Ahmed v. Subzi Mandi, Inc.

Full title: ALINA AHMED f/k/a Ruchi Diwan Plaintiffs, v. SUBZI MANDI, INC. and Jagir…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: May 27, 2014

13-CV-3353 (CBA) (RER) (E.D.N.Y. May. 27, 2014)

Opinion

13-CV-3353 (CBA) (RER)

05-27-2014

ALINA AHMED f/k/a Ruchi Diwan Plaintiffs, v. SUBZI MANDI, INC. and Jagir Singh, Defendants.

RAMON E. REYES, JR., U.S.M.J.

REPORT & RECOMMENDATION

RAMON E. REYES, JR., U.S.M.J. :

TO THE HONORABLE CAROL BAGLEY AMON, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Alina Ahmen f/k/a Ruchi Diwan ("Ahmen" or "Plaintiff") brought this action against Subzi Mandi, Inc. ("Subzi") and Jagir Singh ("Singh") (collectively, "Defendants") to, inter alia, recover damages, including unpaid wages, overtime compensation, spread of hours pay, liquidated damages, prejudgment interest, post-judgment interest, costs and attorney's fees pursuant for violations of the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. §§ 206, 207, 216(b); New York Labor Law ("NYLL") §§ 198, 633, 652, 662; and New York Codes, Rules and Regulations ("NYCCR") title 12, §§ 142-2.2, 142-2.4. (See generally Dkt. No. 1 ("Compl.").)

On August 16, 2013 Plaintiff requested a Certificate of Default for Defendants. (Dkt. No. 6.) The Clerk of the Court entered default on October 11, 2013 (dkt. entry dated 10/11/2013) and Plaintiff subsequently requested a Certificate of Default on October 15, 2013 (dkt. no. 8). On November 1, 2013, Plaintiff filed this instant motion for default judgment against the Defendants. (Dkt. No. 9.) Your Honor subsequently referred Plaintiff's motion to me for a report and recommendation. (Dkt. Entry Dated 11/4/2013.)

For the reasons stated herein, I respectfully recommend that Plaintiff's motion be granted and default judgment be entered against Defendants in the amount of (1) $24,788.12 in damages, comprising of $6696.55 in unpaid compensation and $13,139.35 in liquidated damages; (2) prejudgment interest in the amount of $32.22 plus $0.06 per diem from today until entry of final judgment; (3) post-judgment interest; and (4) $4470.00 in attorney's fees and $450.00 in costs.

BACKGROUND

Plaintiff worked for Defendants from approximately August 6, 2012 through April 7, 2013. (Dkt. No. 9, Exh. 4 ("Pl. Aff.") ¶¶ 2-3.) Plaintiff was a cashier at Defendant's Indian foods supermarket. (Id. ¶ 4.) Plaintiff typically worked six days a week for three weeks out of the month and seven days a week once a month. (Id. ¶ 5.) Plaintiff worked from 2:00 p.m. to 10:00 p.m. four days a week, 10:00 a.m. to 10:00 p.m. one day a week, and 2:00 p.m. to 12:00 a.m. one day a week. (Id.) On weeks Plaintiff worked seven days, she worked from 2:00 p.m. to 10:00 p.m. on the seventh day. (Id.) Plaintiff worked an average of fifty-six hours a week. (Id.) She was never provided a meal or any other type of break. (Id. ¶ 6.) Plaintiff was always paid in cash and never received any pay stubs or written documentation of her wages. (Id. ¶ 7.)

Defendants paid Plaintiff $5.00 per hour. (Id. ¶ 10.) Plaintiff did not pay overtime compensation when she worked more than forty hours per week or spread of hours pay for any day where she worked over ten hours. (Id. ¶¶ 8-9.) After working for Defendants for approximately thirty-five weeks, Plaintiff was terminated on April 7, 2013. (Id. ¶¶ 3, 10.) Plaintiff subsequently initiated this action on June 12, 2013. (Compl.)

DISCUSSION

I. Liability

A. FLSA

As an initial matter, this Court must determine that Plaintiff has adequately pled the requirements of liability under the FLSA and the NYLL. Upon entry of default, defendants concede all well-pleaded factual allegations of liability, except those related to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations omitted). In order to make a prima facie showing of a violation under the minimum wage and overtime provisions of the FLSA, Plaintiff must adequately allege that she was an employee covered under the FLSA.

An employee is defined by the FLSA to mean "any individual employed by an employer." 29 U.S.C. § 203(e)(1). The FLSA defines an employer to "include[] any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." Id. § 203(d). Under the FLSA, employers have an obligation to pay minimum wage and overtime compensation to employees who are "engaged in commerce or the production of goods for commerce" or "employed in an enterprise engaged in commerce or in the production of goods for commerce." Id. §§ 206(a), 207(a). The enterprise must also have no less than $500,000 in annual gross volume of business done. Id. § 203(s)(1)(A)(ii). Plaintiff has adequately alleged that she was an employee within the definition in the FLSA. (See Compl. ¶¶ 4, 8, 13.)

She also alleges that Defendants were "engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA" and "at all relevant times . . . had annual gross revenues in excess of $500,000," such that Plaintiff adequately alleges that the Defendants are an "enterprise engaged in commerce." (Id. ¶ 15.) Consequently, Plaintiff is a covered employee under the FLSA.

The FLSA's minimum-wage provision states that "[e]very employer shall pay to each of his employees . . . not less than . . . $7.25 an hour . . ." 29 U.S.C. § 206(a)(1)(C). In her complaint, Plaintiff alleges that at all times she worked for Defendants she was paid $5.00 an hour. (Compl. ¶ 10.) She further alleges that "Defendants knowingly and willfully failed to pay [Plaintiff] minimum wages . . . ." (Id. ¶ 11.) Plaintiffs has, therefore, sufficiently pled a violation of the minimum-wage provision of the FLSA.

Overtime compensation under the FLSA is one and one-half times the regular pay rate for each hour worked over forty hours in any given workweek. 29 U.S.C. § 207(a)(1). Plaintiff alleges that she worked an average of fifty-six hours per week, but "was paid $5.00 per hour for each hour she worked regardless of the number of hours she worked each week." (Compl. ¶¶ 9-10.) Because the Complaint alleges that Plaintiff worked more than forty hours per week and was not paid time-and-a-half for those overtime hours, Plaintiff has sufficiently pleaded a violation of 29 U.S.C. § 207. (See id. ¶¶ 9-11.)

B. NYLL

The NYLL defines an employee as "any individual employed or permitted to work by an employer in any occupation,"N.Y. LAB. LAW § 651(5), with some exceptions, and an employer as "any individual, . . . corporation, . . . or any organized group of persons acting as employer," N.Y. LAB. LAW § 651(6). The minimum wage provision of the NYLL specifies that "[e]very employer shall pay to each of its employees for each hour worked a wage of not less than" the wage established by statute for that year." Id. § 652(1). The minimum wage rate under the NYLL during the period of Plaintiff's employment was $7.15 per hour, however the statute directs employees be paid "such other wage as may be established by federal law pursuant to 29 U.S.C. section 206 or its successors" if it is greater than the minimum wage set by the NYLL. Id. The NYLL further provides that "[i]f any employee is paid by his or her employer less than the wage to which he or she is entitled . . . he or she shall recover in a civil action . . . ." Id. § 663(1). Additionally, under the NYCRR, "[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate." N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.2.

Plaintiff sufficiently alleges that at all relevant times Defendants were employers and she was an employee within the meaning of the NYLL. (Compl. ¶ 24.) Again, Plaintiff alleges that she was paid $5.00 per hour for each hour she worked, far below the NYLL rate of $7.15 and the adopted FLSA rate of $7.25. (Id. ¶ 10.) Because the complaint alleges that "Defendants knowingly and willfully failed to pay [Plaintiff] minimum wages . . . in direct contravention of the . . . [NYLL]," Plaintiff has adequately pleaded a violation of NYLL § 652. (Id. ¶ 11.)

NYLL's overtime provision specifies that eight hours constitutes a "legal day's work," N.Y. LAB. LAW § 160, and that "[a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate . . . ." N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.2. NYLL's spread-of-hours provision requires that an employee receive "one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage . . ." for any day the employee works ten or more hours. Id. § 142-2.4(a). Plaintiff alleges that despite working an average of fifty-six hours per week, she "was paid $5.00 per hour for each hour that she worked regardless of the number of hours she worked each week." (Compl. ¶¶ 9-10.) She further alleges that approximately once a week she worked one ten-hour day and one twelve-hour without being paid an additional hour at the minimum wage rate for the days in which she worked more than ten hours. (Compl. ¶¶ 9-10, 27.) Plaintiff has, therefore, sufficiently pleaded violations of these provisions.

C. Joint and Several Liability

Persons under the FLSA include individuals and corporations. 29 U.S.C. § 203(a). Plaintiff seeks to have Singh, the individual Defendant, held jointly and severally liable with Subzi, the corporate Defendant, for the damages awarded because each Defendant can be considered an "employer" under both the FLSA and the NYLL.¹

1 While the New York Court of Appeals has not yet resolved whether the NYLL standard for employer status is coextensive with the FLSA standard, I will follow the weight of authority within this Circuit and apply the same analysis to both statutes. See Irizarry v. Catsimatidis, 722 F.3d 99, 117 (2d Cir. 2013); Hart v. Rick's Cabaret Int'l, 967 F. Supp. 2d 901, 940 (S.D.N.Y. 2013); Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184, 189 (S.D.N.Y. 2003).

To be held liable under the FLSA, a person must be an "employer," which § 3(d) of the statute defines broadly as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d) (1994). The Supreme Court has emphasized the "expansiveness" of the FLSA's definition of employer. Falk v. Brennan, 414 U.S. 190, 195, 94 S. Ct. 427, 38 L. Ed. 2d 406 (1973). Above and beyond the plain language, moreover, the remedial nature of the statute further warrants an expansive interpretation of its provisions so that they will have "the widest possible impact in the national economy." Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984).

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). In order to determine whether the alleged employer possessed the power to control a worker, the "economic reality" test is employed, which exams factors, including: "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." Carter, 735 F.2d at 12 (quoting Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983) (internal quotation marks omitted)). None of these factors alone are dispositive. See Brock v. Superior Care, 840 F.2d 1054, 1059 (2d Cir. 1988).

Plaintiff alleges that during her employment "Defendant Jagir Singh was and still is the owner of Subzi, and as such participated in the day-to-day operations of the business[, such that] Singh is jointly and severally liable with Subzi to Plaintiff for her unpaid minimum wages, overtime, and spread of hours pay." (Compl. ¶ 6.) In her affidavit Plaintiff explains that Singh "would work with the bookkeeping staff, review the bills and receipts, and prepare the payroll," as well as "order [Plaintiff] to come to work early or stay late." (Pl. Aff. ¶ 11.) Furthermore, Plaintiff claims that Singh could fire her and "was the person who handed [her] and the other workers [their] salary . . . ." (Id.) Such allegations, coupled with Defendants' default, suffice to establish that Singh qualifies as Plaintiffs' "employer" under the FLSA and NYLL, and imposes joint and several liability on him with Subzi. See Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 128-29 (E.D.N.Y. 2011) (holding allegations that individual had authority over personnel and payroll decisions and authority to hire and fire employees adequate to impose joint and several liablility); Ting Yao Lin v. Hayashi Ya II, Inc., 08- CV-6071 (SAS) (AJP), 2009 WL 289653 (S.D.N.Y. Jan. 30) (imposing joint and several liability pursuant to both FLSA and NYLL), adopted by, 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009).

II. Damages

Having shown liability by virtue of Defendants' default, Plaintiff's claim for damages must be established so that the Court may ensure that there is a proper basis to enter judgment in the amount demanded. See Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). A court may make this determination based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence. See FED. R. CIV. P. 55(b)(2); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991) (citations omitted); id. Since both the FLSA and the NYLL are compensatory in nature, double recovery may result if unpaid wages are awarded for the same hours worked under both the federal and the state law. Blue v. Finest Guard Servs., Inc., No. 09-CV-133 (ARR), 2010 WL 2927398, at *6 n.11 (E.D.N.Y. June 24) (citation omitted), adopted by, 2010 WL 2927403 (E.D.N.Y. Jul. 19, 2010). The statute of limitations for each claim will thus dictate under which law a claimant will be entitled to recovery. The statute of limitations for the FLSA claims is two or three years depending upon whether the violation was willful. 29 U.S.C. § 255(a). The NYLL statute of limitations is six years. N.Y. LAB. LAW §§ 198(3), 663(3). Because Plaintiff's earliest allegation of unpaid wages is for August 1, 2012, her claim falls entirely within the FLSA statute of limitations and is entitled to damages under same.

A. Unpaid Compensation

An employee bringing an action for unpaid wages bears the burden of proving that she was not compensated for work performed. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds, 29 U.S.C. § 252. Under both the FLSA and the NYLL, an employer must maintain accurate records of an employee's hours. 29 U.S.C. § 211(c); N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.6. However, when an employer's records are inadequate, an employee may meet this burden by producing "sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 388 (E.D.N.Y. 2007) (quoting Anderson, 328 U.S. at 687). A plaintiff-employee may meet this standard solely through his or her own recollection. Rivera, 497 F. Supp. 2d at 388 (citing Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005)).

In support of a damages award, Plaintiff submitted an affidavit, which describes her period of employment, average days per week worked, average hours, and wages paid. (See generally Pl. Aff.) Plaintiff seeks a total of $24,775.90 from Defendants, comprising of $6442.80 in back pay, $253.75 in spread of hours pay, $6442.80 in liquidated damages under the FLSA, $6696.55 in liquidated damages under the NYLL, $20.00 in prejudgment interest, $450.00 in costs, and $4470.00 in attorney's fees. (Dkt. No. 9 ¶¶ 8-14, 21.)

1. Unpaid Regular Wages

Plaintiff explains in her affidavit that during her thirty-five weeks of employment by Defendants, she worked an average of fifty-six hours a week and was paid $5.00 per hour at all times. (Pl. Aff. ¶¶ 5, 7, 10.) Under the FLSA, "[e]very employer shall pay to each of his employees . . . not less than . . . $7.25 an hour . . . ." 29 U.S.C. § 206(a)(1)(C); see also § 207(a)(1). Plaintiff was, therefore, underpaid $2.25 per hour for her first forty hours of work per week, or $90.00 per week ($2.25 per hour * 40 hours). Accordingly, Plaintiff is due $3150.00 in unpaid regular wages under the FLSA for the thirty-five weeks that she was employed by Defendants.

2. Unpaid Overtime Compensation

Plaintiff also claims that she was never paid over $5.00 per hour, even when she worked over forty hours a week. (Pl. Aff. ¶ 8.) Section 207(a)(1) of the FLSA states that for a workweek longer than forty hours, overtime compensation should be "at a rate not less than one and one-half times the regular rate at which he is employed." Overtime pay is determined by multiplying the hours an employee works in excess of forty by one and one-half her regular rate of pay. One and one-half times the minimum wage, $7.25, is $10.88. Plaintiff explains in her affidavit that she worked an average of fifty-six hours a week, which means she worked an average of sixteen hours in excess of forty. Plaintiff was underpaid $5.88 per hour for these hours in excess of her first forty hours of work per week, or $94.08 per week ($5.88 per hour * 16 hours). Accordingly, Plaintiff is due $3292.80 in unpaid overtime compensation under the FLSA for the thirty-five weeks she was employed by Defendants.

3. Unpaid Spread-of-Hours Compensation

Plaintiff further explains in her affidavit that she was never paid an extra hour at minimum wage for the one day per week she worked for over ten hours. (Pl. Aff. ¶ 9.) NYLL's spread-of-hours provision requires that an employee receive "one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage rate" for any day the employee works over ten hours. N.Y. COMP. CODES R. & REGS. tit. 12, § 142-2.4(a). She is therefore entitled to an additional hour of pay at minium wage for each of those days that she worked ten or more hours or $253.75 ($7.25 * 35 weeks). Therefore, I respectfully recommend that Plaintiff is due a total of $6696.55, consisting of $3150.00 in unpaid regular wages under the FLSA, $3292.80 in unpaid overtime compensation under the FLSA, and $253.75 in unpaid NYLL spread-of-hours compensation.

B. Liquidated Damages

Plaintiff also seeks liquidated damages against Defendants under both the FLSA and the NYLL. Plaintiff is entitled to liquidated damages under both the FLSA and the NYLL for the same time period because the liquidated damages provisions of each statute seek to vindicate a different type of wrong. See Eschmann v. White Plains Crane Serv., Inc., No. 11-CV-5881 (KAM) (VVP), 2014 WL 1224247, at *7 (E.D.N.Y. Mar. 24, 2014) (FLSA liquidated damages are compensatory whereas NYLL liquidated damages are punitive).

1. FLSA Liquidated Damages

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 FLSA further provides that "if the employer shows . . . that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that [it] was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any [lesser] amount . . . ." Id. § 260. In light of Defendants' default, there has been no showing that Defendants acted in good faith or that the Court should decline its discretion in granting liquidated damages. See Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987) (noting that employer bears burden of establishing good faith defense under section 260 through "plain and substantial evidence"); Khan v. IBI Armored Servs., Inc., 474 F. Supp. 2d 448, 459 (E.D.N.Y. 2007) ("Simply put, double damages are the norm, single damages the exception, the burden on the employer") (citation omitted) (internal quotation marks omitted)). Therefore, Plaintiff is entitled to FLSA liquidated damages equal to the amount of compensation she received under the FLSA. Because Plaintiff is entitled to $3150.00 in unpaid regular wages under the FLSA and $3292.80 in unpaid overtime compensation under the FLSA, I respectfully recommend that she be awarded $6442.80 in FLSA liquidated damages.

2. NYLL Liquidated Damages

Liquidated damages under the NYLL are equal to "one hundred percent of the total amount of wages found to be due." N.Y. LAB. LAW § 198(1-a). An employee can recover liquidated damages "unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law . . . ." Id. Plaintiffs are, therefore, automatically entitled to NYLL liquidated damages unless defendants prove that they acted in good faith. See Eschmann, 2014 WL 1224247, at *9. Just as when evaluating liquidated damages under the FLSA, Defendants' default in this action and lack of showing that Defendants acted in good faith supports an award of NYLL liquidated damages. See Apolinar v. Global Deli & Grocery, Inc., 12-CV-3446 (RJD) (VMS), 2013 WL 5408122, at *8 (E.D.N.Y. Sept. 25, 2013). Therefore, Plaintiff is entitled to NYLL liquidated damages equal to "one hundred percent of the total amount of wages found to be due." Plaintiff is entitled to $3150.00 in unpaid regular wages, $3292.80 in unpaid overtime compensation, and $253.75 in unpaid NYLL spread-of-hours compensation, so I respectfully recommend that she be awarded 100% of that unpaid amount, or $6696.55 in NYLL liquidated damages.

C. Interest

1. Prejudgment Interest

Plaintiff seeks prejudgment interest on the unpaid spread-of-hours compensation under the FLSA. While prejudgment interest may not be awarded in addition to liquidated damages for violations of the FLSA, Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988) (citing Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 714-16 (1945)), the Second Circuit has awarded prejudgment interest for violations of state wage laws, Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999). Plaintiff is therefore entitled to an award of prejudgment interest on any unpaid wages and spread-of-hours pay for which FLSA liquidated damages were not assessed. See Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 92-93 (E.D.N.Y. 2012) (awarding Plaintiff "prejudgment interest only as to her claims for which no FLSA liquidated damages were awarded, including . . . her claims for . . . unpaid spread-of-hours compensation."); see also Gomez v. El Rancho de Andres Carne de Tres Inc., No. 12-CV-1264 (CBA) (MDG), 2014 WL 1310296, at *9 (E.D.N.Y. Mar. 11) (awarding prejudgment interest only on spread of hours pay awarded under New York law), adopted by, 2014 WL 1310299 (E.D.N.Y. Mar. 31, 2014).

Section 5001 of New York's Civil Practice Law and Rules (N.Y. C.P.L.R.) governs the calculation of prejudgment interest and § 5004 of N.Y. C.P.L.R. sets a statutory interest rate of nine percent per annum. Section 5001(b) sets forth two methods of calculating prejudgment interest. 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. Courts, therefore, have "wide discretion in determining a reasonable date from which to award pre-judgment interest." Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994). Plaintiff's damages were incurred at various times, so the Court will employ the latter calculation method.

The midway point between when "plaintiff began and ceased working for defendant[s]" is a "reasonable intermediate date" for purposes of calculating prejudgment interest. Pavia v. Around the Clock Grocery, Inc., No. 03-CV-6465 (ERK), 2005 WL 4655383, at *8 (E.D.N.Y. Nov. 15, 2005). Plaintiff worked for Defendants from approximately August 6, 2012 until April 7, 2013, such that a reasonable intermediate date for this Court to use would be December 7, 2012. Since Plaintiff has been awarded liquidated damages on all of her unpaid wages, only her spread-of-hours pay for which FLSA liquidated damages were not awarded will be subject to prejudgment interest. Plaintiff is entitled to 9% prejudgment interest under N.Y. C.P.L.R. § 5001 on her unpaid spread of hours pay ($253.75). Interest accrues at the amount of $0.06 a day ($253.75 x 9% = $22.84 per annum; $22.84/365 = $0.06 per day). Prejudgment interest running from December 7, 2012 until May 27, 2014, or 537 days, totals $32.22 and would continue to run at the rate of $0.06 per day until the Clerk of the Court enters judgment. Therefore, I respectfully recommend that Your Honor award prejudgment interest on the spread-of-hours pay award in the amount of $32.22 plus $0.06 a day from today until the Clerk of the Court enters judgment.

2. Post-judgment Interest

Plaintiff is, however, entitled to post-judgment interest on all money awards as a matter of right. See Holness v. Nat'l Mobile Television, Inc., 09-CV-2601 (KAM) (RML), 2012 WL 1744847, at *7 (E.D.N.Y. Feb. 14), report and recommendation adopted as modified, 2012 WL 1744744 (E.D.N.Y. May 15, 2012); see also 28 U.S.C. § 1961(a) ("Interest shall be allowed on any money judgment in a civil case recovered in a district court." (emphasis added)). Whereas prejudgment interest is governed by state law, an award of post-judgment interest is governed by the federal rate as set forth in 28 U.S.C. § 1961. See Cappiello v. ICD Publ'ns, 868 F. Supp. 2d 55, 63-64 (E.D.N.Y. 2012). Accordingly, I respectfully recommend that Plaintiff be awarded post-judgment interest on all sums awarded, including attorney fees, costs, and prejudgment interest, commencing when the Clerk of the Court enters judgment until the date of payment. See Gamble v. E. Bronx N.A.A.C.P. Day Care Ctr, Inc., 04-CV-1198 (KMW) (HBP), 2008 WL 2115237, at *2 (S.D.N.Y. May 15, 2008).

III. Attorney's Fees

Both the FLSA and NYLL allow for an award of "reasonable" attorney's fees. See 29 U.S.C. § 216(b); N.Y. LAB. LAW § 663(1). The amount of reasonable attorney's fees is determined by multiplying "the number of hours reasonably expended on the litigation" by "a reasonable hourly rate," or "a presumptively reasonable fee." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 188-90 (2d Cir. 2008); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989).

A. Reasonable Rates

In order to arrive at the presumptively reasonable fee, which is the "rate a paying client would be willing to pay," Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 190, courts look to the rates "prevailing in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation," Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984). The courts apply a presumption, in calculating attorney's fees, in which the prevailing rates in the forum where the court sits are used. Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2009). The courts receive guidance from (1) rates awarded in prior cases; (2) its own knowledge of hourly rates charged in the district; and (3) evidence submitted by the parties. See Farbotko v. Clinton Cnty. of N.Y., 433 F.3d 204, 209 (2d Cir. 2005) (citations omitted).

Plaintiff seeks compensation at an hourly rate of $300.00 per hour for sole practitioner Arthur H. Forman, Esq. (Dkt. No. 9, Exh. 5 ("Forman Affirm.")) In his affirmation, Forman states that he is a 1980 graduate of Boston University School of Law and has about thirty-three years of experience, fifteen years of which he specialized in employment law, specifically discrimination cases and wage claims. (Id. ¶ 8.) The Second Circuit has cautioned district courts against "treat[ing] an attorney's status as a sole practitioner as grounds for an automatic reduction in the reasonable hourly rate," but rather urged the courts to concentrate on attorneys of comparable skill, expertise, and reputation. McDonald ex rel. Pendergast v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 97 n.6 (2d Cir. 2006). Despite the fact that Forman is a sole practitioner and not a partner, Forman's experience and reputation are comparable to that of a partner in a law firm. Courts have found that the prevailing hourly rates for partners in this district are between $300.00 and $400.00. See Concrete Flotation Sys., Inc. v. Tadco Constr. Corp., No. 07-CV-319 (ARR) (VVP), 2010 WL 2539771, at *4 (E.D.N.Y. Mar. 15) (collecting cases), adopted by, 2010 WL 2539661 (E.D.N.Y. June 17, 2010); Luca v. Cnty. of Nassau, 698 F. Supp. 2d 296, 301-02 (E.D.N.Y. 2010); Gutman v. Klein, No. 03-CV-1570 (BMC), 2009 WL 3296072, at *2 (E.D.N.Y. Oct. 13, 2009); Whitney v. JetBlue Airways Corp., No. 07-CV-1397 (CBA), 2009 WL 4929274, at *7 (E.D.N.Y. Dec. 21, 2009).

Additionally, "the nature of representation and type of work involved in a case are critical ingredients in determining the 'reasonable' hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 184 n.2. The nature of the representation and work involved in the instant case was relatively straightforward, especially because the defendants defaulted. In light of the aforementioned factors, I respectfully recommend that Forman's fees should be based on a reasonable hourly rate of $300.00, which is within the range, albeit the lower end, of prevailing hourly rates for lawyers of reasonably comparable skill, experience, and reputation in this district. See Lema v. Mugs Ale House Bar, No. 12-CV-2182 (PKC) (JO), 2014 WL 1230010, at *5-6 (E.D.N.Y. Mar. 21, 2014) (awarding $300.00 per hour for partner with twenty-six years of practice). But see Whitney v. JetBlue Airways Corp., 2009 WL 4929274, at *7 (consolidating cases) (awarding $350.00 per hour for partner who had been practicing for twenty-eight years in small firm).

B. Reasonable Hours Expended

The second component of the presumptively reasonable fee test is the number of hours reasonably expended in litigating the matter, which is defined as the hours actually expended less any "excessive, redundant, or otherwise unnecessary" time. Hensley, 461 U.S. at 433-34. The party seeking attorney's fees bears the burden of supporting its claim of hours expended by accurate, detailed and contemporaneous time records. N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983). These time records should "specify, for each . . . [timekeeper], the date, the hours expended, and the nature of the work done." Vargas v. Transeau, No. 04-CV-9772 (WHP), 2008 WL 3164586, at *3 (S.D.N.Y. Aug. 6, 2008) (quoting N.Y. State Ass'n for Retarded Children, Inc., 711 F.2d at 1148). The court must examine the particular hours, with an eye to the value to the client's case, of the work product resulting from the specific time expenditures. See Lunday v. City of Albany, 42 F.3d 131, 133 (2d Cir. 1994); DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985).

Here, Plaintiff seeks fees for 14.90 hours and has provided Forman's contemporaneous billing records detailing the work performed and the time spent on this matter. I have examined the time records and I find that the hours expended are reasonable and not excessive. Accordingly, I recommend that Plaintiff be awarded compensation for 14.90 hours of work. Applying the reasonable rates to the reasonable hours billed in this matter, I respectfully recommend that Plaintiff be awarded $4470.00 in attorney's fees.

C. Costs

Plaintiff also seeks to recover $450.00 in litigation costs, which consists of $400.00 for the court filing fee and $50.00 for the process server fee. A prevailing plaintiff in an action under the FLSA or NYLL is entitled to recover costs from the defendant. See 29 U.S.C. § 216(b); N.Y. LAB. LAW § 663(1). I have reviewed the submissions and am satisfied that the requested costs are reasonable. I, therefore, respectfully recommend that Plaintiff is awarded the entirety of the costs sought, or $450.00.

CONCLUSION

For the reasons set forth above, I respectfully recommend that: (1) Plaintiff's motion for default judgment be granted; (2) Plaintiff be awarded a total of $24,788.12 in damages, comprising of $6696.55 in unpaid compensation and $13,139.35 in liquidated damages; (3) Plaintiff be awarded prejudgment interest in the amount of $32.22 plus $0.06 per diem until entry of final judgment; (4) Plaintiff be awarded post-judgment interest; and (5) Plaintiff be awarded $4470.00 in attorney's fees and $450.00 in costs.

Any objections to the recommendations made in this Report must be filed with the Clerk of the Court and the Honorable Carol B. Amon within fourteen days of receipt hereof. Failure to file timely objections may waive the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72; Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Plaintiff is hereby directed to serve a copy of this Report and Recommendation upon Defendants by certified mail within two business days, at Defendants' last-known addresses, and to promptly thereafter file proof of service with the Clerk of the Court.

Dated: May 27, 2014

Brooklyn, New York

/s/

Ramon E. Reyes, Jr.

United States Magistrate Judge