Opinion
1:21-cv-08014 (VSB) (SDA)
08-21-2022
Mario Leon et al., Plaintiffs, v. AYG Framing Construction LLC et al., Defendants.
HONORABLE VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
By Order dated March 24, 2022, the Court granted Plaintiffs' motion for a default judgment in this wage-and-hour suit brought under the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”), and this case was referred to me for an inquest on damages. (3/24/22 Order, ECF No. 42; Order of Ref., ECF No. 43.) For the reasons set forth below, I respectfully recommend that the Court enter judgment against Defendants AYG Framing Construction LLC (“AYG”) and Adriano E. Moreira (“Moreira” and, together with AYG, the “Defendants”), as set forth in the Conclusion below.
BACKGROUND
I. Established Facts As A Result Of Defendants' Default
In light of Defendants' default, the Court is required to accept all of Plaintiffs' allegations as true, except for those pertaining to damages. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).
Defendant AYG is a corporation, with its main business at 55 Ridgeway Avenue, Hillside, New Jersey 07205. (Compl., ECF No. 1, ¶ 30.) Defendant Moreira is the owner and operator of AYG. (Id. ¶¶ 27-29.) Defendant AYG operated construction projects throughout the New York City metropolitan area, including projects in Manhattan, Queens and Brooklyn in New York state as well as projects in Newark, New Jersey. (Id. ¶ 31.) Defendants jointly employed Plaintiffs. (Id. ¶¶ 32-33.)
Plaintiffs Mario Leon (“Leon”), Rigoberto Naula (“Naula”), Robinson Stalin Ulgo (“R. Ulgo”), Segundo Ricardo Hulgo (“Hulgo”), Segundo Manuel Ulgo (“S. Ulgo”), Segundo Santiago Calapina (“Calpina”) and Jheferson Guaman (“Guaman”) (collectively, the “Plaintiffs”) were employed by Defendants as construction workers from May 31, 2021 to July 12, 2021. (Compl. ¶¶ 6-26, 36-37.) Plaintiffs worked for on constructions projects throughout New York City (Id. ¶ 37.) During the period from May 31, 2021 to July 12, 2021, Plaintiffs each worked five to six days a week, Monday to Friday and occasionally on Saturdays, from 7:00 a.m. to 3:00 p.m., and were each compensated $230.00 per day. (Leon Decl., ECF No. 50, ¶¶ 12-13; S. Ulgo Decl., ECF No. 51, ¶¶ 12-13; Guaman Decl., ECF No. 52, ¶¶ 12-13; Naula Decl., ECF No. 53, ¶¶ 12-13; R. Ulgo Decl., ECF No. 54, ¶¶ 12-13; Hulgo Decl., ECF No. 55, ¶¶ 12-13; Calapina Decl., ECF No. 56, ¶¶ 12-13; Compl. ¶¶ 38-42.)
During their employment, Plaintiffs were not compensated one-and-one-half times the greater of the minimum wage or their hourly wage for all hours worked above 40 in each workweek, nor were Plaintiffs compensated for their earned wages for work performed from June 7, 2021 through June 13, 2021; from June 14, 2021 through June 20, 2021; from June 21, 2021 through June 27, 2021; from June 28, 2021 through July 4, 2021; or from July 5, 2021 through July 12, 2021. (Leon Decl., ECF No. 50, ¶¶ 20-21; S. Ulgo Decl., ¶¶ 20-21; Guaman Decl., ¶¶ 20-21; Naula Decl., ¶¶ 20-21; R. Ulgo Decl., ¶¶ 20-21; Hulgo Decl., ¶¶ 20-21; Calapina Decl., ¶¶ 20-21; Compl. ¶¶ 41-44.) After Plaintiffs' employment ended, Defendant Moreira instructed Plaintiffs to come to his office to receive checks for their work; however, the checks were rejected due to insufficient funds. (Leon Decl., ¶¶ 15-19; S. Ulgo Decl., ¶¶ 15-19; Guaman Decl., ¶¶ 1519; Naula Decl., ¶¶ 15-19; R. Ulgo Decl., ¶¶ 15-19; Hulgo Decl., ¶¶ 15-19; Calapina Decl., ¶¶ 1519; Compl. ¶¶ 45-46.)
When they commenced work with Defendants, Plaintiffs did not receive a notice in English and/or their primary language reflecting their rate of pay and, during the term of their employment, did not receive each payday a paystub that listed their names; their employer's name, employer's address and telephone number; their rate or rates of pay; any deductions made from their wages; any allowances claimed as part of the minimum wage; and their gross and net wages. (See Leon Decl., ¶¶ 9-10; S. Ulgo Decl., ¶¶ 9-10; Guaman Decl., ¶¶ 9-10; Naula Decl., ¶¶ 9-10; R. Ulgo Decl., ¶¶ 9-10; Hulgo Decl., ¶¶ 9-10; Calapina Decl., ¶¶ 9-10; Compl. ¶¶ 80, 84.)
II. Procedural History
The Complaint in this action was filed on September 27, 2021. (See Compl., ECF No. 1.) The Complaint was served upon Defendant AYG on October 1, 2021 and was served upon Defendant Moreira on October 11, 2021. (See Certs. of Service, ECF Nos. 11, 21.) After Defendants failed to appear in and/or defend this action, the Clerk of Court entered Certificates of Default against the Defendants. (Certs. of Default, ECF Nos. 19, 24.) Thereafter, on March 24, 2022, District Judge Broderick entered a default judgement against Defendants, and referred this action to me for an inquest on damages. (See 3/24/22 Order; Order of Ref.)
On May 3, 2022, Plaintiffs filed their memorandum of law and supporting documents. (See Pls.' Mem., ECF No. 58; Leon Decl.; S. Ulgo Decl.; Guaman Decl.; Naula Decl.; R. Ulgo Decl.; Hulgo Decl.; Calapina Decl.; Aronauer Decl., ECF Nos. 49, 57.) Defendants' response was due no later than May 31, 2022 (see 5/4/22 Order, ECF No. 59), but no response was filed. On May 24, 2022 and July 7, 2022, the Court entered Orders directing Plaintiffs to file revised calculations of damages. (See 5/24/22 Order, ECF No. 61; 7/7/22 Order, ECF No. 66.) In response, Plaintiff filed three revised damages calculations. (See 6/27/22 Revised Damages Calculations, ECF No. 65-1; 7/25/22 Revised Damages Calculations, ECF No. 69-1; 8/18/22 Revised Damages Calculations, ECF No. 71-1.) The Court relies on Plaintiffs' 8/18/22 Revised Damages Calculations in making its recommendation herein.
DISCUSSION
I. Burden Of Proof
Since a default judgment has been entered in Plaintiffs' favor, the only remaining issue is the amount of damages to which they are entitled. Plaintiffs bear the burden of establishing their entitlement to recovery and thus must substantiate their claims with evidence to prove the extent of their damages. See, e.g., Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992).
Although the Court may hold a hearing to assess damages, a hearing is not required when a sufficient basis on which to make a calculation exists. See Fed.R.Civ.P. 55(b)(2); see also Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (quoting Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991)). Indeed, the Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, “as long as [the Court] ensured that there was a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (citation omitted). Here, I rely on Plaintiffs' inquest-related submissions, which contain a sufficient evidentiary basis to determine Plaintiffs' damages.
An employee seeking to recover unpaid wages has the burden of proving that he performed work for which he was not properly compensated. See Angamarca v. Pita Grill 7 Inc., No. 11-CV-07777 (JGK) (JLC), 2012 WL 3578781, at *3 (S.D.N.Y. Aug. 2, 2012). An employer is required to maintain “records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him ....” 29 U.S.C. § 211(c); see also 12 N.Y. Compilation Codes R. & Regs. (“NYCRR”) § 146-2.1. Absent such documentation, an employee may establish his right by relying on his recollection alone. An affidavit or declaration that sets forth the number of hours worked is sufficient. See Angamarca, 2012 WL 3578781, at *3.
Once an employee has presented his evidence, an employer then may “come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.” Angamarca, 2012 WL 3578781, at *4 (internal citations and quotations omitted). “If the employer fails to do so, the court may enter judgment in the employee's favor, using [his] recollection to determine damages, even though the result be only approximate.” Id. Because Defendants have defaulted, Plaintiffs' representations as to the dates and hours they each worked will be credited and their damages calculated on that basis.
II. Plaintiffs' Unpaid Minimum And Overtime Wages
Plaintiffs were not compensated for work performed from June 7, 2021 through June 13, 2021 and from June 21, 2021 through July 12, 2021. Moreover, they were not paid overtime at the rate of one-and-a-half times their regular rate for the weeks ending June 27, 2021, July 4, 2021 and July 11, 2021, during which periods Plaintiffs worked more than 40 hours per week by working on Saturdays.
A. Minimum Wage
The NYLL in Article 19, § 650 et seq., upon which Plaintiffs rely in their operative pleading (see Compl. at ¶ 50-51), permits recovery for minimum wage, NYLL § 652, but contains no provision for recovery of unpaid straight time. See Williams v. Epic Security Corp., 358 F.Supp.3d 284, 302 (S.D.N.Y. 2019) (“The NYLL in Article 19, § 650 et seq., upon which Plaintiffs rely in their operative pleading . . . permits recovery for minimum wage, NYLL § 652, but contains no provision for recovery of unpaid straight time.”) (citing McGlone v. Contract Callers Inc., 114 F.Supp.3d 172, 173 (S.D.N.Y. 2015) (holding, in refusing to award damages at plaintiffs' regular rate for nonovertime hours, “[t]he provisions of Article 19 do not specify any relief that is greater than the minimum wage.”)). Thus, Plaintiffs are entitled to the New York minimum wage of $15.00 per hour for unpaid time up to 40 hours during the weeks in question.
Plaintiffs initially sought unpaid earned wages at their regular weekly rate. (See 5/3/22 Damages Calculations, ECF No. 49-1.) However, following two Orders issued by the Court directing Plaintiffs to explain why their calculations were consistent with the NYLL, Plaintiffs submitted revised damages calculations apparently conceding that Plaintiffs only are entitled to unpaid earned wages at the New York minimum wage rate. (See 8/18/22 Revised Damages Calculations, ECF No. 71-1.)
B. Overtime
Under the FLSA, employees must be paid one-and-one half times their regular rate for each hour worked over forty (40) hours in a week. See 29 U.S.C. § 207(a)(1). New York's rules on overtime explicitly incorporate those of the FLSA, and thus require pay at one-and-one-half times the regular rate for each hour over forty hours worked in a week. See 12 NYCRR § 142-2.2. In cases where the regular rate is less than minimum wage, overtime is calculated by multiplying the statutory minimum wage by 1.5. See Baltierra v. Advantage Pest Control Co., No. 14-CV-05917 (AJP), 2015 WL 5474093, at *5 (S.D.N.Y. Sept. 18, 2015).
Where an employee receives a straight weekly salary, there is a rebuttable presumption under the FLSA that their salary covers 40 hours worked. Therefore, to determine the regular rate, their weekly salary is divided by 40 hours. See Cabrera v. New York Fresh Meat Inc., No. 15-CV-01325 (JGK) (SDA), 2018 WL 3300647, at *6 (S.D.N.Y. Mar. 29, 2018), report and recommendation adopted, 2018 WL 2192187 (S.D.N.Y. May 14, 2018). Then, to determine their unpaid overtime, their regular hourly rate is multiplied by 1.5 to determine the overtime rate they should have received. Id.
Plaintiffs submitted to the Court a revised spreadsheet that reflects the amounts of unpaid earned and overtime wages that Plaintiffs contend are due to them. (See 8/18/22 Revised Damages Calculations.) The Court finds the calculations set forth in Plaintiffs' revised calculations with respect to unpaid earned wages and overtime to be sound.
Plaintiffs calculated the unpaid earned wages due for each relevant period by multiplying the statutory minimum wage of $15.00 per hour by 40 hours per week. Plaintiffs calculated overtime wages due for each relevant period by multiplying (i) 1.5 times the regular hourly rate wage for that period, times (ii) the overtime hours Plaintiffs worked per week during that period.
Accordingly, Plaintiffs Leon, S. Ulgo, Guaman, Naula, R. Ulgo, Hulgo and Calapina each are entitled to the sum of $3,435.00 in unpaid earned wages and overtime wages.
III. Liquidated Damages
Plaintiffs are entitled to liquidated damages under both the FLSA and NYLL because the FLSA and NYLL each would apply to different violations (i.e., Plaintiffs are seeking unpaid earned wages under the NYLL and overtime wages under the FLSA). (See 8/18/22 Revised Damages Calculations.)
In Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59 (2d Cir. 2016), a non-precedential panel opinion of the Second Circuit refused to permit an award of liquidated damages under both the FLSA and the NYLL for the same violation, because it would amount to “double recovery.” Id. at 60-61. Plaintiffs are not seeking such a double recovery in this case.
The FLSA entitles Plaintiffs to liquidated damages for their unpaid overtime wages because Defendants have failed to show that they acted in good faith or that the Court should decline its discretion in granting liquidated damages. See 29 U.S.C. § 260. Under the FLSA, “[a]ny employer who violates the provisions of . . . section 207 . . . shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). The NYLL entitles Plaintiffs to liquidated damages for their unpaid earned wages because Defendants' wage violations were “willful.” NYLL §§ 198(1-a), 663(1). NYLL § 663(1) provides that Plaintiff is entitled to “liquidated damages equal to one hundred percent of the total of such underpayments found to be due.”
Plaintiffs are entitled to liquidated damages on the total amounts of unpaid overtime wages under the FLSA and the total amounts of unpaid earned wages under the NYLL in an amount equaling 100% of the total amounts due. Thus, the Court finds that Plaintiffs Leon, S. Ulgo, Guaman, Naula, R. Ulgo, Hulgo, and Calapina each are entitled to liquidated damages under the FLSA in the amount of $1,035.00 and liquidated damages under the NYLL in the amount of $2,400.00, for a total of $3,435.00 in liquidated damages under both the FLSA and NYLL.
IV. Wage Notice and Statement Violations
Plaintiffs seek to recover damages for Defendants' failure to provide regular wage statements and annual wage notices as required by NYLL §§ 195(1), 195(3). (Pls.' Mem. at 11-18.) Since Plaintiffs did not receive wages notices or statements, they each are entitled to statutory damages in the maximum amount of $5,000.00 under each section, for a total of $10,000.00. See Cabrera, 2018 WL 3300647, at *7-8.
V. Attorneys' Fees and Costs
Plaintiffs seek $8,076.40 in attorneys' fees and $530.00 in costs, pursuant to 29 U.S.C. § 216(b) and NYLL §§ 198(1-a), 663(1). (Pls.' Mem. at 18-21.) Under the FLSA and NYLL, a prevailing party is entitled to recover reasonable attorneys' fees and costs. See 29 U.S.C. § 216(b); NYLL §§ 198(1-a), 663. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
While a district court retains discretion to determine what constitutes a reasonable fee, “this discretion is not unfettered.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). “[W]hen a prevailing party is entitled to attorneys' fees, the district court must abide by the procedural requirements for calculating those fees articulated by [the Second Circuit] and the Supreme Court.” Id. “Both [the Second Circuit] and the Supreme Court have held that the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a ‘presumptively reasonable fee.'” Id. (citations omitted). This approach is intended to “produce[] an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (citations and emphasis omitted); see also Bergerson v. N.Y. State Office of Mental Health, 652 F.3d 277, 289-90 (2d Cir. 2011) (“A reasonable hourly rate is what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.”) (internal quotation marks and citations omitted).
A reasonable rate is generally the “prevailing market rate[] for counsel of similar experience and skill to the fee applicant's counsel.” Farbotko v. Clinton County, 433 F.3d 204, 209 (2d Cir. 2005). In deciding what constitutes a reasonable rate, a court may consider “rates awarded in prior cases and the court's own familiarity with the rates prevailing in the district.” Id. “The relevant community to which the court should look is the district in which the case was brought.” Marisol A. ex rel. Forbes v. Giuliani, 111 F.Supp.2d 381, 386 (S.D.N.Y. 2000).
In calculating the reasonable number of hours expended “the court takes account of claimed hours that it views as ‘excessive, redundant, or otherwise unnecessary.'” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434). In addition, “[c]ourts regularly reduce the rate billed by attorneys for work done on administrative or clerical tasks,” and “[a]ttorneys engaged in clerical tasks should be compensated at the rate for clerical employees, or, if the task at issue is the type included in overhead, they should not be compensated at all.” Shabazz v. City of N.Y., No. 14-CV-06417, 2015 WL 7779267 (GHW), at *4 (S.D.N.Y. Dec. 2, 2015) (internal quotation marks omitted).
A. Reasonable Hourly Rates
The Law Offices of Jacob Aronauer represents Plaintiffs. Plaintiffs seek to recover fees for work performed by attorney Jacob Aronauer (“Aronauer”) at $415.00 per hour. (See Pls.' Mem. at 20.) Plaintiffs also seeks to recover fees for work performed by paralegal Sian Ricketts, at $165.00 per hour; paralegal Maria Rojas, at $165.00 per hour; paralegal Karin Weston, at $165.00 per hour; paralegal Alicia Mitre, at $165.00 per hour; paralegal Roosevelt Ettienne, at $165.00 per hour; paralegal Michael Terlizzi, at $165.00 per hour; paralegal Corey Shotwell, at $165.00 per hour; and paralegal Elizabeth Heit, at $165.00 per hour. (See id at 21.) Having considered all the facts and circumstances, the Court finds that the foregoing hourly rates are reasonable. See Perez v. Rossy's Bakery & Coffee Shop, Inc., No. 19-CV-08683 (SLC), 2021 WL 1199414, at *11 (S.D.N.Y. Mar. 30, 2021) (examining in context of FLSA and NYLL claims for unpaid wages and overtime background and experience of Aronauer and paralegals at The Law Offices of Jacob Aronauer and finding Aronauer's prior hourly rate of $400 and paralegals' prior hourly rate of $150 to be reasonable).
Aronauer raised his rate and the rate of the paralegals at his firm as of January 2022. (See Aronauer Decl., ECF No. 49, ¶¶ 30, 32.) Thus, the Court finds that the nominal increases in hourly rates from those approved in Perez are justified.
B. Reasonable Hours Expended
Plaintiff submitted a copy of an invoice setting forth the hours worked on this case. (Invoice, ECF No. 49-1, at 32-34.) Having reviewed the invoice containing contemporaneous time entries, as well as Plaintiffs' supplemental submissions, the Court finds the hours expended to be reasonable. See Perez, 2021 WL 1199414, at *11 (finding billing records reflected reasonable tasks performed within reasonable amount of time and that Aronauer delegated many tasks to paralegals, demonstrating efficiency).
C. Costs
Finally, Plaintiffs seeks recovery of their costs. (See Aronauer Decl. ¶ 25; Invoice.) Pursuant to the NYLL, an employee who prevails in a wage-and-hour action is entitled to recover costs. NYLL § 663(1). The Court finds the expenses reflected in the invoice filed with the Court to be reasonable.
Accordingly, the Court finds that Plaintiffs should recover $8,076.40 in attorneys' fees and $530.00 in costs, for a total of $8,606.40.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Court enter judgment in favor of each of Leon, S. Ulgo, Guaman, Naula, R. Ulgo, Hulgo, and Calapina against Defendants AYG and Moreira, jointly and severally, in the amount of $16,870.00 (consisting of $3,435.00 in unpaid earned wages and overtime wages; $3,435.00 in liquidated damages; and $10,000.00 for wage notice and statement violations), for a total sum of $118,090.00, as requested in Plaintiffs' latest submission (ECF No. 71-1). I further recommend that Plaintiffs be awarded the of $8,606.40 in attorneys' fees and costs.
No later than August 24, 2022, Plaintiffs' counsel shall mail copies of this Report and Recommendation to Defendants at 55 Ridgeway Avenue, Hillside, New Jersey 07205 (which is the main address for AYG and the address where Moreira was served), and promptly thereafter shall file proof of service.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).