Opinion
Civil Action 21 Civ. 6378 (LGS) (SLC)
01-31-2023
JESUS AMAYA, CESAR REYES, FREDY LOPEZ MONDRAGON, CARLOS GARCIA, FIDENCIO DIAZ, LUCINO GALINDO CANO, MELVIN VIGIL MESIA, EDWIN BELECELA, and CRISTIAN FUENTES, individually and on behalf of all others similarly situated, Plaintiffs, v. BUILDSMART LLC, BERNARDO DAL POZZOLO, and BERNARDO SANTOS XAVIER, Defendants.
HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
In this putative collective action filed under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., New York Labor Law (“NYLL”) § 650 et seq., and New York's Wage Theft Prevention Act, NYLL § 195 (“WPTA”), Plaintiffs Jesus Amaya (“Amaya”), Cesar Reyes (“Reyes”), Fredy Lopez Mondragon (“Mondragon”), Carlos Garcia (“Garcia”), Fidencio Diaz (“Diaz”), Lucino Galindo Cano (“Cano”), Melvin Vigil Mesia (“Mesia”), Edwin Belecela (“Belecela”) (Amaya, Reyes, Mondragon, Garcia, Diaz, Cano, Mesia, and Belecela together, “Plaintiffs”), and Cristian Fuentes (“Fuentes”) seek payment of unpaid overtime wages and related relief from Defendants Buildsmart LLC (“Buildsmart”), Bernardo Dal Pozzolo (“Pozzolo”), and Bernardo Santos Xavier (“Xavier”) (together, “Defendants”). (ECF No. 1 (the “Complaint”)). Plaintiffs allege that, between August 2018 and September 2020, they worked for Defendants as general day laborers, carpenters, rebar workers, and mason and concrete workers, and that Defendants failed to pay them proper overtime wages and provide wage notices or statements as required by law. (Id. ¶¶ 26-105).
Plaintiffs' counsel was unable to reach Fuentes for at least two months prior to filing their proposed findings of fact and conclusions of law concerning damages and, as a result, has “not included his claims in [Plaintiffs'] request for damages.” (ECF No. 54 n.1). Accordingly, the Court does not analyze Fuentes's entitlement to an award of damages and, as discussed below, respectfully recommends that his claims be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41. (See § III.E, infra).
On August 12, 2021, Plaintiffs served Defendants with the Summons and Complaint. (ECF Nos. 7-9). After Defendants failed to appear and the Clerk of Court entered certificates of default against them, (see ECF Nos. 33-35), Plaintiffs moved by order to show cause for entry of default judgment. (ECF Nos. 36-39 (the “OTSC”)). On February 24, 2022, after Defendants failed to respond to the OTSC, the Honorable Lorna G. Schofield ordered that default judgment be entered in Plaintiffs' favor against Defendants (ECF No. 44 (the “Default Order”)), and referred the matter for an inquest on damages. (ECF No. 45). On May 3, 2022, Plaintiffs filed proposed findings of fact and conclusions of law concerning damages, seeking awards of unpaid overtime wages, liquidated damages, and statutory damages. (ECF No. 54 (the “Damages Submission”)).
For the following reasons, the Court respectfully recommends that:
(1) Plaintiffs be awarded damages as follows:
a. Amaya be awarded $21,560.00 in damages, comprised of: (i) $5,780.00 in unpaid overtime wages; (ii) $5,780.00 in liquidated damages; and (iii) $10,000.00 in statutory damages;
b. Reyes be awarded $23,600.00 in damages, comprised of: (i) $6,800.00 in unpaid overtime wages; (ii) $6,800.00 in liquidated damages; and (iii) $10,000.00 in statutory damages;
c. Mondragon be awarded $16,900.00 in damages, comprised of: (i) $3,825.00 in unpaid overtime wages; (ii) $3,825.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
d. Garcia be awarded $16,900.00 in damages, comprised of: (i) $3,825.00 in unpaid overtime wages; (ii) $3,825.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
e. Diaz be awarded $24,550.00 in damages, comprised of: (i) $7,650.00 in unpaid overtime wages; (ii) $7,650.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
f. Cano be awarded $17,410.00 in damages, comprised of: (i) $3,120.00 in unpaid overtime wages; (ii) $3,120.00 in liquidated damages; and
(iii) $9,250.00 in statutory damages;
g. Mesia be awarded $20,880.00 in damages, comprised of: (i) $5,440.00 in unpaid overtime wages; (ii) $5,440.00 in liquidated damages; and
(iii) $10,000.00 in statutory damages;
h. Belecela be awarded $24,850.00 in damages, comprised of: (i) $7,425.00 in unpaid overtime wages; (ii) $7,425.00 in liquidated damages; and (iii) $10,000.00 in statutory damages; and
(2) Plaintiffs be awarded post-judgment interest pursuant to 28 U.S.C. § 1961.
(3) Plaintiffs be awarded no pre-judgment interest, attorneys' fees, or costs.
(4) The Default Order be VACATED as to Fuentes and his claims be DISMISSED WITHOUT PREJUDICE under Rule 41 for failure to prosecute, or, in the alternative, Fuentes be given 30 days to show cause why his claims should not be dismissed.
II. BACKGROUND
A. Factual Background
Unless otherwise indicated, the facts are taken from the Complaint and the Damages Submission, including the declaration each Plaintiff submitted attesting to his hours worked and other facts concerning his employment with Defendants (the “Declarations”) (ECF Nos. 54-1 -54-8). Given Defendants' default, the Court accepts as true all well-pleaded factual allegations in the Complaint, except as to damages. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Whitehead v. Mix Unit, LLC, No. 17 Civ. 9476 (VSB) (JLC), 2019 WL 384446, at *1 (S.D.N.Y. Jan. 31, 2019).
Unless otherwise indicated, all internal citations and quotation marks are omitted from case citations.
Buildsmart is a New York corporation with annual gross sales exceeding $500,000.00, and is “engaged in commerce or the production of goods for commerce within the meaning and intent of the FLSA.” (ECF No. 1 ¶¶ 17, 25). Plaintiffs allege that, during their employment, Buildsmart “employed approximately 30-50 employees[.]” (Id. ¶ 79). Pozzolo and Xavier own, operate, and are agents of Buildsmart, and had the power over personnel decisions, payroll decisions, setting the work schedules, and maintaining employment records. (Id. ¶¶ 19-23).
Each Plaintiff worked for Defendants as “a carpentry worker, masonry worker, cement worker, [and] general day laborer . . . at two (2) commercial project jobsites, one located at 849 53rd Street, Brooklyn, NY[,] and the other located at 134-16 36th Road, Flushing, NY.” (ECF No. 54-1 ¶¶ 3-4; see ECF Nos. 54-2 ¶¶ 3-4; 54-3 ¶¶ 3-4; 54-4 ¶¶ 3-4; 54-5 ¶¶ 3-4; 54-6 ¶¶ 3-4; 54-7 ¶¶ 3-4; 54-8 ¶¶ 3-4). Because each Plaintiff worked for Defendants at different times and for different rates of pay, the Court summarizes their allegations separately.
Amaya worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 26; 54-1 ¶ 3). He regularly worked 60 hours per week, from 7:00 a.m. to 6:00 p.m. five days per week and from 9:00 a.m. to 5:00 p.m. on Saturdays, with a 30-minute lunch break each day. (ECF No. 54-1 ¶¶ 5-6).Amaya was paid an hourly rate of $34.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Amaya states that “on days [he] had to do concrete work, [he] worked straight through the day as Defendants required [him] to do.” (ECF No. 54-1 ¶ 6). Amaya does not provide any detail about how often this occurred, and, to the contrary, has provided damages calculations that reflect a 30-minute lunch break for each day worked. (ECF No. 54-9 at 2).
Reyes worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 31; 54-2 ¶ 3). He regularly worked 60 hours per week, from 7:00 a.m. until 6:00 p.m. five days per week and from 9:00 a.m. to 5:00 p.m. on Saturdays, with a 30-minute lunch break each day. (ECF No. 54-2 ¶¶ 5-6). Reyes was paid an hourly rate of $40.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Reyes totals his hours as 55 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 60 hours per week. (See ECF No. 54-2 ¶ 5).
Mondragon worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 36; 543 ¶ 3). He regularly worked 55 hours per week, from 7:00 a.m. until 6:00 p.m., without a lunch break, five days per week. (ECF No. 54-3 ¶¶ 5-6). Mondragon was paid an hourly rate of $30.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Garcia worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 41; 54-4 ¶ 3). He regularly worked 55 hours per week, from 7:00 a.m. until 6:00 p.m., without a lunch break, five days per week. (ECF No. 54-4 ¶¶ 5-6).Garcia was paid an hourly rate of $30.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Garcia totals his hours as 63 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 55 hours per week. (See ECF No. 54-4 ¶ 5).
Diaz worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 46; 54-5 ¶ 3). He regularly worked 55 hours per week, from 7:00 a.m. until 6:00 p.m., without a lunch break, five days per week. (ECF No. 54-4 ¶¶ 5-6). Diaz was paid an hourly rate of $60.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 6).
Diaz totals his hours as 63 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 55 hours per week. (See ECF No. 54-5 ¶ 5).
Cano worked for Buildsmart from June 2020 to September 2020. (ECF Nos. 1 ¶ 51; 546 ¶ 3). He regularly worked 55 hours per week, from 7:00 a.m. until 6:00 p.m., without a lunch break, five days per week. (ECF No. 54-6 ¶¶ 5-6). Cano was paid an hourly rate of $32.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Cano totals his hours 63 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 55 hours per week. (See ECF No. 54-6 ¶ 5).
Mesia worked for Buildsmart from May 2020 to August 2020. (ECF Nos. 1 ¶ 56; 54-7 ¶ 3). He regularly worked 60 hours per week, from 7:00 a.m. until 6:00 p.m. five days per week and from 9:00 a.m. to 5:00 p.m. on Saturdays, with a 30-minute lunch break each day. (ECF No. 54-7 ¶¶ 5-6). Mesia was paid an hourly rate of $32.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Mesia totals his hours as 55 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 60 hours per week. (See ECF No. 54-7 ¶ 5).
Belecela worked for Buildsmart from August 2018 to February 2019. (ECF Nos. 1 ¶ 61; 54-8 ¶ 3). He regularly worked 55 hours per week, from 7:00 a.m. until 6:00 p.m., without a lunch break, five days per week. (ECF No. 54-8 ¶¶ 5-6). Belecela was paid the same hourly rate of $33.00 for all hours worked, including those in excess of 40 hours a week. (Id. ¶ 7).
Belecela totals his hours as 63 hours per week, but from the schedule he provided in his declaration, the Court calculates the hours worked as 55 hours per week. (See ECF No. 54-8 ¶ 5).
During their employment with Defendants, each Plaintiff was paid weekly in cash (except for Belecela, who was paid both in cash and by check), without any “accompanying pay stub, wage statement, nor any other written document listing [his] hours worked or pay received during such week.” (ECF No. 54-8 ¶ 8; see ECF Nos. 54-1 ¶ 8; 54-2 ¶ 8; 54-3 ¶ 8; 54-4 ¶ 8; 54-5 ¶ 7; 54-6 ¶ 8; 54-7 ¶ 8). Defendants did not provide any Plaintiff with written notice, in English or Spanish (their primary language) stating their rate of pay, regular pay day, or other information required under the FLSA and NYLL. (ECF Nos. 1 ¶¶ 66, 74, 101, 104; 54-1 ¶ 9; 54-2 ¶ 9; 54-3 ¶ 9; 54-4 ¶ 9; 54-5 ¶ 8; 54-6 ¶ 9; 54-7 ¶ 9).
Defendants knew that Plaintiffs performed work requiring overtime pay, but failed and refused to pay required overtime wages. (ECF No. 1 ¶¶ 78, 82). Plaintiffs allege that Defendants “willfully” failed to post notices and keep accurate payroll records, as required by both the NYLL and FLSA. (Id. ¶¶ 66-67). Defendants' conduct, which was “willful and in bad faith,” was also “widespread, repeated, and consistent.” (Id. ¶¶ 81, 83).
B. Procedural Background
On July 27, 2021, Plaintiffs filed the Complaint. (ECF No. 1). On August 12, 2021, Plaintiffs served Defendants with the Summons and Complaint. (ECF Nos. 7-9). After Defendants failed to appear, the Clerk of the Court entered certificates of default. (ECF Nos. 33-35).
On December 31, 2021, Plaintiffs requested entry of default judgment. (ECF Nos. 3638). On January 6, 2022, Judge Schofield issued the OTSC directing Defendants to show cause why a default judgment should not be entered against them and scheduling a show-cause hearing for February 16, 2022 (the “Hearing”). (ECF No. 39). That same day, Plaintiffs served the Defendants with the OTSC. (ECF No. 40).
On February 23, 2022, following an adjournment at Plaintiffs' request (see ECF Nos. 4143), Judge Schofield held the Hearing. (ECF min. entry Feb. 23, 2022; see ECF No. 44). Neither the Defendants nor any representative appeared. (Id.) On February 24, 2022, Judge Schofield issued the Default Order, entering judgment “in favor of Plaintiffs and against Defendants” (ECF No. 44 at 4), and referred the action for an inquest on damages. (ECF No. 45).
On March 15, 2022, the Court ordered Plaintiffs to submit proposed findings of facts and conclusions of law concerning damages by April 5, 2022, and Defendants to respond by April 19, 2022, warning Defendants that if they failed to respond or contact the Court, the Court would decide the damages based on Plaintiffs' submissions alone. (ECF No. 47). At Plaintiffs' request (ECF Nos. 48; 51), the Court twice extended these deadlines. (See ECF Nos. 49; 52 (together, the “Amended Scheduling Orders”)). Plaintiffs served the Amended Scheduling Orders on Defendants. (ECF Nos. 50; 53). On May 3, 2022, Plaintiffs filed the Damages Submission, and served it on Defendants. (ECF Nos. 54-55). To date, Defendants have not responded or otherwise contacted the Court.
III. DISCUSSION
A. Legal Standards
1. Obtaining a Default Judgment
A party seeking a default judgment must follow the two-step procedure set forth in Federal Rule of Civil Procedure 55. See Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186-87 (2d Cir. 2015); Fed.R.Civ.P. 55. First, under Rule 55(a), where a party has failed to plead or otherwise defend in an action, the Clerk of the Court must enter a certificate of default. See Fed.R.Civ.P. 55(a). Second, after entry of the default, if the party still fails to appear or move to set aside the default, the Court may enter a default judgment. See Fed.R.Civ.P. 55(b). Whether to enter a default judgment lies in the “sound discretion” of the trial court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Because a default judgment is an “extreme sanction” that courts are to use as a tool of last resort, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981), the district court must “carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 29 (E.D.N.Y. Mar. 19, 2015) (citing Enron, 10 F.3d at 96).
In considering whether to enter a default judgment, district courts are “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Is., Inc., No. 10 Civ. 4398 (JS) (AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011). “These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense.” J & J Sports Prods. Inc. v. 1400 Forest Ave. Rest. Corp., No. 13 Civ. 4299 (FB) (VMS), 2014 WL 4467774, at *4 (E.D.N.Y. Sept. 10, 2014) (citing Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir. 2010)); see Enron, 10 F.3d at 96 (noting that “[a]lthough the factors examined in deciding whether to set aside a default or a default judgment are the same, courts apply the factors more rigorously in the case of a default judgment because the concepts of finality and litigation repose are more deeply implicated in the latter action”).
2. Determining Liability
A defendant's default is deemed “a concession of all well-pleaded allegations of liability,” Rovio Entm't, Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 545 (S.D.N.Y. 2015), but a default “only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants.” Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015). The Court must determine “whether the allegations in [the] complaint establish the defendants' liability as a matter of law.” Id. If the Court finds that the well-pleaded allegations establish liability, the Court then analyzes “whether plaintiff has provided adequate support for [his requested] relief.” Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008). If, however, the Court finds that the complaint fails to state a claim on which relief may be granted, the Court may not award damages, “even if the post-default inquest submissions supply the missing information.” Perez v. 50 Food Corp., No. 17 Civ. 7837 (AT) (BCM), 2019 WL 7403983, at *4 (S.D.N.Y. Dec. 4, 2019), adopted by, 2020 WL 30344 (S.D.N.Y. Jan. 2, 2020).
3. Determining Damages
Once liability has been established, the Court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15 Civ. 5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016), adopted by, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [its] entitlement to recovery and thus must substantiate [its] claim with evidence to prove the extent of damages.” Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023 (PAE) (JLC), 2012 WL 676350, at *2 (S.D.N.Y. Mar. 1, 2012). The evidence the plaintiff submits must be admissible. See Poulos v. City of New York, No. 14 Civ. 3023 (LTS) (BCM), 2018 WL 3750508, at *2 (S.D.N.Y. July 13, 2018), adopted by, 2018 WL 3745661 (S.D.N.Y. Aug. 6, 2018); see also House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order) (“[D]amages must be based on admissible evidence.”). If the documents the plaintiff has submitted provide a “sufficient basis from which to evaluate the fairness of” the requested damages, the Court need not conduct an evidentiary hearing. Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989); see Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (noting that a court may determine appropriate damages based on affidavits and documentary evidence “as long as [the court has] ensured that there [is] a basis for the damages specified in the default judgment”).
With respect to claims for unpaid wages, when the employer's payroll records are inaccurate or incomplete, “an employee has carried out his [or her] burden if he [or she] proves” enough for the court to make an “inference” that he or she “has in fact performed work for which he was improperly compensated and if he [or she] produces sufficient evidence to show the amount and extent of that work[.]” Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). The Court may credit a plaintiff's “recollections regarding [her] hours and pay in conducting [the] inquest.” Coley v. Vannguard Urban Improvement Ass'n, Inc., No. 12 Civ. 5565 (PKC) (RER), 2018 WL 1513628, at *7 (E.D.N.Y. Mar. 27, 2018), as amended, (Mar. 29, 2018). The Court “must ensure that [his] approximations and estimates are reasonable and appropriate.” Id. Ultimately, the default judgment the Court enters “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c); see Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007) (limiting damages to those specified in demand in complaint “ensures that a defendant who is considering default can look at the damages clause, satisfy himself that he is willing to suffer judgment in that amount, and then default without the need to hire a lawyer”); Joint Stock Co. Channel One Russia Worldwide v. Infomir LLC, No. 16 Civ. 1318 (GBD) (BCM), 2018 WL 4760345, at *1 (S.D.N.Y. Sept. 28, 2018) (holding that plaintiff could not recover damages for unalleged claims against defaulted defendant).
B. Default Judgment
In accordance with the two-step process in Rule 55, the Clerk of the Court entered certificates of default as to all Defendants (ECF Nos. 33-35), and Judge Schofield entered the Default Order. (ECF No. 44). Furthermore, an analysis of the relevant factors set forth above reveals first that the Court can infer, from Defendants' failure to submit any written reply to Plaintiffs' Damages Submission, after having been properly served, that their default was willful. See Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 (LTS) (GWG), 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (finding that a failure to respond to a complaint and subsequent motion for default judgment “indicate[s] willful conduct”). Second, delaying entry of a default judgment might prejudice Plaintiffs. See Inga v. Nesama Food Corp., No. 20 Civ. 909 (ALC) (SLC), 2021 WL 3624666, at *6 (S.D.N.Y. July 30, 2021) (finding that FLSA plaintiff would “be prejudiced in the absence of a default judgment, not only by the delay in resolving this action, but by his inability to recover from another source for the lost wages and other losses he sustained while working for Defendants”), adopted by, 2021 WL 3617191 (S.D.N.Y. Aug. 16, 2021). Third, Defendants have failed to respond to the Court's orders to appear and defend in this action. Thus, because the requirements of Rule 55 are satisfied and the relevant factors weigh in Plaintiffs' favor, the Court finds that entry of default judgment is proper in this case.
C. Liability
1. Jurisdiction and Venue
As a threshold matter, the Court has subject matter jurisdiction over this action. Plaintiffs sue in part under a federal statute-the FLSA-that gives rise to the Court's subject matter jurisdiction under 28 U.S.C. § 1331. The Court may exercise supplemental jurisdiction over Plaintiffs' NYLL claims because they arise out of the same facts and circumstances as their FLSA claims. See Perez, 2019 WL 7403983, at *5.
The Court also has personal jurisdiction over Defendants. Personal jurisdiction is “a necessary prerequisite to entry of a default judgment.” Reilly v. Plot Commerce, No. 15 Civ. 5118 (PAE) (BCM), 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016), adopted by, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). The Court has personal jurisdiction over Buildsmart, which is located in this District, as well as Pozzolo and Xavier, who own and operate Buildsmart. (ECF No. 1 ¶¶ 2, 17, 18-20). Plaintiffs properly served all Defendants. (ECF Nos. 7-9). See Fed.R.Civ.P. 5(b)(2).
Venue is proper because Buildsmart is a New York corporation that operates in this District (ECF No. 1 ¶¶ 17-18), and because the events or omissions giving rise to Plaintiffs' claims occurred in this District (ECF No. 1 ¶¶ 26-105). See 28 U.S.C. §§ 1391(b)(1)-(2).
2. Statute of Limitations
Under the NYLL, the statute of limitations is six years. See NYLL § 198(3). Under the FLSA, the statute of limitations is two years, or, if the violations were “willful,” three years. See 29 U.S.C. § 255(a); see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988). An FLSA violation is willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin, 486 U.S. at 133. Although plaintiffs may not recover under both the FLSA and the NYLL for the same injury, courts allow plaintiffs to recover under the statute that provides for the greatest relief. Ni v. Bat-Yam Food Servs. Inc., No. 13 Civ. 7274 (ALC) (JCF), 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016).
Here, Plaintiffs worked at Buildsmart for various periods spanning from August 2018 to September 2020 (ECF Nos. 1 ¶¶ 8-15; 54-1 - 54-8), and filed the Complaint on July 27, 2021. (ECF No. 1). Thus, each Plaintiff's employment period is entirely within the NYLL's six-year statute of limitations, but would not be entirely covered by the FLSA's shorter statute of limitations. Because the NYLL provides for equal or greater relief relative to the FLSA, the Court recommends awarding Plaintiffs damages under the NYLL. See Suriel v. Cruz, No. 20 Civ. 8442 (VSB) (SLC), 2022 WL 1750232, at *9 (S.D.N.Y. Jan. 10, 2022), adopted by, 2022 WL 1751163 (May 31, 2022); Schalaudek v. Chateau 20th St. LLC, No. 16 Civ. 11 (WHP) (JLC), 2017 WL 729544, at * 5 (S.D.N.Y. Feb. 24, 2017).
Plaintiffs' employment periods would be completely covered by FLSA's three-year statute of limitations for willful violations, but not by the two-year period applicable to non-willful violations. (See ECF Nos. 1 ¶¶ 8-15; 54-1 - 54-8). To support their contention that the Defendants' conduct was willful, Plaintiffs repeatedly allege that Defendants “willfully” violated their rights under the FLSA and NYLL and that their conduct was “widespread, repeated, and consistent.” (ECF No. 1 ¶¶ 66, 67, 74, 75, 81-83, 93, 94). In Whiteside v. Hover-Davis, Inc., the Second Circuit held that “a plaintiff at the pleadings stage must allege facts that give rise to a plausible inference of willfulness for the three-year exception to the FLSA's general two-year statute of limitations to apply.” 995 F.3d 318, 320 (2d Cir. 2021). “The Whiteside Court did not address what impact, if any, its ruling would have when a defendant defaults and willfulness is therefore inferred as a matter of law assuming it has been pled.” Baez v. RCO Restoration Corp., No. Civ. 1066 (VSB) (JLC), 2021 WL 1847379, at *2 n.3 (S.D.N.Y. May 10, 2021), adopted by, 2021 WL 4077944 (S.D.N.Y. Sept. 8, 2021); see Wicaksono v. XYZ 48 Corp., No. 10 Civ. 3635 (LAK) (JCF), 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) (finding that, “[b]ecause the defendant defaulted and the complaint alleges that all of the violations were undertaken ‘knowingly, intentionally and willfully,' the plaintiffs [were] entitled to a finding that the defendant's conduct was willful, and the three year statute of limitations will apply”), adopted by, 2011 WL 2038973 (S.D.N.Y. May 24, 2011). Because Plaintiffs are “being awarded damages under New York Labor Law, which has a six-year statute of limitations, this issue need not be further considered in this case.” Baez, 2021 WL 1847379, at *2 n.3; see Wen v. Hair Party 24 Hours Inc., No. 15 Civ. 10186 (ER) (DF), 2021 WL 3375615, at *15 (S.D.N.Y. May 17, 2021) (“The NYLL, however, with its six-year statute of limitations, would cover the entire period of Plaintiff's employment, without the Court's needing to reach the question of whether Plaintiff has adequately pleaded ‘willfulness' under the FLSA, so as to be able to take advantage of the ‘willfulness' exception to the statute's two-year limitations period.”), adopted by, 2021 WL 2767152 (S.D.N.Y. July 2, 2021).
3. FLSA and NYLL Elements
To state a claim for unpaid wages under the FLSA, a plaintiff must allege that: (1) he was the defendant's employee; (2) his work involved interstate activity; and (3) he worked for hours for which he did not receive minimum or overtime wages. See Tackie v. Keff Enter., Inc., No. 14 Civ. 2074 (JPO), 2014 WL 4626229, at *2 (S.D.N.Y. Sept. 16, 2014). A wage-and-hour claim under the NYLL involves a similar analysis, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Id. at *2 n.2. To recover overtime compensation, a plaintiff “must allege sufficient factual matter to state a plausible claim that [he] worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013).
a. The Employment Relationship
Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Courts afford the term employer “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, No. 15 Civ. 2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019), adopted by, 2019 WL 2544666 (S.D.N.Y. June 20, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)). Under the FLSA, “[a]n individual may have multiple ‘employers,'” such that “‘all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].'” Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017) (quoting 29 C.F.R. § 791.2(a)).
To determine whether the Defendants were the Plaintiffs' “employer” for FLSA purposes, the Court must examine the “economic reality” of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Courts in the Second Circuit consider four nonexclusive factors to assess the “economic reality” of an alleged employment relationship, 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.” Id. at 105 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). This “inquiry is a totality-of-the-circumstances approach, so no one factor is dispositive[.]” Tackie, 2014 WL 4626229, at *2.
Under the NYLL, the definition of “employer” is also broad, see NYLL § 190(3),n“and the crucial inquiry, in determining whether an employer-employee relationship exists, is the ‘degree of control exercised by the purported employer over the results produced or the means used to achieve the results.'” Mondragon, 2019 WL 2551536, at *7 (quoting Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013)). In the absence of a decision from the New York Court of Appeals answering “the question whether the test for ‘employer' status is the same under the FLSA and the NYLL,” Camara v. Kenner, No. 16 Civ. 7078 (JGK), 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018), “[t]here is general support for giving FLSA and the [NYLL] consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa).” Hart, 967 F.Supp.2d at 924. “Accordingly, courts in this District regularly apply the same tests to determine whether entities were joint employers under NYLL and the FLSA.” Martin, 273 F.Supp.3d at 422.
The defines “employer” as “any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.” See NYLL § 190(3).
Plaintiffs allege that Defendants employed them as general day laborers, carpenters, rebar workers, and mason and concrete workers. (ECF No. 1 ¶¶ 27, 32, 37, 42, 47, 52, 57, 62, 78). Plaintiffs claim that Pozzolo and Xavier own and operate Buildsmart and that they had “the power to hire and fire employees of Buildsmart . . ., establish and pay their wages, set their work schedule, and maintain their employment records” and, therefore, were Plaintiffs' “employer within the meaning of the FLSA and the NYLL.” (ECF Nos. 1 ¶¶ 19-24). Plaintiffs have therefore adequately alleged employer-employee relationships with the Defendants. Perez, 2019 WL 7403982, at *6.
By their default, Defendants have admitted their status as Plaintiffs' employers. See Suriel, 2022 WL 1750232, at *11; Rovio Entm't, 97 F.Supp.3d at 545. As a result, Defendants are jointly and severally liable under the FLSA and NYLL for any damages award. See Fermin, 93 F.Supp.3d at 37 (imposing joint and several liability on defaulting corporate and individual defendants); Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 685 (S.D.N.Y. 2011) (imposing joint and several liability on defaulting corporate and individual defendants where allegations that individual defendant “was an owner, partner, or manager,” along with his default, established him as employer under the FLSA and the NYLL).
b. Interstate Commerce
Under the FLSA, Plaintiffs must establish that they or their employer were engaged in interstate commerce. See Ethelberth v. Choice Sec. Co., 91 F.Supp.3d 339, 353 (E.D.N.Y. 2015) (“Engagement in interstate commerce, either by an employee or by the employer as a whole, is a prerequisite for liability for the FLSA's overtime requirement.”); 29 U.S.C. § 207(a)(1) (stating that employees “engaged in commerce or in the production of goods for commerce” are entitled to overtime compensation at “one and one-half times the regular rate at which [they are] employed”); 29 U.S.C. § 203(s)(1)(A) (defining “[e]nterprise engaged in commerce”).
Plaintiffs have plausibly alleged that Defendants engaged in interstate commerce. Plaintiffs alleged that the Buildsmart “is an enterprise engaged in interstate commerce,” with “employees engaged in commerce or in the production of goods for commerce, and [that] handle, sells, or otherwise work on goods or material that have been moved in or produced for commerce by any person,” with annual gross sales of more than $500,000.00 per year. (ECF No. 1 ¶ 25). “[L]ocal business activities fall within the reach of the FLSA when an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce.” Cabrera v. Canela, 412 F.Supp.3d 167, 173 (E.D.N.Y. 2019) (quoting Archie v. Grand Cent. P'ship, Inc., 997 F.Supp. 504, 530 (S.D.N.Y. 1998)); see Gora v. Acer Restorations LLC, No. 13 Civ. 4776 (JBW), 2014 WL 10537433, at *3 (E.D.N.Y. Oct. 8, 2014) (finding allegations that New York-based construction company with employees who handle, sell or otherwise work on goods or materials that have been moved in or produced for interstate commerce and with annual profits exceeding $500,000 were “sufficient to establish that the defendants were engaged in interstate commerce and thus are subject to liability under the FLSA”). Accordingly, Plaintiffs' allegations meet the threshold for enterprise liability under the FLSA, see 29 U.S.C. § 203(s)(1)(A), such that Plaintiffs have satisfied the interstate commerce element for FLSA liability. See Mondragon, 2019 WL 2251536, at *9.
c. Unpaid Overtime
Both the FLSA and the NYLL require an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. To state an overtime claim, a plaintiff “must allege only that [he] worked compensable overtime in a workweek longer than forty hours, and that [he] was not properly compensated for that overtime.” Tackie, 2014 WL 4626229, at *3.
Plaintiffs allege that they regularly worked more than 40 hours per week, and that Defendants failed to pay them an overtime rate for the hours worked over 40 hours per week. (ECF Nos. 1 ¶¶ 26-76; 54-1 - 54-8). Thus, Plaintiffs have adequately stated a claim for unpaid overtime wages under the FLSA and the NYLL. See Suriel, 2022 WL 1750232, at *13 (holding that plaintiff stated claim for overtime wages); Agureyev v. H.K. Second Ave. Rest., Inc., No. 17 Civ. 7336 (SLC), 2021 WL 847977, at *7 (S.D.N.Y. Mar. 5, 2021) (same); Mondragon, 2019 WL 2551536, at *9 (same).
d. Liquidated damages
Under the FLSA, “a plaintiff who demonstrates that he was improperly denied either minimum or overtime wages may recover, in addition to reimbursement of these unpaid wages, an ‘additional equal amount as liquidated damages.'” Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14 Civ. 10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) (quoting 29 U.S.C. § 216(b)), adopted by, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). “[W]here the employer shows that, despite its failure to pay appropriate wages, it acted in subjective ‘good faith' with objectively ‘reasonable grounds' for believing that its acts or omissions did not violate the FLSA,” the Court has the discretion to deny liquidated damages. Barfield, 537 F.3d at 150 (quoting 29 U.S.C. § 260). This burden is “a difficult one,” id. (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)), and where “defendants never made this showing in light of their default, they have not rebutted the presumption in favor of a liquidated damages award.” Guaman v. J & C Top Fashion, Inc., No. 14 Civ. 8143 (GBD) (GWG), 2016 WL 791230, at *7 (S.D.N.Y. Feb. 22, 2016). A plaintiff who “is entitled to liquidated damages under the FLSA, but has been awarded wage and overtime damages pursuant to the NYLL because state law provided the greater relief” is entitled to FLSA liquidated damages “based on ‘the amount of actual damages that would have been awarded had the federal minimum wage rate applied.'” Kernes v. Glob. Structures, LLC, No. 15 Civ. 659 (CM) (DF), 2016 WL 880199, at *4 (S.D.N.Y. Feb. 9, 2016) (quoting Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777 (JGK) (JLC), 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012)).
The NYLL also authorizes liquidated damages. See Xochimitl, 2016 WL 4704917, at *15. Effective November 24, 2009, “an employee was entitled to NYLL liquidated damages ‘unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.'” Id. (quoting NYLL § 198(1-a)). “Courts deem defendants' actions willful where they have defaulted, see e.g., Angamarca, 2012 WL 3578781, at *8, and, consequently, such defaulting defendants will have ‘[o]bviously . . . made no showing of ‘good faith.'” Xochimitl, 2016 WL 4704917, at *15 (quoting Guaman, 2016 WL 791230, at *7). Effective April 9, 2011, the liquidated damages award under the NYLL is 100% of the amount of unpaid wages. NYLL §§ 198(1-a), 663(1).
The Second Circuit precludes a plaintiff from recovering liquidated damages under both the FLSA and the NYLL. See Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 60 (2d Cir. 2016); Mondragon, 2019 WL 2551536, at *11. A plaintiff should recover “under the statute that provides the greatest relief.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14 Civ. 7850 (VEC) (DF), 2016 WL 8650464, at *9 (S.D.N.Y. Nov. 7, 2016). The NYLL allows for prejudgment interest in addition to liquidated damages, see NYLL § 198(1-a), but the FLSA does not. See Valdez v. H & S Rest. Operations, Inc., No. 14 Civ. 4701 (SLT) (MDG), 2016 WL 3079028, at *6 (E.D.N.Y. Mar. 29, 2016), adopted by 2016 WL 3087053 (E.D.N.Y. May 27, 2016). The NYLL, therefore, provides greater relief. See Mondragon, 2019 WL 2551536, at *11.
Having defaulted, Defendants have not carried their burden of demonstrating good faith under the NYLL, see Mondragon, 2019 WL 2551536, at *11, and therefore, Plaintiffs are entitled to liquidated damages equivalent to 100% of their unpaid wages. See Schalaudek, 2017 WL 729544, at *10 (awarding liquidated damages of 100% of unpaid wages where defendants had defaulted); Suriel, 2022 WL 1750232, at *16 (same).
e. Statutory Wage Notices and Statements
“The [WTPA], which became effective April 9, 2011, required [Defendants] to provide [Plaintiffs], at the time of hiring, with a notice containing, inter alia, the rate and frequency of [their] pay, NYLL § 195(1), and to furnish [them] with a written statement with each payment of wages, listing, inter alia, the dates covered by the payment, the regular rate of pay, the overtime rate, and the number of hours worked. NYLL § 195(3).” Mondragon, 2019 WL 2551536, at *12.
Plaintiffs allege that Defendants failed to provide them with wage notices when they were hired, and that Defendants failed to furnish weekly wage statements, such that they are entitled to statutory penalties. (ECF Nos. 1 ¶¶ 26-76, 100-105; 54-1 - 54-8). Defendants are again deemed to have admitted these allegations by their default, and therefore, the Court finds that Plaintiffs are entitled to recover statutory damages under §§ 195(1) and 195(3). See Suriel, 2022 WL 1750232, at *14.
* * *
In summary, the Court finds that the well-pleaded allegations in the Complaint and Damages Submission establish Defendants' liability for unpaid overtime wages, liquidated damages, and WTPA damages.
D. Damages Calculation
No party has requested a hearing on the issue of damages, and Defendants have not submitted any written materials. Therefore, the Court has conducted its inquest based solely on the materials in the Damages Submission. See Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (“[A] district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.”); Perez, 2019 WL 7403983, at *3; Fed.R.Civ.P. 55(b)(2).
The Court must determine whether Plaintiffs have provided sufficient evidence to support their claim for damages. Transatlantic Marine, 109 F.3d at 111; Bleecker v. Zetian Sys., Inc., No. 12 Civ. 2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013). In the Damages Submission, Plaintiffs each filed a declaration attesting to the dates and circumstances of their employment with Defendants. (ECF Nos. 54-1 - 54-8). Despite warnings, Defendants have not responded to the Default Order or the Damages Submission, or provided any contrary evidence. (ECF Nos. 44; 49; 52). The Court finds that Plaintiffs have met their evidentiary burden of proving damages, and that an in-person hearing is unnecessary because the Damages Submission, combined with Defendants' admissions resulting from their default, constitute a sufficient basis from which to evaluate the fairness of their damages request. Fustok, 873 F.2d at 40; see Boston Sci. Corp. v. New York Ctr. for Specialty Surgery, No. 14 Civ. 6170 (RRM), 2015 WL 13227994, at *3 (E.D.N.Y. Aug. 31, 2015) (same).
1. Overtime Wages
The Court calculates appropriate overtime wages “by multiplying [an employee's] regular hourly rate (or the minimum wage rate, if his regular hourly rate falls below the minimum wage) by one and one-half,” then by multiplying that rate “by the number of hours in excess of forty hours the employee worked each week.” Rosendo v. Everbrighten Inc., No. 13 Civ. 7256 (JGK) (FM), 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015). Here, Plaintiffs claim that they were paid at their regular hourly rate for all hours they worked, including those over 40 hours per week, and are therefore entitled to recover 50% of their normal hourly salary with respect to each hour of overtime worked. (ECF Nos. 1; 54-1 - 54-8).
Having reviewed the Damages Submission, the Court disagrees with Plaintiffs' calculations of their unpaid overtime wages for two reasons. First, the calculations for Amaya, Reyes, Mondragon, Garcia, Diaz, Mesia, and Belecela include unpaid overtime for partial weeks when they could not have worked more than 40 hours and, thus, could not have accrued overtime.The Court has calculated Plaintiffs' damages “by rounding down to the nearest whole number of weeks because Plaintiffs would unlikely accrue overtime compensation in a partial work week.” Torres v. Jin Xiang Trading Inc., No. 17 Civ. 2866 (RJD) (PK), 2020 WL 9814080, at *9 n.6 (E.D.N.Y. Mar. 12, 2020). Second, as discussed above, (see § II.A, supra), all Plaintiffs except Mondagron made inconsistent statements regarding the total number of hours they worked each week that did not accurately reflect the specific work schedules they provided. The Court presumes these Plaintiffs made mathematical errors when calculating the total number of hours worked, and has calculated their damages based on the specific weekly schedules they attested to in their Declarations.
Amaya, Reyes, Mondragon, Garcia, Diaz, and Mesia claimed to have worked for Defendants for “17.43” weeks, and Belecela claims to have worked for Defendants for “30.14” weeks. (See ECF No. 54-9 at 1-6, 8-9).
Accordingly, the Court recommends that Plaintiffs be awarded damages for overtime wages in the amounts below:
Plaintiff
Time Period
Hours of Overtime worked weekly
Plaintiff's Hourly Rate
Half Time Rate (Plaintiff's Hourly Rate *.5)
Unpaid Overtime Hours
Overtime Wages Awarded
Amaya
05/01/2020-08/31/2020
20
$34.00
$17.00
$5,780.00
Reyes
05/01/2020- 08/31/2020
20
$40.00
$20.00
340
$6,800.00
Mondragon
05/01/2020- 08/31/2020
15
$30.00
$15.00
$3,825.00
Garcia
05/01/2020- 08/31/2020
15
$30.00
$15.00
255
$3,825.00
Diaz
05/01/2020-08/31/2020
15
$60.00
$30.00
255
$7,650.00
06/01/2020- 09/30/2020
15
$32.00
$16.00
255
$4,080.00
Mesia
05/01/2020-08/31/2020
20
$32.00
$16.00
340
$5,440.00
Belecela
08/01/2018-02/28/2019
15
$33.00
$16.50
$7,425.00
TOTAL
$44,825.00
17 weeks * 20 unpaid hours/week = 340 unpaid overtime hours.
17 weeks * 15 unpaid hours/week = 255 unpaid overtime hours.
In Plaintiffs' damages calculation (ECF No. 54-9), Cano calculated his overtime wages from June 1, 2020 to August 31, 2020. In his declaration, however, Cano states that he worked from June 1, 2020 to September 30, 2020. (ECF No. 54-6 ¶ 3). Accordingly, the Court has calculated Cano's damages based on his statements in his declaration.
30 weeks * 15 unpaid hours/week = 450 unpaid overtime hours.
2. Liquidated Damages
Liquidated damages are calculated as the “one hundred percent of the total amount of wages found to be due . . . .” NYLL § 198(1-a). Here, that is equal to Plaintiffs' unpaid overtime wages. See Agureyev, 2021 WL 847977, at *10 (awarding liquidated damages of 100% of unpaid wages where defendants had defaulted).
Accordingly, the Court respectfully recommends that Plaintiffs be awarded liquidated damages as follows:
Plaintiff
Overtime Wages Awarded
Liquidated Damages Awarded
Amaya
$5,780.00
$5,780.00
Reyes
$6,800.00
$6,800.00
Mondragon
$3,825.00
$3,825.00
Garcia
$3,825.00
$3,825.00
Diaz
$7,650.00
$7,650.00
Cano
$4,080.00
$4,080.00
Mesia
$5,440.00
$5,440.00
Belecela
$7,425.00
$7,425.00
TOTAL
$44,825.00
3. Statutory Damages
As set forth above, Plaintiffs have shown that Defendants are liable for statutory damages under the WTPA. (See § III.C.3.e, supra). Violations of § 195(1) result in damages of $50 per workday, per employee, up to a maximum of $5,000, which is reached after 100 days. NYLL § 198(1-b). Violations of § 195(3) result in damages of $250 per workday, per employee, up to a maximum of $5,000, which is reached after 20 days. NYLL § 198(1-d).
Because Defendants failed to provide Plaintiffs the required written wage notices or statements for the duration of their employment, the Court respectfully recommends awarding Plaintiffs statutory damages as follows:
| Plaintiff | Time Period | Days Worked | Statutory Damages Under NYLL § 195(1) | Statutory Damages Under NYLL § 195(3) | Total |
| Amaya | 05/01/2020-08/31/2020 | $5,000.00 | $5,000.00 | $10,000.00 | |
| Reyes | 05/01/2020-08/31/2020 | 102 | $5,000.00 | $5,000.00 | $10,000.00 |
| Mondragon | 05/01/2020-08/31/2020 | $4,250.00 | $5,000.00 | $9,250.00 | |
| Garcia | 05/01/2020-08/31/2020 | 85 | $5,000.00 | $9,250.00 | |
| Diaz | 05/01/2020-08/31/2020 | 85 | $4,250.00 | $5,000.00 | $9,250.00 |
| Cano | 06/01/2020-09/30/2020 | 85 | $4,250.00 | $5,000.00 | $9,250.00 |
| Mesia | 05/01/2020-08/31/2020 | 102 | $5,000.00 | $5,000.00 | $10,000.00 |
| Belecela | 08/01/2018-02/28/2019 | $5,000.00 | $5,000.00 | $10,000.00 | |
| TOTAL | $37,000.00 | $40,000.00 | $77,000.00 |
17 weeks * 6 workdays per week = 102 days.
17 weeks * 5 workdays per week = 185 days.
85 days * $50 per day = $4,250.00.
30 weeks * 5 workdays per week = 150 days.
In summary, the Court recommends Plaintiffs be awarded damages as follows:
| Plaintiff | Overtime Wages | Liquidated Damages | Statutory Damages | Total |
| Amaya | $5,780.00 | $5,780.00 | $10,000.00 | $21,560.00 |
| Reyes | $6,800.00 | $6,800.00 | $10,000.00 | $23,600.00 |
| Mondragon | $3,825.00 | $3,825.00 | $9,250.00 | $16,900.00 |
| Garcia | $3,825.00 | $3,825.00 | $9,250.00 | $16,900.00 |
| Diaz | $7,650.00 | $7,650.00 | $9,250.00 | $24,550.00 |
| Cano | $4,080.00 | $4,080.00 | $9,250.00 | $17,410.00 |
| Mesia | $5,440.00 | $5,440.00 | $10,000.00 | $20,880.00 |
| Belecela | $7,425.00 | $7,425.00 | $10,000.00 | $24,850.00 |
| TOTAL | $166,650.00 |
4. Post-judgment Interest
Plaintiffs also seek post-judgment interest. (ECF No. 1 at 13). The applicable federal statute provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . . calculated from the date of entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding . . . the date of the judgment.” 28 U.S.C. § 1961. The Second Circuit has explained that an award of post-judgment interest is mandatory. See Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008); see also Suriel, 2022 WL 1750232, at *17 (awarding post-judgment interest). Given the mandatory nature of postjudgment interest, the Court respectfully recommends that Plaintiffs be awarded post-judgment interest in an amount consistent with 28 U.S.C. § 1961.
E. Claims that Should be Dismissed as Abandoned or for Failure to Prosecute
In the Complaint, Plaintiffs sought prejudgment interest on their compensatory damages, as well as an award of attorneys' fees and costs. (ECF No. 1 at 13). Neither Plaintiffs' proposed judgment nor the Damages Submission, however, references prejudgment interest, much less provides a calculation. (ECF Nos. 44; 54). Similarly, these submissions neither request nor provide documentary support for an award of attorney's fees or costs. (ECF Nos. 44; 54). Therefore, the Court assumes that Plaintiffs have “abandoned [their] request for attorney's fees and costs and pre-judgment interest.” Time Inc. Retail v. Newsways Services, Inc., No. 16 Civ. 9479 (VSB) (JLC), 2018 WL 316995, at *4 (SDNY Jan. 8, 2018), adopted by, 2018 WL 2332067 (S.D.N.Y. May 22, 2018); See Melgadejo v. S & D Fruits & Vegetables Inc., No. 12 Civ. 6852 (RA) (HBP), 2015 WL 10353140, at *2 n.1 (S.D.N.Y. Oct. 23, 2015) (deeming abandoned requests for pre-judgment interest, post-judgment interest, and damages for conversion set forth in complaint but not in inquest submission), adopted by, 2016 WL 554843 (S.D.N.Y. Feb. 9, 2016); see also Maldonado v. Landzign Corp., No. 15 Civ. 3054 (DRH) (GRB), 2016 WL 4186815, at *4 n.3 (E.D.N.Y. July 14, 2016) (request for pre-judgment interest “deemed abandoned” where made in the complaint but not in papers supporting motion for default), adopted by, 2016 WL 4186982 (E.D.N.Y. Aug. 8, 2016). Accordingly, the Court does not recommend an award of pre-judgment interest, attorneys' fees, or costs.
Additionally, in the Damages Submission, Plaintiffs' counsel states that, “[d]espite numerous attempts” over a two-month period, counsel was “unable to reach [] Fuentes to verify his allegations and provides an affidavit in support of his alleged damages.” (ECF No. 54 at 1 n.1). To date, counsel has not filed any support for Fuentes' alleged damages or otherwise communicated with the Court regarding Fuentes' intent to prosecute his claims. Accordingly, the Court respectfully recommends that Fuentes' claims be dismissed under Rule 41 for failure to prosecute, or, in the alternative, that Fuentes be given 30 days to show cause why his claims should not be dismissed. Munson v. Diamond, No. 15 Civ. 425 (DAB) (BCM), 2017 WL 4863096, at *12 (S.D.N.Y. June 1, 2017), adopted by, 2017 WL 4862789 (S.D.N.Y. Oct. 26, 2017); see Fed. R. Civ. P. 41(b) (providing the Court with the authority to dismiss a case for failure to prosecute).
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that:
(1) Plaintiffs be awarded $166,650.00 in damages against all Defendants, jointly and severally, as follows:
a. Amaya be awarded $21,560.00 in damages, comprised of: (i) $5,780.00 in unpaid overtime wages; (ii) $5,780.00 in liquidated damages; and (iii) $10,000.00 in statutory damages;
b. Reyes be awarded $23,600.00 in damages, comprised of: (i) $6,800.00 in unpaid overtime wages; (ii) $6,800.00 in liquidated damages; and (iii) $10,000.00 in statutory damages;
c. Mondragon be awarded $16,900.00 in damages, comprised of: (i) $3,825.00 in unpaid overtime wages; (ii) $3,825.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
d. Garcia be awarded $16,900.00 in damages, comprised of: (i) $3,825.00 in unpaid overtime wages; (ii) $3,825.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
e. Diaz be awarded $24,550.00 in damages, comprised of: (i) $7,650.00 in unpaid overtime wages; (ii) $7,650.00 in liquidated damages; and (iii) $9,250.00 in statutory damages;
f. Cano be awarded $17,410.00 in damages, comprised of: (i) $4,080.00 in unpaid overtime wages; (ii) $4,080.00 in liquidated damages; and (iii) $9,2500.00 in statutory damages;
g. Mesia be awarded $20,880.00 in damages, comprised of: (i) $5,440.00 in unpaid overtime wages; (ii) $5,440.00 in liquidated damages; and (iii) $10,000.00 in statutory damages; and
h. Belecela be awarded $24,850.00 in damages, comprised of: (i) $7,425.00 in unpaid overtime wages; (ii) $7,425.00 in liquidated damages; and (iii) $10,000.00 in statutory damages.
(2) Plaintiffs be awarded post-judgment interest pursuant to 28 U.S.C. § 1961.
(3) Plaintiffs be awarded no pre-judgment interest, attorneys' fees, or costs.
(4) The Default Order be VACATED as to Fuentes and that Fuentes' claims be DISMISSED WITHOUT PREJUDICE under Fed.R.Civ.P. 41 for failure to prosecute, or, in the alternative, Fuentes be given 30 days to show cause why his claims should not be dismissed.
Plaintiffs shall serve a copy of this Report and Recommendation on Defendants by February 1, 2023 and promptly file proof of service on the docket.
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 (14) 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), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Schofield.
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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).