations if the violation is willful.” Espinoza, 2021 WL 7903991, at *5. “Claims brought pursuant to the NYLL are subject to a six-year statute of limitations.” Id Although plaintiff “may not recover under both the FLSA and NYLL for the same injury,” he may recover damages under whichever statute provides the greater relief. See Suriel, 22 WL 1750232, at *9. Here, plaintiff worked for defendants from April 2002 to September 14, 2020, and filed his Complaint on June 29, 2021. Under the FLSA, plaintiff would be entitled, at most, to compensation for unpaid overtime for approximately 115 weeks (June 28, 2018 to September 14, 2020). Under the NYLL, plaintiff would be entitled to compensation for unpaid overtime for 272 weeks (June 29, 2015 to September 14, 2020). “Courts in this Circuit routinely apply NYLL's six-year statute of limitations when plaintiffs bring minimum wage and overtime claims pursuant to both laws.” Garcia v. Saigon Grill, Inc.,Ho. 15 Civ. 9433, 2022 WL 1218482, at *2 (S.D.N.Y. April 25, 2022). Accordingly, I respectfully recommend awarding plaintiff damages for unpaid overtime wages under the NYLL in the amount of $65,280.00, calculated as follows:
Straight-time hourly wage = $24/hour
Overtime hourly wage = $36/hour ($24 x 1.5)
Unpaid overtime hourly wage = $12/hour ($36 - $24)
Unpaid overtime hours worked = 5,440 (20 hours/week x 272 weeks)
TOTAL UNPAID OVERTIME OWED = $65,280 (5,440 hours x $12/hour)
B. Liquidated Damages for Overtime Violations
Plaintiff seeks an award of $65,280 in liquidated damages. Both the FLSA and NYLL authorize an award of liquidated damages in an amount equal to the amount of unpaid wages. See Suriel, 2022 WL 1750232, at *15-16. Although plaintiff may not recover liquidated damages under both statutes, he is entitled to recover those damages under whichever statute provides the greater relief. See Guzman, 2022 WL 3230095, at *14. Here, the NYLL provides plaintiff greater relief because of its longer statute of limitations, and also because it allows for an award of prejudgment interest in addition to liquidated damages. See N.Y, Lab. Law § 198(1)(a). “Under the NYLL, liquidated damages are presumed unless [defendants] can show subjective good faith.” Espinoza, 2021 WL 7903991, at *8 (quotation marks and citations omitted). Defendants have chosen not to appear in this action and, therefore, have failed to rebut plaintiffs presumptive entitlement to liquidated damages. Accordingly, I respectfully recommend that plaintiff be awarded liquidated damages pursuant to the NYLL in the amount of $65,280.00.
Prejudgment interest is not available under the FLSA. See Guzman, 2022 WL 3230095, at *15 n.67.
C. Wage Statement Violations
Plaintiff seeks an award of $5,000 in statutory damages for defendants' failure to provide him with wage statements in violation of NYLL § 195(3). “Violations of Section 195(3) result in damages of $250 per workday, for a maximum of $5,000, which is reached after 20 days.” Suriel, 2022 WL 1750232, at *16. Here, defendants failed to provide plaintiff wage statements throughout his employment, for days beyond when the statutory cap was reached. Accordingly, I respectfully recommend that plaintiff be awarded statutory damages in the amount of $5,000.00.
D. Prejudgment Interest
As stated above, plaintiff may recover prejudgment interest under NYLL § 198(1)(a). See Guzman, 2022 WL 3230095, at 15. However, “prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages. Id., (quotation marks and citations omitted). The statutory rate of interest is 9% per annum, “and is computed on a simple interest basis.” Id. “When damages accrued at various times, interest may be computed upon all of the damages from a single reasonable intermediate date, Garcia, 2022 WL 1218482, at *3 (quotation marks and citations omitted). “To determine the appropriate midpoint date, courts identify the median date between the earliest ascertainable date the cause of action existed and the date the action was filed or last date the cause of action existed. Id. (quotation marks and citations omitted). “Interest is calculated from that midpoint date until and including the date judgment is entered.” Id. (quotation marks and citations omitted).
Here, plaintiff “seeks an award of prejudgment interest only on the compensatory damages awarded under the NYLL for the period from his separation of employment on September 14, 2020 until the date of [his] submission, May 27, 2022.” Dkt. #59, at 11-12 (ECF pagination). According to plaintiff, “this is a time period of 619 days.” Id. at 11 (ECF pagination). Thus, plaintiff seeks an award of prejudgment interest in the amount of $9,965.90 which he calculates as follows:
Daily interest accrual rate = $16.10/day ($65,280 x 9%) / 365 days per year-)
$16.10/day x 619 days = $9,965.90
* * *
Although plaintiffs calculation of the daily interest accrual rate is correct ($ 16.10/day), his proposed starting and ending dates are incorrect. Plaintiff mistakenly seeks prejudgment interest accruing from his last day of employment (September 14, 2020). Rather, the starting date should be February 5, 2018, the approximate midpoint date between June 29, 2015 (the earliest date on which his NYLL statute of limitations period began) and September 14, 2020 (the date his employment ended). Further, plaintiff mistakenly seeks to recover prejudgment interest only through May 27, 2022 (the purported date of his inquest submission). However, plaintiff would be entitled to receive prejudgment interest from February 5, 2018 to the date of entry of judgment. Thus, plaintiff would be entitled to an award of prejudgment interest in the amount of $16.10 per day from February 5, 2018 to the date of entry of final judgment. The issue here is that plaintiff has requested an award of prejudgment interest in the amount of $9,965.90 -far less than the amount to which he is entitled. To illustrate, even if prejudgment interest stopped accruing on May 27, 2022 (plaintiffs proposed end date), plaintiff would be entitled to an award of prejudgment interest in the amount of $25,325.30 (1,573 days x $16.10/day).
However, in the interest of parsimony, I do not recommend that plaintiff be awarded a greater amount of prejudgment interest than he seeks. Accordingly, I respectfully recommend that plaintiff be awarded $9,965.90 in prejudgment interest.
E. Attorney Fees and Costs
“Both the FLSA and the NYLL permit a successful plaintiff to recover reasonable attorneys' fees.” Suriel, 2022 WL 1750232, at * 17. Here, plaintiff seeks attorney's fees in the amount of $17,816.75. Dkt. #59, at 14 (ECF pagination); Dkt. #59-3, at 2-4 (ECF pagination).
“The district court retains discretion to determine . . . what constitutes a reasonable fee. Milled v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)). To determine whether the rate and hours requested are reasonable, the court must “bear in mind all of the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney's fees.” Arbor Hill Concerned Citizens Neighborhood Ass'nv. Cty. of Albany, 493 F.3d 110, 190 (2d Cir. 2007), amended on other grounds, 522 F.3d 182 (2d Cir. 2008). These factors include.
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customaiy hourly rate; (6) whether the fee is fixed or contingent; (7) the time . limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Id. at 186 n.3 (citing Johnson v. Ga. Highway Express, Inc., 488 F.3d 714, 717-19 (5th Cir. 1974)). The reasonable fee is calculated by multiplying the attorney's reasonable billing rate by the reasonable number of hours spent working on the case. See Simmons v. N. Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (discussing Arbor Hill). See also Arbor Hill, 522 F.3d at 18690 (emphasis in original) (rather than a two-step calculation that adjusts the product of the attorney's fees and hours by certain case-specific variables, “[t]he focus of the district court is no longer on calculating a reasonable fee, but rather on setting a reasonable hourly rate, taking account of all the case-specific variables”).
Here, plaintiff claims a lodestar figure of $17,816.75, based upon 29.4 hours of legal work in 2021 at an hourly rate of $350, plus 19.55 hours of legal work in 2022 at an hourly rate of $385. Dkt. #59-3, at 2-4 (ECF pagination)..
Mr. Valletti's hourly rate increased from $350 to $385 as of January 1, 2022. Dkt. #59-1,¶14.
1. Reasonable hourly rate
The hourly rate for an attorney should reflect “what a reasonable, paying client would be willing to pay.” Arbor Hill, 522 F.3d at 184. That rate must be “in line with those [rates] prevailing in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation.” Reimer v. MTA N. Y.C, Transit Auth., 457 F.3d 224, 232 (2d Cir, 2006) (alteration in original) (internal quotation marks omitted) (quoting Blum v. Stenson, 465 U.S. 886, 896 n.l 1 (1984)). “[T]he range of rates plaintiffs counsel actually charge their clients ... is obviously strong evidence of what the market will bear,” Doe v. Unum Life Ins, Co of Am, No. 12 Civ. 9327, 2016 U.S. Dist. LEXIS 10706, at *14-15. (S.D.N.Y. Jan. 28, 2016), report and recommendation adopted, No. 12 Civ. 9327, 2016 U.S. Dist. LEXIS 21928 (quoting Rozell v. Ross-Holst, 576 F.Supp.2d 527, 544 (S.D.N.Y. 2008) (internal quotation marks omitted). The Court must also bear in mind that "a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190.
Robert P. Valletti from Valletti & Associates in Patchogue, New York represented plaintiff in this action. Mr. Valletti has ten years' litigation experience, focused on labor and employment since 2014. Dkt. #59-1, ¶¶ 20-23. He has been a solo practitioner since April 2015. Id. at ¶ 23. Additionally, Mr. Valletti served as Assistant Town Attorney in the Law Enforcement Bureau for the Town of Islip from May 2015 until November 2019, when he became Secretary to the Commissioner of Public Safety for the Town of Islip. Id. at ¶ 24. Mr. Valletti's requested billing rates ($350 in 2021 and $385 in 2022) are well within the rates approved in wage and hour cases in the Southern District of New York and, moreover, are not unreasonable. See, e.g, Guzman, 2022 WL 3230095, at *16-17 (awarding $450 per hour to “well-seasoned” wage and hour litigator); Espinoza, 2021 WL 7903991, at *12 (awarding $400 per hour to partner and $350 per hour to experienced associates); Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788, 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour.”).
2. Reasonable number of hours expended.
In assessing the number of hours for which compensation should be awarded, “[t]he relevant issue [ ] is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Danaher Corp. v. Travelers Indem. Co., No. 10 Civ. 0121, 2015 WL 409525, at *3 (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)) (alteration in original).
“A court should exclude from the . . . calculation ‘excessive, redundant or otherwise unnecessary hours.'” Id. (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1997)). In addition, “the Court may reduce the fees requested for billing entries that are vague and do not sufficiently demonstrate what counsel did.” Doe v. Unum Life Ins. Co. of Am., No. 12 Civ. 9327, 2016 U.S. Dist. LEXIS 10706, at *18 (S.D.N.Y Jan. 28, 2016). Finally, “[a] trial judge ... may limit the hours allowed for specific tasks ... on the basis of [the court's] assessment of what is appropriate for the scope and complexity of the particular litigation.” N.Y.State Ass nfor Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983). The Second Circuit has cautioned that “attorney's fees are to be awarded with an eye to moderation, seeking to avoid either the reality or the appearance of awarding windfall fees.” Id. at 1139. The Court can accomplish this “by making specific deductions or ‘by making an across-the-board reduction in the amount of hours.'” Danaher Corp, 2015 WL 409525, at *3 (quoting Luciano v. Olsten Corp., 109 F.3d 111, 117 (2d Cir. 1997)).
Here, plaintiff has submitted contemporaneous time records demonstrating that Mr, Valletti expended 48.95 hours on this litigation. Dkt. #59-3; Dkt. #59-1, ¶ 8. The hours are adequately documented, and I am persuaded that compensation for all of these hours is justified -with one exception: two entries reflect travel time to and from the White Plains courthouse (3.0 hours total billed at $385 per hour). Dkt. #59-3, at 4 (ECF pagination). “Courts in this District have held that time charged by an attorney for travel will be reimbursed at half of the attorney's hourly rate.” Altman v. Inc. Vill. of Lynbrook, No. 18 Civ. 4984, 2022 WL 3340623, at *7 (E.D.N.Y. Aug. 11,2022) (quotation marks and citation omitted) (report and recommendation). See B.C. v. New York City Dep't of Educ. No. 21 Civ. 2840, 2022 WL 3214374, at *7 (S.D.N.Y. Aug. 9, 2022) (the court “abides by recent decisions” and assigns a 50% reduction in hourly rate to travel time). I conclude, and respectfully recommend, that plaintiffs attorney's fees for travel time should be reduced by 50% in this case, resulting in the subtraction of 1.5 hours from the total hours billed at $385 per hour. Accordingly, I respectfully recommend that plaintiff be awarded attorney's fees in the amount of $17,239.25, calculated as follows:
29.4 hours @ $350/hour = $10,290.00 1
8.05 hours @ $385/hour = $6,949.25
$10,290.00 + $6,949,25 = $17,239.25
3. Costs
“Both the FLSA and NYLL entitle prevailing plaintiffs in wage-and-hour actions to recover costs.” Espinoza, 2021 WL 7903991, at *14. Here, plaintiff seeks an award of costs in the amount of $1,928.40, including a $402.00 filing fee, $1,327.00 in process server fees and $ 175.00 for investigative services (to locate and confirm defendants). Plaintiff provides documentation substantiating these costs. Dkt. #59-4. Plaintiff also seeks reimbursement for the following costs: $5.15 for mailing out an intent letter to sue; $9.25 for the train to NYC to meet with the client and two witnesses; $8.00 for service of the OSC on defendants by mail; and $2.00 for service of updated conference date on all defendants. Dkt. #59-3, at 4-5. However, plaintiff fails to submit any underlying documentation supporting that these fees were incurred. Therefore, I respectfully recommend that $24.40 in requested costs are not compensable. Accordingly, I respectfully recommend that plaintiff be awarded costs in the amount of $1,904.00.
VI. CONCLUSION
For the reasons stated above, I conclude-and respectfully recommend Your Honor should conclude-that plaintiff be awarded damages against the defaulting defendants in the total amount of $164,669.15, consisting of:
1. Unpaid overtime wages in the amount of $65,280.00;
2. Liquidated damages in the amount of $65,280.00;
3. Statutory damages for wage statement violations in the amount of $5,000.00;
4. Prejudgment interest in the amount of $9,965.90;
5. Attorney's fees in the amount of $17,239.25; and
3. Costs in the amount of $ 1.904.00.
Plaintiffs counsel is directed to serve a copy of this Report and Recommendation on defendants and file proof of service promptly.
NOTICE
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 and Recommendation to serve and file written objections. See also FED. R. CIV. P. 6(a). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti, at the Honorable Charles L. Brieant Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Briccetti.