Opinion
17-CV-1205 (VSB) (JW)
05-12-2023
RICARDO CASTRO, et al., Plaintiffs, v. AABC CONSTRUCTION, INC., et al., Defendants.
TO THE HONORABLE VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE.
ORDER
JENNIFER E. WILLIS, UNITED STATES MAGISTRATE JUDGE.
Before the Court is a reference for a damages inquest as to defaulting defendants AABC Construction, Inc. a/k/a AABC Plumbing (“Defendant AABC”) and Daniel Sheeri (“Defendant Sheeri,” together the “Defendants”). For the following reasons, I recommend that Plaintiffs Ricardo Castro (“Plaintiff Castro”) and Jeff Jackson (“Plaintiff Jackson,” together the “Plaintiffs”) be awarded damages under the New York Labor Law (“NYLL”) in the amounts set out below for failure to keep records and provide wage statements, unpaid overtime wages, liquidated damages, and attorneys' fees and costs, plus pre-judgment interest and post-judgment interest.
BACKGROUND
A. Factual Background
In light of Defendants' default, the well-pleaded allegations in Plaintiffs' Amended Complaint, dated April 26, 2017 (Dkt. No. 11) (hereinafter “Am. Compl.”), are deemed to be true, except for those allegations relating to damages. See Santillan v. Henao, 822 F.Supp.2d 284, 290 (E.D.N.Y. 2011) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). With respect to Plaintiffs' claims for damages, Plaintiffs have submitted their Proposed Findings of Fact and Conclusions of Law, dated February 10, 2023 (Dkt. No. 190), along with a letter amending calculation errors, dated February 13, 2023 (Dkt. No. 191), and supporting declarations and exhibits, which have been submitted in connection with this damages inquest.
Plaintiffs are former employees of Defendant AABC operating under the name “AABC Construction, Inc.” Am. Compl. ¶ 1. Plaintiffs were hired by Defendants to perform plumbing services for an array of clients. Am. Compl. ¶ 18. At the time of hire, Defendants told Plaintiffs that they were being hired as independent contractors and would be paid twenty-five percent of the net profit that Defendants earned from each job Plaintiffs performed. Am. Compl. ¶¶ 19-20. However, Defendants treated Plaintiffs more like employees by allowing Plaintiffs to perform services for Defendants' clients in Defendants' name, drive Defendants' van, and use Defendants' debit card to purchase parts and supplies. Am. Compl. ¶¶ 39; 56. Furthermore, Defendants required Plaintiffs to provide services at their discretion, forbid Plaintiffs from performing work for anyone other than Defendants, set Plaintiffs' schedule, and mandated that Plaintiffs receive prior approval before taking time off. Am. Compl. ¶¶ 39; 56; 31; 21.
Plaintiffs worked an average of 50 to 70 hours per week without appropriate overtime compensation. Am. Compl. ¶¶ 3-4; 44; 61. Plaintiff Castro worked from 8:00 AM to between 5:00 and 7:00 PM weekdays and every other weekend for the first two years of his employment, and every third weekend thereafter. Am. Compl. ¶¶ 42-43. Plaintiff Jackson was required to work from 8:00 AM to between 5:00 and 7:00 PM weekdays, and every third weekend initially and, later, every other weekend. Am. Compl. ¶¶ 59-60.
Defendants did not track the amount of hours Plaintiff worked at any location nor did Defendant Sheeri provide Plaintiffs with records showing what Defendants had billed on each job, or with documentation of the costs being deducted, in violation of the wage statements provisions of the NYLL. Am. Compl. ¶¶ 29-30; 105-107. As a result, Plaintiffs were not provided with the opportunity to independently verify that their wages were actually the agreed-upon 25% of Defendants' net profit. Am. Compl. ¶¶ 46; 63. Consequently, Defendants did not comply with the recordkeeping requirements of the Fair Labor Standards Act (“FLSA”) and the NYLL, by “failing to maintain accurate and complete timesheets and payroll records.” Am. Compl. ¶ 74. In addition, Defendants failed to post required wage and hours posted in the workplace, as required by the NYLL. Am. Compl. ¶ 73.
B. Procedural History
Plaintiffs commenced this action by filing a Complaint on February 16, 2017 (Dkt No. 1) and an Amended Complaint on April 26, 2017 (Dkt. No. 11). Defendant Sheeri answered the Complaint pro se on April 19, 2017 (Dkt. No. 9) as well as the Amended Complaint on June 14, 2017 (Dkt. No. 22). However, Defendant AABC did not answer or otherwise respond to the Amended Complaint, and the Clerk of Court entered a certificate of default against AABC on June 14, 2017 (Dkt. No. 21).
After five years of litigation, Defendant Sheeri informed the Court on April 22, 2022, before trial was scheduled to begin, that he no longer intended to defend the action (Dkt No. 141). Upon motion by Plaintiffs, the Honorable Vernon S. Broderick, U.S.D.J., directed the Clerk of Court to enter default against Defendant Sheeri. See Order dated October 21, 2022 (Dkt. No. 162). On October 24, 2022, the Clerk of Court entered a certificate of default against Defendant Sheeri (Dkt. No. 163).
In addition, Judge Broderick ordered Defendants to file an opposition to the Order to Show Cause for a Default Judgment by November 22, 2022. See Order dated November 9, 2022 (Dkt. No. 173). A telephonic hearing on the Order to Show Cause took place on January 5, 2023 in which Judge Broderick ordered that default judgment as to liability be entered in favor of Plaintiffs and against Defendants (Dkt. No. 177). On the same date, the matter was referred to this Court for an inquest on damages (Dkt. No. 178).
This Court subsequently ordered Plaintiffs to prepare and file (1) proposed findings of fact and conclusions of law and (2) an inquest memorandum of law, accompanied by supporting affidavits and exhibits, setting forth proof of their damages. See Order dated January 6, 2023 (Dkt. No. 179). Plaintiffs complied with this order and on February 10, 2023 filed the Inquest Memorandum (Dkt. No. 186) (hereinafter “Inquest Memo.”), the Proposed Findings of Fact and Conclusions of Law (Dkt. No. 190), the Declaration of Ricardo Castro in Support of Inquest (Dkt. No. 187) (hereinafter “Castro Decl.”), the Declaration of Jeff Jackson in Support of Inquest (Dkt. No. 188) (hereinafter “Jackson Decl.”), and the Declaration of Christopher Neff in Support of Inquest (Dkt. No. 189) (hereinafter “Neff Decl.”).
That Order further ordered Defendants to prepare and file any opposing materials by February 17, 2023. See Order dated January 6, 2023 (Dkt. No. 179). Defendants did not file anything by that date.
DISCUSSION
A. Applicable Legal Standards
A “default is an admission of all well-pleaded allegations against the defaulting party.” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). “There is no question that a default judgment establishes liability.” Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995). A default judgment does not, however, address the question of damages. Thus, when conducting a damages inquest, all factual allegations of the complaint are accepted as true, except those pertaining to damages. See Au Bon Pain Corp., 653 F.2d at 64-65. “The court must determine the amount of damages, actual or statutory, that may be assessed.” Santillan, 822 F.Supp.2d at 290. “The court must also ensure that there is a reasonable basis for the damages specified in a default judgment.” Id.
In order to support a claim for damages, “[a] plaintiff must therefore substantiate a claim with evidence to prove the extent of damages.” Almanzar v. 1342 St. Nicholas Avenue Restaurant Corp., No. 14-CV-07850 (VEC) (DF), 2016 WL 8650464, at *4 (S.D.N.Y. Nov. 7, 2016) (Dkt. No. 76) (citing Trehan v. Von Tarkanyi, 63 B.R. 1001, 1008 n.12 (S.D.N.Y. 1986). The plaintiff “must introduce sufficient evidence to establish the amount of damages with reasonable certainly.” RGI Brands LLC v. Cognac Brisset-Aurige, S.A.R.L., No. 12-CV-01369 (LGS) (AJP), 2013 WL 1668206, at *6 (S.D.N.Y. Apr. 18, 2013) (Dkt. No. 40). “The plaintiff is entitled to all reasonable inferences from the evidence it presents.” U.S. ex rel. Nat. Dev. & Const. Corp. v. U.S. Envtl. Universal Servs. Inc., No. 11-CV-00730 (CS) (PED), 2014 WL 4652712, at *3 (S.D.N.Y. Sept. 2, 2014) (Dkt. No. 72).
Where there is no submission from a defaulting defendant, the Court must assess whether the plaintiff has provided a sufficient basis for determining damages. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (noting “the court's obligation to ensure that the damages were appropriate”). The plaintiff's submitted proofs may serve as the sole basis for the Court's determination evaluation of plaintiff's damages claim. See, e.g., Garden City Boxing Club, Inc. v. Hernandez, No. 04-CV-02081 (LAP) (DF), 2008 WL 4974583, at *2 (S.D.N.Y. Nov. 24, 2008) (Dkt. No. 15) (“[A] hearing is not required where the plaintiff provides the court with evidence sufficient to permit a damages calculation.”). While a hearing may be held on the issue of damages, the Federal Rules of Civil Procedure “leave[] the decision of whether a hearing is necessary to the discretion of the district court.” Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993).
A defendant in default “deprive[s] the plaintiff of the necessary employee records… thus hampering plaintiff's ability to prove his damages.” Santillan, 822 F.Supp.2d at 294 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946) (stating that when an employer has not kept proper records under the FLSA, the employee should not be penalized, and that “an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated”)); see Almanzar, 2016 WL 8650464, at *5 (extending the same principle to claims brought under the NYLL). In these situations, a plaintiff can meet the burden of proof “by relying on recollection alone,” and in the absence of rebuttal from the employer the plaintiff's recollections “are presumed to be correct.” Santillan, 822 F.Supp.2d at 294 (E.D.N.Y. 2011) (collecting cases). Furthermore, the NYLL states that in cases where an employer fails “to keep adequate records or provide statements of wages to employees… the employer in violation shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.” N.Y. Lab. L. § 196-a(a).
Although a plaintiff may be “entitled to recover unpaid minimum wages and overtime pay under both the FLSA and the [NYLL], [he or she] may not recover twice.” Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-CV-3725 (DC), 2010 WL 4159391, at *2 (S.D.N.Y. Sept. 30, 2010). Instead, Plaintiffs “may recover under the statute which provides the greatest amount of damages.” Jiao v. Shi Ya Chen, No. 03-CV-0165 (DF), 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007). The statute of limitation under the FLSA is two years unless an employer's violations are found to be “willful,” in which case it extends for three years. 29 U.S.C. § 255(a). The applicable statute of limitations for claims under the NYLL, on the other hand, is six years. N.Y. Lab. L. § 663(3). Thus, to the extent that Plaintiffs' allegations allow for recovery under both FLSA and NYLL, the calculation of damages will be governed by the NYLL.
B. Determination of Damages
1. Recordkeeping and Wage Statement Claims
The NYLL requires employers to provide employees, at the time of hiring, with a wage notice containing certain basic information such as the rate of pay; allowances claimed, if any; the regular pay day; any “doing business as” names used by the employer; and the employer's physical address and telephone number. N.Y. Lab. L. § 195(1)(a). The NYLL also requires employers to give employees a wage statement with each payment of wages. N.Y. Lab. L. § 195(3). Each wage statement must list information including the dates of work covered by that payment of wages, the employer's address and phone number, the applicable rate or rates of pay, applicable deductions, and any allowances claimed as part of the minimum wage. Id. Violation of § 195(1) carries with it damages of “fifty dollars for each work day that the violations occurred or continue to occur, but not to exceed a total of five thousand dollars.” N.Y. Lab. L. § 198(1-b). Violation of § 195(3) carries with it damages of “two hundred fifty dollars for each work day that the violations occurred or continue to occur,” also capped at five thousand dollars. N.Y. Lab. L. § 198 (1-d).
As both Plaintiff Castro and Plaintiff Jackson worked for Defendants for over 100 days and experienced on-going violations of the wage notice and statement provisions, the statutory cap is mandated for each violation. As such, Plaintiff Castro is entitled to $10,000 in damages for the NYLL's wage statement and wage notice requirements. Plaintiff Jackson is also entitled to $10,000 for the same. In total, I recommend Plaintiffs be awarded $20,000.00 in damages for violation of the NYLL's wage statement and wage notice requirements.
2. Unpaid Overtime Wages Claims
Plaintiffs seek recovery for failure to pay overtime compensation in violation of both the NYLL and FLSA. See Inquest Memo. at 1. Because Defendants defaulted and the Amended Complaint alleges that all of the violations were undertaken “intentionally” and “willfully,” the plaintiffs are entitled to a finding that Defendants' conduct was willful, and the three-year statute of limitations will apply. Am. Compl. ¶¶ 71, 72, 74; see also Dong v. CCW Fashion Inc., No. 06-CV-4973 (LAP) (DFE), 2009 WL 884680, at *4 (S.D.N.Y. Feb. 19, 2009), report and recommendation adopted, No. 06-CV-4973 (LAP), 2009 WL 884668 (S.D.N.Y. Apr. 1, 2009). However, as noted previously, the statute of limitations under the NYLL is six years, and thus, the calculation of damages will proceed in accordance with the NYLL.
Like the FLSA, the NYLL sets the overtime hourly pay at one and one-half times the employee's regular hourly “rate for hours worked in excess of 40 hours in one workweek.” 12 N.Y.C.R.R § 142-2.2. “There is a rebuttable presumption that an employer's payment of a weekly salary represents compensation for the first 40 hours of an employee's work-week; the burden is on the employer to rebut this presumption with evidence that the employer and employee had an agreement that the employee's weekly compensation would cover a different number of hours.” Jiao, 2007 WL 4944767, at *13. Because Defendants have defaulted and have not rebutted this presumption, this Court will proceed in accordance with the presumption.
Plaintiff Castro alleges that he was employed by Defendants from approximately June 2012 to December 2016. Castro Decl. ¶ 5. During this time period, Plaintiff Castro worked 55 hours per week at a weekly rate of $650 from mid-June 2012 to mid-June 2013; 60 hours per week at a weekly rate of $650 from mid-June 2013 to mid-August 2014; 55 hours per week at a weekly rate of $650 from mid-August 2014 to mid-October 2014; 55 hours per week at a weekly rate of $600 from October 18, 2014 to March 20, 2015; 55 hours per week at a weekly rate of $650 from March 21, 2015 to September 4, 2015; 55 hours per week at a weekly rate of $500 from September 5, 2015 to January 1, 2016; 55 hours per week at a weekly rate of $450 from January 2, 2016 to February 19, 2016; 55 hours per week at a weekly rate of $400 from February 20, 2016 to April 2016; and 60 hours per week at a weekly rate of $400 from April 2016 until December 2, 2016. Castro Decl. ¶¶ 7-10; 13-18.
Plaintiff Castro's damages for unpaid wages therefore are calculated in the table that follows:
For both Plaintiffs' damages calculations, where exact dates were provided, the Court calculated the exact number of weeks in the period, including the number of days in the interest of obtaining the most accurate calculations possible. Where inexact dates were provided (e.g., “Mid-June 2012 to Mid-June 2013”), the Court defaulted to Plaintiffs' determination of the number of weeks in the period because the burden of proof rests with the plaintiff to establish the period of alleged employment. See, e.g., Asfaw v. BBQ Chicken Don Alex No. 1 Corp, No. 14-CV-5665 (CBA) (RML), 2015 WL 13731362, at *10 n.4 (E.D.N.Y. Aug. 26, 2015) (choosing dates for damages calculations that were closest to the dates plaintiff's counsel used); see also Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 89 (E.D.N.Y. 2012) (“Since [plaintiff] alleges only that she ended her employment during the month of June 2007, but has not proved the specific date of her separation from employment within that month, [the Court] must assign one for purposes of calculating her damages. In the interest of simplicity, [the Court] will assume that her employment ended on June 9, 2007, exactly 13 months after it began”).
Plaintiff Castro's Unpaid Overtime Calculation
Pay Period
Hours Worked Per Week
Weekly Pay
Hourly Wage
Lawful Overtime Wage
Overtime Hours Worked Weekly
Weeks in Pay Period
Total Amount Owed in Pay Period
Mid-June 2012 -Mid-June 2013
55
$650
$16.25
15
52
$19,012.50
Mid-June 2013 -MidAugust 2014
60
$650
$16.25
$24.38
20
60
$29,250.00
MidAugust 2014 - MidOctober 2014
55
$650
$16.25
$24.38
15
9
10/18/14 - 3/20/15
55
$600
$15
$22.50
15
22
$7,425.00
3/21/15 - 9/4/15
55
$650
$16.25
$24.38
15
24
$8,755.00
9/5/15 - 1/1/16
55
$500
$12.50
$18.75
15
17
$4,781.25
1/2/16 - 2/19/16
55
$450
$11.25
15
7
55
$400
$10
$15
15
6
$1,350.00
60
$400
$10
$15
20
35
$10,500.00
The unrounded figure of $24.375 was used for this and subsequent calculations.
The unrounded figure of $3,290.625 was used for total compensation calculations.
The unrounded figure of $16.875 was used for this calculation.
The unrounded figure of $1,771.875 was used for total compensation calculations.
Due to an inexact timeline, a date of April 1, 2016 was used in calculations to match Plaintiffs' six-week calculation.
Due to an inexact timeline, a date of April 2, 2016 was used in calculations to ensure continuity with the April 1 date mentioned in the immediately preceding footnote.
In the Inquest Memo., the imprecise dates of “April 2016 to December 2016” was provided (Inquest Memo. at 8), but in the Castro Declaration, a final end date of December 2, 2016 was provided. Castro. Decl. ¶ 18. For purposes of this Court's calculation, the date of December 2, 2016 was utilized.
Thus, Plaintiff Castro is entitled to damages as follows: $19,012.50 for weeks worked from mid-June 2012 to mid-June 2013; $29,250.00 for weeks worked from mid-June 2013 to mid-August 2014; $3,290.63 for weeks worked from mid-August 2014 to mid-October 2014; $7,425.00 for weeks worked from October 18, 2014 to March 20, 2015; $8,755.00 for weeks worked from March 21, 2015 to September 4, 2015; $4,781.25 for weeks worked from September 5, 2015 to January 1, 2016; $1,771.88 for weeks worked from January 2, 2016 to February 19, 2016; $1,350.00 for weeks worked from February 20, 2016 to April 1, 2016; and $10,500.00 for weeks worked from April 2, 2016 to December 2, 2016. In total, Plaintiff Castro's damages for unpaid overtime wages are $86,156.25.
Plaintiff Jackson was employed by Defendants from approximately July 2009 to August 2011, and then again from August 24, 2012 to April 8, 2016, with the relevant time period beginning from February 16, 2011. Jackson Decl. ¶¶ 5-6, dated February 1, 2023 (Dkt. No. 188). During this time period, Plaintiff Jackson worked 60 hours per week at a weekly rate of $750 from February 17, 2011 to August 1, 2011 and again from August 24, 2012 to March 21, 2013; 55 hours per week at a weekly rate of $1,000 from March 22, 2013 to April 26, 2013; 55 hours per week at a weekly rate of $750 from April 27, 2013 to mid-June 2013; 60 hours per week at a weekly rate of $750 from mid-June 2013 to mid-August 2014; 55 hours per week at a weekly rate of $750 from mid-August 2014 to October 2, 2014; 55 hours per week at a weekly rate of $700 from November 1, 2014 to January 1, 2015; 55 hours per week at a weekly rate of $750 from January 2, 2015 to January 1, 2016; 55 hours per week at a weekly rate of $450 from January 2, 2016 to April 22, 2016. Jackson Decl. ¶¶ 8-12; 15-21.
Due to an inconsistency in the Jackson Declaration in which he stated that he resumed working for Defendants on August 24, 2012 ¶ 5 but August 17, 2012 in ¶ 9, this Court will presume the date that results in lesser damages for the Plaintiff (i.e., August 24, 2012).
Plaintiff Jackson's damages for unpaid wages are calculated as follows:
Thus, Plaintiff Jackson is entitled to damages as follows: $13,339.29 for weeks worked from February 17, 2011 to August 1, 2011; $16,875.00 for weeks worked from August 24, 2012 to March 21, 2013; $2,892.86 for weeks worked from March 22, 2013 to April 26, 2013; $2,953.13 for weeks worked from April 27, 2013 to mid-June 2013; $33,750 for weeks worked from mid-June 2013 to mid-August 2014; $2,953.13 for weeks worked from mid-August 2014 to October 2, 2014; $3,487.50 for weeks worked from November 1, 2014 to January 1, 2015; $21,997.77 for weeks worked from January 2, 2015 to January 1, 2016; and $4,050.00 for weeks worked from January 2, 2016 to April 22, 2016. In total, Plaintiff Jackson's damages for unpaid overtime wages are $102,298.66.
Plaintiff Jackson's Unpaid Overtime Calculation
Pay Period
Hours Worked Per Week
Weekly Pay
Hourly Wage
Lawful Overtime Wage
Overtime Hours Worked Weekly
Weeks in Pay Period
Total Amount Owed in Pay Period
2/17/11 -8/1/11
60
$750
$18.75
20
8/24/12 3/21/13
60
$750
$18.75
$28.13
20
30
$16,875.00
3/22/13 -4/26/13
55
$1,000
$25
$37.50
15
4/27/13 - Mid-June 2013
55
$750
$18.75
$28.13
15
7
Mid-June 2013 - MidAugust 2014
60
$750
$18.75
$28.13
20
60
$33,750
Mid-August 2014 -10/2/14
55
$750
$18.75
$28.13
15
7
11/1/14 -1/1/15
55
$700
$17.50
$26.25
15
$3,487.50
1/2/15 - 1/1/16
55
$750
$18.75
$28.13
15
1/2/16 -4/22/16
55
$450
$11.25
15
16
$4,050.00
The unrounded figure of $28.125 was used for this and subsequent calculations.
The unrounded figure of 23 weeks and 5 days (23.7142857142857 weeks) was used for this calculation.
The unrounded figure of $13,339.2857142857 was used for total compensation calculations.
The unrounded figure of 5 weeks and 1 day (5.14285714285714 weeks) was used for this calculation.
The unrounded figure of $2,892.85714285714 was used for total compensation calculations.
The unrounded figure of $2,953.125 was used for total compensation calculations.
See note 15.
The unrounded figure of 8 weeks and 6 days (8.85714285714286 weeks) was used for this calculation.
The unrounded figure of 52 weeks and 1 day (52.1428571428571 weeks) was used for this calculation.
The unrounded figure of $21,997.7678571429 was used for total compensation calculations.
The unrounded figure of $16.875 was used for this calculation.
Plaintiff Castro's damages for unpaid overtime wages are $86,156.25. Plaintiff Jackson's damages for unpaid overtime wages are $102,298.66. The total amount in damages for unpaid overtime wages is $188,454.91.
3. Liquidated Damages
Under the NYLL, unless an employer can provide a “good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total of such underpayments [is] found to be due.” N.Y. Lab. L. § 663(1); N.Y. Lab. L. § 198(1-a). “The employer bears the burden of establishing, by plain and substantial evidence, subjective good faith and objective reasonableness.” Galeana v. Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 317 (S.D.N.Y. 2014) (interpreting the standard for purposes of liquidated damages under the FLSA); Yu G. Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240, 261 (S.D.N.Y. 2008) (noting the analysis is the same for liquidated damages under the NYLL as under the FLSA). As Defendants are in default, they have not demonstrated good faith, and as such liquidated damages are available to Plaintiffs. See Galeana, 120 F.Supp.3d at 317; Almanzar, 2016 WL 8650464, at *15.
Plaintiffs' liquidated damages are therefore the sum of their damages for the unpaid wages. For Plaintiff Castro, this is $86,156.25. For Plaintiff Jackson, liquidated damages are $188,454.91. In total, liquidated damages are $188,454.91.
4. Pre-Judgment Interest for Unpaid Wages
Plaintiffs seek pre-judgment interest on their claims under the N.Y.L.L. for unpaid wages. See Inquest Memo. at 11. The NYLL allows for recovery of prejudgment interest on any underpayments. N.Y. Lab. L.§ 663(1). Prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages. Flores Garcia v. Grocery-Taqueria Mexicana Corp., No. 19-CV-9482 (PAE) (BCM), 2022 WL 17979917, at *11 (S.D.N.Y. Nov. 29, 2022) (internal quotations omitted).
The New York Civil Practice Law and Rules further set a prejudgment interest rate of 9% per annum simple interest. N.Y. C.P.L.R. § 5004. When “damages were incurred at various times,” as in this case, interest may be calculated “upon all of the damages from a single reasonable intermediate date.” N.Y. C.P.L.R. § 5001(b). Where unpaid wages accumulate over time rather than all being payable at once, courts “often choose the midpoint of the plaintiff's employment within the limitations period.” Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 331-32 (S.D.N.Y. 2021) (internal quotations omitted). Thus, the formula to calculate prejudgment interest here is: (rate of interest) (principal) (number of days that the interest has accrued). Morales v. MW Bronx, Inc., No. 15-CV-6296 (TPG), 2017 U.S. Dist. LEXIS 11071, at *10 (S.D.N.Y. Jan. 26, 2017).
Plaintiffs are entitled to interest on the amount of their unpaid wages, which is $86,156.25 for Plaintiff Castro and $102,298.66 for Plaintiff Jackson. The Court finds that the simple nine percent per annum interest is warranted. However, unlike Plaintiffs' attorney, the Court will calculate pre-judgment interest at nine percent annually from the midpoint between the Plaintiffs' employment within the limitations period, and not, from the midpoint between the date of hire (or beginning of statutory period as in Plaintiff Jackson's case) and the date on which the Complaint was filed. See Inquest Memo. at 11-12.
Plaintiff Castro's pre-judgment interest for unpaid wages will be calculated by the Court of Clerk, using September 8, 2014 as the midpoint date between June 14, 2012 and December 2, 2016. Plaintiff Jackson's pre-judgment interest for unpaid wages will be calculated by the Court of Clerk, using September 16, 2013 as the midpoint date between February 17, 2011 and April 22, 2016. The total pre-judgment interest will be determined by the Court of Clerk.
The calculation is as follows: (0.09/365)(86,156.26)(number of days, as of the date of judgment).
The calculation is as follows: (0.09/365)(102,298.66)(number of days, as of the date of judgment).
5. Attorney's Fees
Plaintiffs seek only attorney's fees, and no costs. See Inquest Memo. at 13-15.
Courts in this Circuit use a “presumptively reasonable fee” standard to determine the reasonableness of attorney's fees sought in an action. Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008). This ‘lodestar' is “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). A reasonable hourly rate is “the rate prevailing in the [relevant] community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Farbotko v. Clinton Cnty. of N.Y., 433 F.3d 204, 208 (2d Cir. 2005). In the Southern District of New York, fees for this type of case typically range from $250 to $450 per hour. Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 241 (S.D.N.Y. 2020).
Furthermore, Courts in this Circuit must consider how much time was reasonably expended in order to arrive at the presumptively reasonable fee. Villanueva, 500 F.Supp.3d at 241. A court should exclude from the lodestar calculation “excessive, redundant, or otherwise unnecessary hours.” Id. Courts also consider whether the time entries are documented accurately. Cao v. Chandara Corp., No. 00-CV-8057 (SAS), 2001 WL 34366628, at *6 (S.D.N.Y. July 25, 2001). All applications for attorney's fees must include contemporaneous time records for work performed, specifying the relevant dates, hours expended, and the nature of the work performed. Id.
Plaintiffs seek reimbursement for 498.7 hours expended by counsel, Christopher Neff, who represented them, at a rate of $375 per hour, a total of $187,012. See Inquest Memo. at 13-14. The hourly rate is reasonable since it is within the upper limit of $450 per hour. See, e.g., Santillan, 822 F.Supp.2d at 300 (finding it appropriate to award attorney's fees at the rate of $375 per hour). The costs and time spent are also reasonable, particularly because (i) the case was litigated for five years; (ii) all pre-trial filings were made in preparation of trial, (iii) the Plaintiffs are not seeking recovering for paralegal, administrative, or junior associate time, and (iv) because the time expended is adequately documented. See Inquest Memo. at 14; Neff Decl. Therefore, the Court finds that the requested attorney's fees of $187,012.00 are reasonable.
6. Post-Judgment Interest
Finally, Plaintiffs seek post-judgment interest pursuant to Title 28 U.S.C. § 1961. See Inquest Memo. at 12, dated February 10, 2023 (Dkt. No. 186). According to this provision, “interest shall be allowed on any money judgement in a civil case in a district court.” 28 U.S.C. § 1961. Therefore, the Court awards post-judgment interest here, to be calculated by the Court of Clerk.
RECOMMENDATION
For the reasons stated above, this Court recommends that Plaintiffs be awarded damages as follows: (1) damages for violations of the wage notice and wage statement provisions of the NYLL in the amount of $20,000; (2) damages for unpaid overtime wages under the NYLL in the amount of $188,454.91; (3) liquidated damages in the amount of $188,454.91; (4) attorney's fees and costs in the amount of $187,012; and (5) pre- and post-judgment interest. In total, Plaintiffs are awarded $583,921.82, as well as pre- and post-judgment interest once calculated.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court and on ECF. Any requests for an extension of time for filing objections must be directed to Judge Broderick. Failure to file objections within fourteen days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
SO ORDERED.