Opinion
Civil Action 23Civ.4783 (PAE) (SLC)
08-01-2024
JORGE DE JESUS, individually and on behalf of others similarly situated, Plaintiff, v. GOTHAM CLEANERS INC. (D/B/A GOTHAM CLEANERS) and CORY PERLSON, Defendants.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
TO THE HONORABLE PAUL A. ENGELMAYER, United States District 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 (“WTPA”), Plaintiff Jorge De Jesus (“De Jesus”) sought payment of unpaid wages and related relief against Defendants Gotham Cleaners Inc. (d/b/a Gotham Cleaners) (“Gotham”) and Cory Perlson (“Perlson,” with Gotham, “Defaulting Defendants”). (ECF No. 1 (the “Complaint”)). De Jesus alleged that, during his employment as a laundry service worker at Gotham, Defaulting Defendants failed to pay him the minimum wage and overtime compensation required under the FLSA and NYLL. (Id. ¶¶ 66-85). After Defaulting Defendants failed to appear and defend in this action and the Clerk of the Court entered certificates of default, the Honorable Paul A. Engelmayer entered default judgment as to them and referred the matter for an inquest on damages. (ECF Nos. 24; 30; 40; 41).
The Complaint also named as Defendants Carnegie Valet Cleaning Corp., Carnegie Linen Services, Inc. (d/b/a Carnegie Linen Services), against whom De Jesus voluntarily dismissed his claims pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). (ECF No. 38).
The Court has reviewed De Jesus's proposed findings of fact and conclusions of law (the “Proposed Findings”), damages calculation (the “Damages Chart”), and declarations and exhibits in support thereof. (ECF Nos. 44 - 45-9 (collectively, the “Damages Submission”)). We respectfully recommend that De Jesus be awarded judgment against the Defaulting Defendants as follows:
1. Compensatory damages in the amount of $4,060.68, consisting of $2,642.64 in Straight Time Wages and $1,418.04 in overtime wages;
2. Liquidated damages in the amount of $4,060.68.
3. Pre-judgment interest on De Jesus's compensatory damages ($4,060.68), at a rate of nine percent per year from October 8, 2020 through the date of entry of judgment;
4. Post-judgment interest pursuant to 28 U.S.C. § 1961;
5. Attorneys' fees in the amount of $1,960.00; and
6. Costs in the amount of $542.00.
II. BACKGROUND
A. Factual Background
Unless otherwise indicated, the Court summarizes the facts from the Complaint and the Damages Submission, including the Proposed Findings (ECF No. 44) and the affidavit De Jesus has submitted attesting to his hours worked and other facts about his employment at Gotham. (ECF No. 45-6 (the “Affidavit”)). Given the Defaulting Defendants' default, the Court accepts as true all well-pleaded factual allegations against them 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, internal citations and quotation marks are omitted from case citations.
1. Plaintiff
De Jesus worked as a washer at Gotham from July 2020 until January 2021. (ECF Nos. 1 ¶ 15;45-6 ¶ 6). His duties did not involve discretion or independent judgment but did involve handling detergents and other supplies that moved in interstate commerce. (ECF Nos. 1 ¶ 36; 45-6 ¶ 8). From July 2020 until November 2020, he worked from 7:00 a.m. to 6:00 p.m. three days per week, for a total of 33 hours per week, at a fixed salary of $125.00 per day, which Defaulting Defendants paid by check. (ECF Nos. 1 ¶ 40, 42, 45; 45-6 ¶¶ 9, 11, 12). From December 2020 until January 14, 2021, De Jesus worked from 7:00 a.m. to 6:00 p.m., six days per week, for a total of 66 hours per week, at a fixed salary of $200.00 per day. (ECF Nos. 1 ¶¶ 41, 46; 45-6 ¶¶ 10, 13). Defaulting Defendants granted De Jesus a daily break, but often interrupted it. (ECF Nos. 1 ¶ 47; 45-6 ¶ 14).
Although the Complaint alleges in paragraph 15 that De Jesus worked “until on or about January 2023[,]” it alleges elsewhere that he worked “until on or about January 14, 2021,” (ECF No. 1 ¶ 34), and the Damages Chart only calculates damages through January 14, 2021. (ECF No. 45-7). The Court therefore infers that references to 2023 are typographical errors on the part of De Jesus's counsel and that his employment period was July 2020 to January 14, 2021.
Although De Jesus alleged in the Complaint that he also worked at Gotham from 2016 until January 2020 (ECF No. 1 ¶ 15), he does not make that assertion in his Affidavit (see ECF No. 45-6), and does not include any damages for that period in the Damages Chart. (ECF No. 45-7). Accordingly, the Court deems De Jesus to have waived any damages for the period of 2016 to January 2020. See Reilly v. Commerce, No. 15 Civ. 5118 (PAE) (BCM), 2016 WL 6837895, at *1 n.1 (S.D.N.Y. Oct. 31, 2016) (finding that plaintiff waived relief not raised in inquest submission); Cablevision Sys. N.Y.C. Corp. v. Santiago, No. 02 Civ. 322 (DLC) (DF), 2003 WL 1882254, at *4 n.6 (S.D.N.Y. Mar. 17, 2003) (finding that plaintiff waived category of damages not raised in inquest submissions), adopted by, 2003 WL 1873914 (S.D.N.Y. Apr. 11, 2003).
2. Defaulting Defendants
Defaulting Defendants were De Jesus's joint employers. (ECF No. 1 ¶¶ 22-26). In 2020 and 2021, Gotham had annual sales of at least $500,000.00. (Id. ¶ 30). Gotham was engaged in interstate commerce, including by using in its business supplies that were produced outside of New York. (Id. ¶ 31; see ECF No. 45-6 ¶ 8). Perlson was the owner, officer, or agent of Gotham during De Jesus's employment. (ECF No. 1 ¶ 21). Perlson had the power to hire and fire De Jesus, control the terms and conditions of his employment, and determine the rate and method of his compensation. (ECF Nos. 1 ¶¶ 21, 29; 45-6 ¶ 4).
Defaulting Defendants did not require De Jesus to keep track of his time and did not use a time tracking device to record his hours worked. (ECF Nos. 1 ¶ 48; 45-6 ¶ 15). Defaulting Defendants did not post notices regarding overtime and wages, provide De Jesus with accurate wage statements under the FLSA and NYLL, or give him notices in English and Spanish of his regular rate and date of pay. (ECF Nos. 1 ¶¶ 49-51, 61-62, 87, 90; 45-6 ¶¶ 16-18). Defaulting Defendants failed to pay De Jesus the required minimum wage rate, and although they required him to work additional hours beyond his regular shifts, did not pay him overtime compensation. (ECF No. 1 ¶¶ 53-55, 70-71, 74-75, 79-80, 83-84).
B. Procedural Background
On June 7, 2023, De Jesus filed the Complaint, in which he asserts claims for failure to pay minimum wages under the FLSA and NYLL (the “Minimum Wage Claims”), failure to pay overtime under the FLSA and NYLL (the “Overtime Claims”), failure to provide wage notices and wage statements under the WTPA (the “WTPA Claims”), and failure to pay wages on a regular weekly basis under NYLL (the “Timely Payment Claim”). (ECF No. 1 ¶¶ 66-94). Defaulting Defendants were timely served with the Summons and Complaint. (ECF Nos. 14; 16). After Defaulting Defendants failed to file a timely answer, Judge Engelmayer directed De Jesus to initiate default proceedings and the Clerk of the Court entered certificates of default. (ECF Nos. 17; 24; 30).
On August 18, 2023, De Jesus filed a motion for default judgment against Defaulting Defendants. (ECF Nos. 33-35 (the “Default Motion”)). On August 21, 2023, Judge Engelmayer ordered Defaulting Defendants to show cause why default judgment should not be entered against them. (ECF No. 36 (the “OTSC”)). Defaulting Defendants failed to respond to the OTSC, and on October 31, 2023, Judge Engelmayer entered an order granting the Default Motion and entering a default judgment for De Jesus and against Defaulting Defendants. (ECF No. 40 (the “Default Order”)).
After Judge Engelmayer referred the matter for an inquest on damages (ECF No. 41), the Court entered an order: (1) directing De Jesus to file the Damages Submission; (2) setting a deadline for Defaulting Defendants to respond to the Damages Submission; and (3) warning Defaulting Defendants that if they failed to respond to the Damages Submission or contact the Court to request an in-person hearing, this Report and Recommendation would issue based on the Damages Submission alone and without an in-court hearing. (ECF No. 42 (the “Scheduling Order”)). In response to the Scheduling Order, De Jesus timely filed the Proposed Findings and the Damages Submission. (ECF Nos. 44 - 45-9). De Jesus has filed proof of service of the Complaint, OTSC, Damages Submission, and the Scheduling Order. (ECF Nos. 14; 16; 39; 43; 46). To date, however, Defaulting Defendants have not appeared, responded to the Damages Submission, or 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) (per curiam). 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) (per curiam), 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.” Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *4 (S.D.N.Y. Feb. 26, 2020).
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.” Avail 1 LLC v. Latief, No. 17 Civ. 5841 (FB) (VMS), 2020 WL 5633869, at *4 (E.D.N.Y. Aug. 14, 2020), adopted by, 2020 WL 5633099 (E.D.N.Y. Sept. 21, 2020) (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 Ent., 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) (summary order). The Court must determine “whether the allegations in [the] complaint establish the defendants' liability as a matter of law.” Id. If the Court finds the well-pleaded allegations establish liability, the Court analyzes “whether [p]laintiff has provided adequate support for the relief it seeks.” 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.” Lopez, 2020 WL 915821, at *4.
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.” Getty Images (US) Inc. v. Advernet, Inc., 797 F.Supp.2d 399, 411 (S.D.N.Y. 2011) (quoting Credit Lyonnais Sec. (USA) v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). “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.” Lopez, 2020 WL 915821, at *5. 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) (“damages 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 burden if he proves” enough for the court to make an “inference” that he “has in fact performed work for which he was improperly compensated and if he 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 plaintiffs' “recollections regarding their hours and pay in conducting [the] inquest.” Coley v. Vannguard Urb. Improvement Ass'n, Inc., No. 12 Civ. 5565 (PKC) (RER), 2018 WL 1513628, at *7 (E.D.N.Y. Mar. 29, 2018). The Court “must ensure that Plaintiffs' 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 the Defaulting Defendants, who have failed to appear or otherwise challenge the default. (ECF Nos. 24; 30). The Court's analysis of the relevant factors set forth above reveals, first, that Defaulting Defendants' failure to submit any written reply to De Jesus's Damages Submission, after having been properly served, gives rise to the fair inference 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 De Jesus. 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, the Defaulting Defendants have failed to appear, answer the Complaint, and respond to the Court's orders. Because the requirements of Rule 55 have been satisfied and the relevant factors weigh in favor of De Jesus, the Court respectfully recommends that judgment against the Defaulting Defendants and in favor of De Jesus in the amounts below be entered.
C. Liability
1. Jurisdiction and Venue
As a threshold matter, the Court has subject matter jurisdiction over this action. De Jesus sues 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 De Jesus's “NYLL and WTPA claims because they arise out of the same facts and circumstances as the FLSA claims.” Inga, 2021 WL 3624666, at *6.
The Court may also exercise personal jurisdiction over Defaulting Defendants, which is a “necessary prerequisite to entry of a default judgment.” Pinzon v. 467 Star Deli Inc., No. 22 Civ. 6864 (JGK) (SLC), 2023 WL 5337617, at *4 (S.D.N.Y. July 31, 2023), adopted by, 2023 WL 5334757 (S.D.N.Y. Aug. 18, 2023). The Court has personal jurisdiction over Gotham, which is a New York corporation with its principal place of business in the Bronx, New York. (ECF No. 1 ¶ 20). Perlson is an individual who was an owner, officer, or agent of Gotham. (Id. ¶ 21). De Jesus also properly served each of them. (ECF Nos. 14; 16).
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, De Jesus worked at Gotham from July 2020 until January 14, 2021, and he filed the Complaint on June 7, 2023. (ECF Nos. 1 ¶¶ 15, 34; 45-6 ¶¶ 6, 9-10). Thus, his employment period is entirely within NYLL's six-year statute of limitations and the FLSA's three-year statute of limitations for willful violations, but not its two-year statute of limitations for non-willful violations. Because the NYLL provides for greater relief than the FLSA, we respectfully recommend awarding De Jesus damages under the NYLL. See, e.g., Pinzon, 2023 WL 5337617, at *5 n.3 (explaining that, where greater relief is available under NYLL than under FLSA, “this issue need not be further considered”); 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 (S.D.N.Y. May 31, 2022).
3. FLSA and NYLL Elements
To state a claim for 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 and/or overtime wages.” Tackie v. Keff Enters. LLC, 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, plaintiffs “must allege sufficient factual matter to state a plausible claim that they worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). To recover spread-of-hours pay, plaintiffs must also allege that they worked “more than ten hours per day . . . and [were] not paid an additional hour at the minimum wage rate for days in which [they] worked [ten] or more hours.” Perez Garcia v. Hirakegoma Inc., No. 17 Civ. 7608 (SLC), 2020 WL 1130765, at *4 (S.D.N.Y. Mar. 9, 2020).
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.'” Perez Garcia, 2020 WL 1130765, at *5 (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)). Under the FLSA, “[a]n individual may simultaneously 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 Defaulting Defendants were De Jesus's 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 104-05 (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),“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.'” Perez Garcia, 2020 WL 1130765, at *5 (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 of 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.
NYLL § 190(3) defines “employer” as “any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service.”
De Jesus alleges that Defaulting Defendants employed him as a washer in their laundry business. (ECF Nos. 1 ¶¶ 4, 32, 35; 45-6 ¶¶ 2, 6). He alleges that Defaulting Defendants possessed “operational control over” the laundry business and the terms and conditions of his employment. (ECF No. 1 ¶¶ 21, 25, 29, 78). Accordingly, De Jesus has adequately alleged an employer-employee relationship with Defaulting Defendants. See Pinzon, 2023 WL 5337617, at *7. In any event, by their default, the Defaulting Defendants have admitted their status as De Jesus's employer. See Suriel, 2022 WL 1750232, at *11. Because they were De Jesus's employers, they are jointly and severally liable under the FLSA and NYLL for any damages award. See Pinzon, 2023 WL 5337617, at *7; Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 68586 (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 defendants as employer under the FLSA and NYLL).
b. Interstate Commerce
Under the FLSA, De Jesus must establish that he or his employer was 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”); see also 29 U.S.C. § 203(s)(1) (defining “[enterprise engaged in commerce”).
De Jesus has plausibly alleged that he regularly handled detergents and other supplies that moved in interstate commerce. (ECF Nos. 1 ¶ 36; 45-6 ¶ 8). He has also alleged that, during 2020 and 2021, while he was employed at Gotham, Defaulting Defendants had a gross annual volume of sales not less than $500,000.00. (ECF No. 1 ¶ 30). In addition, Gotham is located in New York City, (ECF No. 1 ¶ 20), and “local 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 also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (E.D.N.Y. 2015) (“[I]t [is] reasonable to infer that the myriad goods necessary to operate a [ ] restaurant with an eat-in dining area and over $500,000.00 in annual sales do not exclusively come from New York State.”). Accordingly, De Jesus's allegations meet the threshold for enterprise liability under the FLSA, see 29 U.S.C. § 203(s)(1)(A), and he has satisfied the interstate commerce element for FLSA liability. See Suriel, 2022 WL 1750232, at *11.
c. Unpaid Minimum Wages
The FLSA and NYLL require an employer to pay at least the statutory minimum wage for each hour an employee works in a work week (“Straight Time Wages”). See 29 U.S.C. § 206(a); 12 N.Y.C.R.R. § 146-1.1(a). The FLSA requires employers to pay employees at least the federal minimum wage for every hour worked, see 29 U.S.C. § 206, or the state minimum wage if it is greater. See 29 U.S.C. § 218(a). “[I]n the absence of rebuttal by defendants, plaintiffs' recollection and estimates of hours worked are presumed to be correct.” Gallego v. Adyar Ananda Bhavean Corp., No. 16 Civ. 4631 (AJN), 2018 WL 4735710, at *6 (S.D.N.Y. Sept. 30, 2018).
Under both the FLSA and NYLL, “all of the time worked during a continuous workday is compensable, save for bona fide meal breaks.” Hart v. Rick's Cabaret Int'l Inc., 60 F.Supp.3d 447, 475 n.15 (S.D.N.Y. 2014) (citing IBP, Inc. v. Alvarez, 546 U.S. 21, 37 (2005)). A meal break is “bona fide” when the employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19(a); see Victor v. Sam's Deli Grocery Corp., 19 Civ. 2965 (SLC), 2022 WL 3656312, at *9 (S.D.N.Y. Aug. 25, 2022). Where the plaintiff “asserts that he did not receive any meal or rest breaks[,] . . . all of [his] time worked [is] compensable.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 235 (S.D.N.Y. 2020), adopted by, 2021 WL 2139441 (S.D.N.Y. May 26, 2021).
The NYLL requires certain employers to provide: (1) for employees who work shifts of more than six hours, a meal period of at least 30 minutes within the period encompassing 11:00 a.m. to 2:00 p.m.; (2) an additional 20-minute period between 5:00 p.m. and 7:00 p.m. for employees whose shifts started before 11:00 a.m. and continued later than 7:00 p.m.; and/or (3) a 45-minute meal period at a time midway between the beginning and end of the shift for employees whose shifts last more than six hours and start between 1:00 p.m. and 6:00 a.m. See NYLL § 162(2)-(4); see also Victor, 2022 WL 3656312, at *9. De Jesus alleges that Defaulting Defendants granted him daily breaks but interrupted or shortened them. (ECF Nos. 1 ¶ 47; 45-6 ¶ 14). Thus, “all of [his] time worked [is] compensable.” Villanueva, 500 F.Supp.3d at 235; accord Victor, 2022 WL 3656312, at *9.
De Jesus does not state the number of employees who worked at Gotham, so the Court applies the lower, small employer minimum wage rate. See Pinzon, 2023 WL 5337617, at *9 (applying lower, small employer rate where plaintiff failed to allege the number of employees); Reyes v. Lincoln Deli Groc. Corp., No. 17 Civ. 2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018) (same). The Court's use of the lower minimum wage impacts the determination whether the Defaulting Defendants are liable for minimum and overtime wage violations, and the calculation of damages, discussed further below.
The New York State minimum wage rate for small employers in New York City during De Jesus's employment at Gotham was $15.00 per hour. NYLL § 652(a)(ii). De Jesus was paid $125.00 per day for three workdays per week from July 2020 until November 2020, or approximately $11.36 per hour, and $200.00 per day for six workdays per week from December 2020 until January 14, 2021, or approximately $18.18 per hour. (ECF Nos. 1 ¶¶ 4546; 45-6 ¶¶ 12-13). Thus, from July 2020 until November 2020, Defaulting Defendants did not pay him the required minimum wage, and he has established Defaulting Defendants' liability for unpaid Straight Time Wages during that five-month period of his employment. See, e.g., Suriel, 2022 WL 1750232, at *13; Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08 Civ. 3725 (DC), 2010 WL 4159391, at *2 (S.D.N.Y. Sept. 30, 2010). In contrast, because Defaulting Defendants paid De Jesus above the minimum wage rate for the six-week period from December 2020 to January 14, 2021, De Jesus has not established their liability for minimum wages for that period.
($125.00 * 3) / 33.
($200.00 * 6) / 66.
d. Unpaid Overtime Wages
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 she worked compensable overtime in a workweek longer than forty hours, and that she was not properly compensated for that overtime.” Tackie, 2014 WL 4626229, at *3.
De Jesus alleges that he regularly worked more than 40 hours per week from December 2020 until January 14, 2021 and that Defaulting Defendants failed to pay him an overtime rate for the hours worked over 40 hours per week. (ECF Nos. 1 ¶¶ 41,46; 45-6 ¶¶ 9-13).Thus, De Jesus has adequately demonstrated Defaulting Defendant's liability for unpaid overtime wages. See Sune], 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).
De Jesus does not allege that he worked more than 40 hours per week between July 1, 2020 and November 30, 2020. (See ECF Nos. 1; 45-6).
e. 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.'” Lopez, 2020 WL 915821, at *10 (quoting 29 U.S.C. § 216(b)). “[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.” Lopez, 2020 WL 915821, at *10. 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.'” Id. (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), adopted by, 2012 U.S. Dist. LEXIS 190479 (S.D.N.Y. Dec. 13, 2012)).
The NYLL also authorizes liquidated damages. See Lopez, 2020 WL 915821, at *10. 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.'” Lopez, 2020 WL 915821, at *10 (quoting 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), adopted by, 2017 WL 111737 (S.D.N.Y. Jan. 11, 2017)). 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) (summary order). A plaintiff recovers “under the statute that provides the greatest relief.” Castillo v. RV Transp., Inc., No. 15 Civ. 527 (LGS), 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016). The NYLL allows for pre-judgment interest in addition to liquidated damages, see NYLL § 198(1-a), but the FLSA does not. See Agureyev, 2021 WL 847977, at *8. Accordingly, because the NYLL “provides greater relief to [De Jesus] . . . the Court will apply its liquidated damages provisions.” Id. (citing Perez Garcia, 2020 WL 1130765, at *9).
Having defaulted, Defaulting Defendants have not carried their burden of demonstrating good faith under the NYLL, see Victor, 2022 WL 3656312, at *12, and therefore De Jesus is entitled to liquidated damages equal to 100% of his unpaid wages. See id. (awarding liquidated damages of 100% of unpaid wages where defendants defaulted); Agureyev, 2021 847977, at *8 (same).
f. Timely Payment Claim
De Jesus alleges that Defaulting Defendants violated NYLL § 191 by failing to pay him his wages on a regular weekly basis. (ECF No. 1 ¶ 93). NYLL § 191(1)(a) provides that “[a] manual worker shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned ....” NYLL § 198 permits employees to bring a wage claim to recover, among other forms of relief, “unless the employer [can] prove[] a good faith basis for believing that its underpayment of wages was in compliance with the law”, liquidated damages “equal to one hundred percent of the total amount the wages found to be due . . . or equal to “up to three hundred percent of the total amount of the wages found to be due for a willful violation of [NYLL § 194].” NYLL § 198(1-a). “New York courts are currently split on whether § 198(1-a) expressly provides a private right of action for a manual worker who is paid biweekly in violation of § 191(1)(a) to recover liquidated damages.” Sarmiento v. Flagge Contracting Inc., No. 22 Civ. 9718 (VSB) (JLC), 2024 WL 806137, at *9 (S.D.N.Y. Feb. 27, 2024) (comparing cases), adopted by, 2024 WL 1908607 (S.D.N.Y. May 1, 2024). The Court need not resolve this issue, however, because here, De Jesus does not mention the Timely Payment Claim in the Damages Submission, nor does he request different or additional damages with respect to this claim in the Damages Chart. (ECF Nos. 44; 45-7). He has therefore waived any damages with respect to this claim, and, in any event, he may only “recover under one statute for the same hours of unpaid wages; double recovery of the same wages and related damages is not permitted.” Sarmiento Perez v. Comhar Grp. LLC, No. 19 Civ. 964 (FB) (JO), 2020 WL 1364908, at *7 (E.D.N.Y. Mar. 6, 2020), adopted by, 2020 WL 1332200 (E.D.N.Y. Mar. 23, 2020) (awarding no damages for timely payment claim where court was otherwise awarding the full liquidated damages available for his unpaid minimum and overtime wages). Accordingly, we respectfully recommend that, while De Jesus has adequately alleged a Timely Payment Claim, no additional damages be awarded for it.
4. WTPA Claims
Under the WTPA, “employers are required to provide employees with a notice containing the rate and frequency of their pay at the time of hiring, NYLL § 195(1), and to furnish them with a written statement with each payment of wages, listing the dates covered by the payment, the regular rate of pay, the overtime rate, and the number of hours worked, NYLL § 195(3).” Juarez v. Manhattan Laundry Ctrs. Inc., No. 18 Civ. 2843 (VSB), 2023 WL 3614264, at *4 (S.D.N.Y. May 24, 2023).
De Jesus alleges that Defaulting Defendants failed to provide him with the required wage notice when he was hired and failed to provide him weekly wage statements. (ECF Nos. 1 ¶¶ 4951, 61-62, 87, 90; 45-6 ¶¶ 16-18). While De Jesus sufficiently pleads that Defaulting Defendants failed to comply with NYLL §§ 195(a)(1) and 195(3), he nevertheless lacks standing to maintain these claims. “Article III standing requires plaintiffs to show (1) an ‘injury in fact,' (2) a ‘causal connection' between that injury and the conduct at issue, and (3) a likelihood ‘that the injury will be redressed by a favorable decision.'” Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). To demonstrate an injury in fact, a plaintiff “must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent, not conjectural or hypothetical.” Id. (quoting Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)). For an “informational injury” resulting from the failure to receive required information to give rise to standing, see TransUnion LLC v. Ramirez, 594 U.S. 413, 442 (2021), a plaintiff must allege “downstream consequences” resulting from the failure to receive the information that demonstrate an interest in using the information “beyond bringing [the] lawsuit.” Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022).
Here, De Jesus does not allege any facts describing an “injury in fact sufficient to confer standing and [has] not demonstrated how [the] lack of notice resulted in an ‘injury greater than [the Defaulting] Defendants'” wage violations. Pinzon, 2023 WL 5337617, at *11 (quoting Gao v. Umi Sushi, No. 18 Civ. 6439 (ALC) (SN), 2023 WL 2118203, at *7 (S.D.N.Y. Jan. 31, 2023), adopted by, 2023 WL 2118080 (S.D.N.Y. Feb. 17, 2023)). Further, he has not identified an informational injury giving rise to consequences other than this lawsuit. Id. Following the decisions of other courts in this District, the Court therefore respectfully recommends that De Jesus's request for statutory damages under the WTPA be DENIED. Id.; accord Chen v. Hunan Manor Enter. Inc., No. 17 Civ. 802 (GBD) (GWG), 2023 WL 5574854, at *13 (S.D.N.Y. Aug. 29, 2023); Najera v. Lake Ave Pizza LLC, No. 21 Civ. 6753 (LGS) (SLC), 2023 WL 5752588, at *9-10 (S.D.N.Y. Aug. 3, 2023), adopted by, 2023 WL 5748117 (S.D.N.Y. Sept. 6, 2023); Reyes v. Coppola's Tuscan Grill, LLC, No. 21 Civ. 7040 (AT) (SN), 2023 WL 4303943, at *6 (S.D.N.Y. June 13, 2023), adopted by, 2023 WL 4304676 (S.D.N.Y. June 30, 2023); Belliard v. Tarnovsky, No. 20 Civ. 1055 (GBD) (KHP), 2023 WL 3004963, at *5-6 (S.D.N.Y. Mar. 6, 2023), adopted by, 2023 WL 3304723 (S.D.N.Y. May 8, 2023).
D. Damages
1. Evidentiary Basis
The Court must determine whether De Jesus has provided sufficient evidence to support his claimed damages. See Transatlantic Marine, 109 F.3d at 111; Victor, 2022 WL 3656312, at *12. In the Damages Submission, De Jesus includes his affidavit attesting to the dates and circumstances of employment and the Damages Chart. (ECF Nos. 45-6; 45-7). Despite warnings, Defaulting Defendants have not responded to the Court's Orders or the Damages Submission or provided any contrary evidence. The Court therefore finds that De Jesus has met his evidentiary burden of proving damages and that an in-person hearing is unnecessary because the Damages Submission, combined with Defaulting Defendants' admissions arising from their default, constitute a sufficient basis from which to evaluate the fairness of De Jesus's damages request. See, e.g., Fustok, 873 F.2d at 40; Victor, 2022 WL 3656312, at *12.
2. Straight Time Wages
As discussed above, Defaulting Defendants were required to pay De Jesus Straight Time Wages at New York's statutory minimum wage for the first 40 hours that he worked each week but paid him below that rate from July 2020 until November 2020. (See § III.C.3.c, supra). The Court has reviewed the Damages Chart and conducted independent calculations, and respectfully recommends that De Jesus be awarded Straight Time Wages in the amount below:
Time Period
Weeks in Period
Regular Hourly Pay Rate
Under-payment Per Hour
Underpaid Straight Time Hours
Straight Time Wages Awarded
7/1/2020 - 11/30/2020
22
$15.00
$2,642.64
NYLL § 652(1)(a)(ii).
$375.00 / 33, or $125.00 / 11.
Weeks in Period (22) * Hours Worked per Week (33).
$15.00 - $11.36.
3. Overtime Wages
The Court calculates appropriate overtime wages “by multiplying Plaintiffs' regular hourly rate (or the minimum wage rate, if their regularly 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 they worked each week.” Lopez v. MNAF Pizzeria, Inc., No. 18 Civ. 6033 (ALC), 2023 WL 6795811, at *4 (S.D.N.Y. Oct. 13, 2023). The damages to which De Jesus is entitled are equal to the appropriate overtime wages that Defaulting Defendants should have paid him.
De Jesus only worked overtime hours during the period from December 1, 2020 to January 14, 2021, a period of six weeks. (ECF Nos. 1 ¶ 41; 45-6 ¶ 10). He was paid $200.00 per day for six workdays per week, for a regular rate of pay of $18.18.(ECF Nos. 1 ¶46; 45-6 ¶13). He therefore should have been paid $ 27.27 per hour for each of the 26 hours of overtime in each of the six weeks in this period, but Defaulting Defendants paid him only his regular rate of pay for his overtime hours. (ECF Nos. 1 ¶ 46; 45-6 ¶ 13). The Court has done an independent calculation and respectfully recommends that De Jesus be awarded overtime wages as follows:
$1,200.00 / 66, or $200.00 / 11.
$18.18 * 1.5.
Time Period
Number of Weeks
OT Hours Per Week
OT Paid
Correct OT Pay
OT Underpayment Per Hour
Overtime Wages Awarded
12/1/2020 - 1/14/2021
6
26
0
$27.27
$27.27 - $18.18.
6 * 26 * $9.09.
4. Liquidated Damages
De Jesus requests liquidated damages. (ECF Nos. 1 at 17; 44 ¶¶ 34-38; 45 ¶¶ 44-46). Liquidated damages are calculated as “one hundred percent of the total amount of wages found to be due ....” NYLL § 198(1-a). For De Jesus, that is the sum of his unpaid Straight Time Wages ($2,642.64) and overtime wages ($1,418.04), or $4,060.68. The Court therefore respectfully recommends that De Jesus be awarded liquidated damages in the amount of $4,060.68.
5. Pre-judgment Interest
De Jesus requests pre-judgment interest on his compensatory damages under NYLL. (ECF Nos. 1 at 18; 44 ¶¶ 40-41; 45 ¶¶ 48-49; 45-7 at 2). Although pre-judgment interest is not awarded where FLSA liquidated damages are awarded, “prejudgment interest is still appropriate where a plaintiff is awarded liquidated damages under the NYLL.” Morales v. Mw Bronx, Inc., No. 15 Civ. 6296 (TPG), 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). “Prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages.” MNAF, 2023 WL 6795811, at *3.
Under New York law, pre-judgment interest is awarded at the rate of nine percent per year. N.Y. C.P.L.R. § 5004. For damages occurring “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.” N.Y. C.P.L.R. § 5001(b). “Simple prejudgment interest is calculated from a singular, midpoint date . . . [and] by multiplying the principal by the interest rate by the time period-from a singular, midpoint date-up until and including the date judgment is entered.” MNAF, 2023 WL 6795811, at *5. The midpoint of a plaintiff's employment is often used as the date from which to calculate pre-judgment interest in wage-and-hour cases. Id.
Defaulting Defendants employed De Jesus from July 1, 2020 to January 14, 2021, a total of 197 days. (ECF Nos. 1 ¶¶ 15, 40-41; 45-6 ¶¶ 6, 9-10). The midpoint of his employment was October 8, 2020, 99 days after July 1, 2020. Accordingly, we respectfully recommend an award of pre-judgment interest at nine percent per year calculated from October 8, 2020 through the date of judgment. See Ortega v. Matilda Gourmet Deli Inc., No. 21 Civ. 10212 (LGS), 2023 WL 1861279, at *1 (S.D.N.Y. Feb. 9, 2023).
6. Post-judgment Interest
De Jesus also seeks post-judgment interest. (ECF Nos. 1 at 18; 44 ¶ 42). 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(a). The Second Circuit has explained that an award of postjudgment 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 post-judgment interest, the Court respectfully recommends that De Jesus be awarded post-judgment interest in an amount consistent with 28 U.S.C. § 1961.
E. Attorneys' Fees
De Jesus requests attorneys' fees of $3,097.50. (ECF Nos. 44 ¶¶ 43, 45; 45 ¶¶ 52). The NYLL permits successful plaintiffs to recover reasonable attorneys' fees. NYLL §§ 198, 663. “Whether an attorneys' fee award is reasonable is within the discretion of the court.” Victor, 2022 WL 3656312, at *13. To determine a “presumptively reasonable fee,” the Court multiplies the hours counsel reasonably spent on the litigation by a reasonable hourly rate. Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011). “The presumptively reasonable fee boils down to what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively.” Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009).
1. Reasonable Hourly Rate
De Jesus was represented by attorneys Catalina Sojo (“Sojo”) and Mary Bianco (“Bianco”), and paralegals Felipe Gomez and Eunice Macario (together, the “Paralegals”), at the law firm of CSM Legal, P.C. (the “Firm”). (ECF No. 45-8). Sojo billed her time at $350.00 per hour, Bianco at $325.00 per hour, and the Paralegals at $125.00 per hour. (ECF No. 45-8 at 1).
To determine whether an hourly rate is reasonable, the Second Circuit has instructed district courts to “apply the prevailing rate within the district for similar services by lawyers of comparable experience and skill.” Victor, 2022 WL 3656312, at *14 (citing Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)). A court may also adjust the hourly rate to account for case-specific variables such as:
[i] the time and labor required; [ii] the novelty and difficulty of the questions; [iii] the skill requisite to perform the legal service properly; [iv] the preclusion of employment by the attorney due to acceptance of the case; [v] the customary fee; [vi] whether the fee is fixed or contingent; [vii] time limitations imposed by the client or the circumstances; [viii] the amount involved and the results obtained; [ix] the experience, reputation, and ability of the attorneys; [x] the “undesirability” of the case; [xi] the nature and length of the professional relationship with the client; and [xii] awards in similar cases.Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 173 (S.D.N.Y. 2018) (quoting Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983)).
In this district, courts generally award experienced wage-and-hour attorneys between $300.00 and $400.00 per hour. See Surdu v. Madison Glob., LLC, No. 15 Civ. 6567 (HBP), 2018 WL 1474379, at *10 (S.D.N.Y. Mar. 23, 2018) (collecting cases regarding litigators with one or more decades of experience); see also Pastor v. Alice Cleaners, Inc., No. 16 Civ. 7264 (JLC), 2017 WL 5625556, at *7-8 (S.D.N.Y. Nov. 21, 2017) (noting fees between $250.00 and $450.00 for experienced litigators in wage-and-hour cases in this district); but see Williams v. Epic Sec. Corp., 368 F.Supp.3d 651, 658-59 (S.D.N.Y. 2019) (awarding $600.00 per hour to lead attorney with 32 years of experience and $350.00 per hour to junior partner with 11 years of non-wage-and-hour experience).
Sojo has been practicing law for approximately five years. (ECF No. 45 ¶ 55(i)). Given this level of experience, other courts in this District have recently awarded Sojo an hourly rate of $225.00. See Pinzon, 2023 WL 5337617, at *14 (collecting cases). Accordingly, the Court awards Sojo an hourly rate of $225.00, which is consistent with her level of experience and the rates awarded in this District.
Bianco has been practicing law for approximately three years and has litigated wage-and-hour cases for approximately one year. (ECF No. 45 ¶ 55(ii)). Courts in this District “typically award rates in the range of $125-$215 to associates with three years of experience or less.” Rios v. Louya Corp., No. 14 Civ. 6800 (GHW), 2015 WL 5918194, at *4 (S.D.N.Y. Oct. 8, 2015). Based on her year of graduation from law school and shorter experience working on wage-and-hour cases, the Court awards Bianco an hourly rate of $150.00, which is consistent with her level of experience and rates awarded in this District. See Mahoney v. Amekk Corp., No. 14 Civ. 4131 (ENV) (VMS), 2016 WL 6585810, at *20 (E.D.N.Y. Sept. 30, 2016) (awarding $150.00 hourly rate to associate attorney admitted to the bar for two years), adopted by, 2016 WL 6601445 (E.D.N.Y. Nov. 7, 2016); Black v. Nunwood, Inc., No. 13 Civ. 7207 (GHW), 2015 WL 1958917, at *6 (S.D.N.Y. Apr. 30, 2015) (awarding $150.00 hourly rate to associate attorney with one year of experience in wage-and-hour cases); Jemine v. Dennis, 901 F.Supp.2d 365, 393 (E.D.N.Y. 2012) (reducing hourly rate to $150.00 for junior associate with less than one year of experience).
For paralegals, hourly rates of $100.00 to $150.00 are typical for awards in this District. See, e.g., Inga, 2021 WL 3624666, at *14 (collecting cases); accord Pinzon, 2023 WL 5337617, at *14 (approving paralegal rate of $125.00 in FLSA case). Accordingly, the Court finds that the requested hourly rate of $125.00 is reasonable, and respectfully recommends awarding fees for paralegal work at that rate.
2. Hours Reasonably Expended
Sojo expended 2.1 hours on this action, Bianco 5 hours, and the paralegals 5.9 hours. (ECF No. 45-8 at 1). To determine the reasonable number of hours required by a case, the critical inquiry is “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Courts must perform “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam). “If the Court finds that some of the claimed hours are ‘excessive, redundant or otherwise unnecessary,' it may reduce the number of reasonable hours accordingly.” Agureyev, 2021 WL 847977, at *11 (quoting Hensley, 461 U.S. at 434).
The Court has examined the Firm's contemporaneous billing records for this action, including the hours expended, dates of work, and brief descriptions of the work that Sojo, Bianco, and the Paralegals performed. (ECF No. 45-8). The Court finds that the hours they each expended were reasonable and not “excessive, redundant, or otherwise unnecessary.” Hensley, 461 U.S. at 434. Accordingly, we respectfully recommend that De Jesus be awarded attorneys' fees in the amount below:
Timekeeper
Requested Rate
Awarded Rate
Reasonable Hours
Fees Awarded
Sojo
$350.00
$225.00
2.1
$472.50
Bianco
$325.00
$150.00
5.0
$750.00
Paralegals
$125.00
$125.00
5.9
$737.50
TOTAL
$1,960.00
F. Costs
De Jesus requests costs in the amount of $542.00, consisting of the court filing fee ($402.00) and service fees ($140.00). (ECF Nos. 44 ¶ 45; 45 ¶ 53; 45-8 at 1). An employee who prevails in a wage-and-hour action is entitled to recover costs. See 29 U.S.C. § 216(b); NYLL § 663(1). Recoverable costs are “those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998).
De Jesus has submitted contemporaneous receipts for the service costs. (ECF No. 45-8 at 4-5). In addition, the Court may take judicial notice of the filing fee reflected on the docket as support for an award of that cost. (ECF No. 1). See Inga, 2021 WL 3624666, at *15 (collecting cases). Because De Jesus has adequately substantiated his request for costs, we respectfully recommend that he be awarded the full amount of costs requested, $542.00.
3. Additional Damages
De Jesus also requests that the judgment provide that “if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of the judgment [] automatically increase by fifteen percent (15%), as required by NYLL § 198(4).” (ECF No. 44 ¶ 48; see ECF No. 1 at 18). This request is in accordance with the NYLL, and we therefore respectfully recommend that the request be GRANTED. See Victor, 2022 WL 3656312, at *16.
IV.CONCLUSION
For the reasons set forth above, the Court respectfully recommends that judgment against Defaulting Defendants and in favor of De Jesus be entered as follows:
1. De Jesus be awarded:
a. Compensatory damages in the amount of $4,060.68, consisting of $2,642.64 in Straight Time Wages and $1,418.04 in overtime wages;
b. Liquidated damages in the amount of $4,060.68.
c. Pre-judgment interest on De Jesus's compensatory damages ($4,060.68), at a rate of nine percent per year from October 8, 2020 through the date of entry of judgment;
d. Post-judgment interest pursuant to 28 U.S.C. § 1961;
e. Attorneys' fees in the amount of $1,960.00; and
f. Costs in the amount of $542.00.
2. Pursuant to NYLL § 198(4), an automatic increase of judgment be applied to damages awarded under the NYLL that remain unpaid upon the expiration of 90 days following issuance of judgment, or 90 days after expiration of the time to appeal, and no appeal is then pending, whichever is later.
De Jesus shall serve a copy of this Report and Recommendation on Defaulting Defendants by Certified or Priority U.S. Mail and, by August 9, 2024, 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 Engelmayer.
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).