Opinion
17-CV-7995 (RA) (KHP)
11-18-2021
JAIRO ESPINOZA, individually and on behalf of others similarly situated, Plaintiff, v. BROADWAY PIZZA & RESTAURANT CORP. d/b/a BROADWAY PIZZA, LITTLE WEST INC. d/b/a BROADWAY PIZZA, DAFO CORP. d/b/a BROADWAY PIZZA, MOHAMMED ELHASSANI, ALI TIZINI A.K.A. ABDOUL TEZINI, and MOKHTAR C. CHANTIT, Defendants().
REPORT & RECOMMENDATION INQUEST ON DAMAGES
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE FROM: THE HONORABLE KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jairo Espinoza (“Plaintiff”) commenced this action on October 10, 2017, asserting claims against his restaurant employers for violations of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). (Second Amended Complaint (“SAC”) ECF No. 71.) Plaintiff was an employee at Defendants' restaurant and seeks unpaid minimum and overtime wages, spread of hours pay, liquidated damages, damages for failure to provide wage notice and wage statements, prejudgment interest, damages for costs of the tools of the trade, and attorneys' fees and costs. Id. After entry of default against Defendants, the Honorable George B. Daniels referred this action to me for a report and recommendation for an inquest on damages. Defendants did not file an opposition to the Plaintiff's Motion for a Default Judgment, nor did they appear at any point in the inquest proceedings. After review of the submissions, I respectfully recommend that Plaintiff be awarded damages as set forth in detail below.
Plaintiff seeks damages from three Defendant Restaurant/ Corporations: Defendant Broadway Pizza Corp. (d/b/a/ Broadway Pizza), Defendant Little West Inc. (d/b/a/ Broadway Pizza), and Defendant Dafo Corp. (d/b/a/ Broadway Pizza). Defendant also seeks damages from five individual Defendants: Mokhtar C. Chantit, Ali Tizini (a.k.a Abdoul Tezini), and Mohammed Elhassani. This case previously included Defendants: Rachid Bourass, Hakim Chantit and Hamo. Inc., but Plaintiff settled claims with them as referenced below.
Plaintiff sought other damages in their Second Amended Complaint, for example: damages for unlawful tip deductions and damages for untimely payments, but did not seek these damages in Plaintiff's inquest submissions nor did he provide any information for which to calculate damages for these claims. (ECF No. 165.)
Because Defendant has defaulted, Plaintiff's allegations in the Complaint, with the exception of those related to damages, are accepted as true, and all reasonable inferences are drawn in Plaintiff's favor. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
A. Factual Background
1. Plaintiff's Employment
Plaintiff worked in back of the house jobs (i.e., non-customer facing) at Broadway Pizzaand Jerusalem Restaurant. (SAC ¶¶ 1, 6, 47.) Defendants Mohammed Elhassani (“Elhassani”), Ali Tizini (“Tizini”), Rachid Bourass (“Bourass”), Hakim Chantit, Dafo Corp. (d/b/a Broadway Pizza), Little West Inc. (d/b/a Broadway Pizza), and Mokhtar C. Chantit possessed operational control, ownership interests and controlled functions of both restaurants which are located in New York City. (SAC ¶¶ 2, 3, 23-29, 34.)
Broadway Pizza & Restaurant Corp. is a corporation organized and existing under the laws of the State of New York that appears to be the umbrella organization that also includes Dafo Corp. and Little West Inc. (ECF No. 165, ¶ 23.)
Plaintiff submitted a sworn declaration in connection with his motion for a default judgment and damages. Specifically, Plaintiff attested that he was employed as a delivery worker but was also required to spend time performing non-tipped duties including cleaning, food preparation, and cooking. (SAC ¶ 6; Espinoza Decl. ¶¶ 8, 9.) Plaintiff performed these duties for both restaurants on an on-going basis from March 2012 until September 27, 2017. (SAC ¶¶ 46-47; Espinoza Decl. ¶ 7.) During that timeframe, Defendants were “owners, managers, principals, or agents of [both Restaurants]” and jointly employed Plaintiff. (SAC ¶¶ 3, 4, 35, 37.) Additionally, Defendants had authority to hire and fire employees and controlled the terms and conditions of Plaintiff's employment by determining his wages and method of compensation, establishing his schedule, and maintaining employee records. (SAC ¶¶ 25-29; Espinoza Decl. ¶ 5.) Each year, from 2012 to 2017, Defendants engaged in interstate commerce and, individually and jointly, had a gross annual volume of sales of not less than $500,000. (SAC ¶¶ 42-43.)
Plaintiff further attested that he regularly worked 6 days a week for a total of around 73.5 hours. (SAC ¶ 53; Espinoza Decl. ¶ 14.) Plaintiff worked over 10 hours a day every workday, but Defendants failed to compensate him for spread of hours pay. (SAC ¶ 9.) From March 2012 until in or about April 15, 2017, Defendants paid Plaintiff a fixed salary of $400 per week, regardless of whether Plaintiff worked longer hours. (SAC ¶ 55; Espinoza Decl. ¶ 16.) From April 16, 2017 until September 27, 2017, Defendants paid Plaintiff a fixed salary of $450 per week, regardless of whether Plaintiff worked longer hours. (SAC ¶ 56; Espinoza Decl. ¶ 17.)
Plaintiff alleges in his Declaration that his rate changed in “April 2017” but does not allege any specific dates. However, his damages chart provides that he was paid at a fixed salary of $400 per week until April 15, 2017 and then his rate changed to $450 per week on April 16, 2017. For purposes of conducting calculations, the Court will use April 15, 2017 as the last date Plaintiff received the lower rate. (Espinoza Decl. ¶¶ 16, 17.; See Damages Chart at ECF No. 165-8.)
In addition, Defendants did not provide Plaintiff with a wage notice at the time he was hired or wage statements at the end of each pay period. (Espinoza Decl. ¶¶ 23-25.) Plaintiff was also not required to keep track of the hours he worked. (Id. ¶ 22.)
In sum, Plaintiff attests that he regularly worked in excess of forty hours per week and more than ten hours in a day, and that the Defendant failed to pay him the proper amount in wages. (SAC ¶¶ 7-9; Espinoza Decl. ¶¶ 26-27.) Consequently, Plaintiff seeks unpaid minimum wages, overtime wage damages, spread of hours payments, liquidated damages, statutory damages, costs for purchasing tools of the trade, prejudgment interest, attorneys' fees and costs. The details of the work performed, and amounts claimed, are discussed below.
PROCEDURAL HISTORY
Plaintiff commenced this action on October 17, 2017. (ECF No. 1.) On April 10, 2018, only Defendant Rachid Bouras answered the Complaint. (ECF No. 42.) On June 20, 2018, Plaintiff filed a First Amended Complaint. (ECF No. 49.) On February 28, 2019, Plaintiff filed a Second Amended Complaint asserting the following causes of action: (1) violation of the minimum wage provisions of the FLSA; (2) violation of the overtime wage provisions of the FLSA; (3) violation of the minimum wage provisions of the NYLL; (4) violation of the overtime wage provisions of the NYLL; (5) violation of the spread of hours wage order of the NYLL; (6) a No. of violations of the NYLL including violation of the wage notice requirements, violation of wage statement requirements and unlawful deductions from tips; and (7) recovery of equipment costs under the FLSA and NYLL. (ECF No. 71.) Electronic summons were issued and affidavits of service were filed for all of the Defendants. (ECF Nos. 88-93.)
While Defendants collectively failed to respond to Plaintiff's damages request, Defendants' counsel participated in two mediation conferences on January 31, 2019 and September 30, 2020, before withdrawing as counsel. (ECF Nos. 118, 134.) However, following the mediation conference on September 30, 2020, Plaintiff accepted an offer of judgment, pursuant to Federal Rule of Civil Procedure 68, in the amount of $7,000 from Defendants Rachid Bourass, Hakim Chantit, and Hamo Inc. (ECF Nos. 129-31.) The following Defendants, who failed to respond or otherwise appear in this case still remained: Mohammed Elhassani, Ali Tizini, Mokhtar C. Chantit, Broadway Pizza and Restaurant, Dafo Corp., and Little West Inc. (ECF No. 132.)
At one point, all of the Defendants were represented by Andrew Sal Hoffman. According to defense counsel's representations in his motion to withdraw, counsel still represented Defendants at the mediation conferences despite several unsuccessful attempts to contact the Defendants. Since the Defendants first retained him in this matter, the Defendants were unresponsive to all of the attempts to communicate. (ECF No. 134.)
Plaintiff filed proposed certificates of default against the remaining Defendants. (ECF No. 136.) The Clerk of Court entered a certificate of default on January 4, 2021 for Defendants Broadway Pizza and Restaurant, Little West Inc., and Mokhtar C. Chantit; and on April 9, 2021, for Defendants Ali Tizini, Dafo Corp., and Mohammed Elhassani. (ECF Nos. 141-42, 144, 159, 162-63.) On April 12th and 13th, 2021, Plaintiff filed proposed default judgments and provided information on damages with supporting declarations. (ECF Nos. 166-68.) On April 19, 2021, the Honorable George B. Daniels affirmed judgment against the remaining Defendants and referred this action to the undersigned for an inquest on damages. (ECF No. 169.) On July 29, 2021, this Court held a telephonic inquest hearing. Despite being given notice of the hearing, the Defendants did not appear or file any submissions. The following recommendations are based on the facts asserted in the Second Amended Complaint as well as evidence presented in Plaintiffs' declaration and inquest submissions.
DISCUSSION
I. Default Judgment
Federal Rule of Civil Procedure (“Rule”) 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981) (defendant's ongoing failure to appear supported failure to plead for the purpose of entry of default). Rule 55 requires a two-step process for an entry of a default judgement. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). First, upon notification from the moving party, the court clerk enters a default of the party who failed to defend. Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir. 2011) (citing Fed.R.Civ.P. 55(a)). Second, once the clerk issues a certificate of default, the moving party may apply for entry of default judgment pursuant to Rule 55(b). Id. A default constitutes an admission of all well pleaded factual allegations in the complaint, and the allegations as they pertain to liability are deemed true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, plaintiffs are not entitled to a default judgment as a matter of right merely because the opposing party is in default. Samuels v. Lerthbridge, 1990 WL 121595, at *1 (S.D.N.Y. 1990). Plaintiffs bear the burden to demonstrate that the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law. In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000).
To determine whether a motion for default judgment is warranted, courts within this district consider three factors: (1) whether the defendant's default was willful; (2) whether the defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment).
Here, Plaintiffs have satisfied the two-step procedural requirements of Rule 55 by submitting a request for both entry of default and default judgment following the issuance of the clerk's certification. (See ECF Nos. 136, 166-68.) Additionally, all three of the foregoing factors weigh in Plaintiffs' favor. First, Defendants' failure to communicate with their counsel prior to withdrawal in November of 2020 and to answer Plaintiffs' Second Amended Complaint or Motion for a Default Judgment is indicative of willful conduct. See Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 60 (2d Cir. 1996) (Second Circuit courts look for evidence of bad faith or more than mere negligence to satisfy the willfulness standard). Second, Defendant cannot assert any meritorious defenses to Plaintiffs' claims because they failed to make an appearance. Antetokounmpo v. Searcy, 2021 WL 3233417, at *2 (S.D.N.Y. 2021) (court reasoned that a meritorious defense cannot be established where the defendant has not made an appearance and thus has not provided any information to the court). And third, Plaintiffs will be prejudiced if denied the ability to seek judgment by default because the Plaintiffs will have no alternative legal redress to recover the amounts due to them for the work performed during their employment.
Generally, a defendant's default is an admission of the plaintiff's well-pleaded allegations as to liability but not for purposes of determining damages. See Greyhound Exhibitgroup, 973 F.2d 155, 158 (2d Cir. 1992). Even when a defendant has defaulted, a substantive analysis of the alleged claims is required to determine whether the plaintiff may be awarded damages, and proof of damages is required. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974).
II. Unpaid Wages Under the FLSA and NYLL
The FLSA was enacted by Congress to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739, 101 S. C.t 1437, 67 L.Ed.2d 641 (1981) (quoting 29 U.S.C. § 202(a)). To establish a claim under the FLSA, a plaintiff must show: (1) that he or she was an “employee” of the Defendant, as defined by the statute; (2) that the Defendant was an employer engaged in commerce; and (3) that the employment relationship was not exempt from the FLSA. See Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d Cir. 2013) (plaintiff alleged facts about employment status and duties to satisfy FLSA claim).
Section 206 of the FLSA sets forth the minimum hourly wage that employers must pay their employees. Id.; 29 U.S.C. § 206(a)(1)(C). Section 207 specifies that an employer must pay employees who work more than forty hours during a workweek for the excess hours “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). There is a presumption that an employee is entitled to overtime; an employer bears the burden of proving that an employee is exempt from overtime. 29 USC § 207(a)(1); Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir. 2002) (recognizing that exempt status under the FLSA is an affirmative defense). Employers who violate the FLSA's minimum wage and overtime provisions are liable for the amount of unpaid wages and an additional equal amount as liquidated damages. 29 USC § 216(b).
New York's Labor law is the state analogue to the federal FLSA. Although the Labor Law “does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales, ” it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime. Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 (2d Cir. 2012). The New York Labor Law also expressly provides that employees are entitled to recover all unpaid wages and liquidated damages at a rate of 100 percent of the wages due. See N.Y. Lab. Law § 198(3); Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018).
New York's minimum wage was higher than the federal minimum wage for most of Plaintiff's employment. See 29 U.S.C. §§206(a)(1), 207(a)(1), Art. 19 NYLL Sec. 652. Hospitality Industry Minimum Wage Order, 13A N.Y. Prac, Employment Law in New York § 7:89 (2d ed.); see also Dept. of Lab. New York City Minimum Wage rates at https://dol.ny.gov/minimum-wage-0 (last visited Nov. 2, 2021). Only from March 1, 2012, until December 30, 2013 was the federal minimum wage ($7.25) higher than the New York State minimum wage ($7.15). See Id. Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
The federal minimum wage during Plaintiffs' employment was $7.25 per hour. 29 U.S.C. § 206(a)(1). The federal overtime rate is 1.5 x the employee's regular hourly rate. 29 U.S.C. § 207(a)(1). In New York City, the minimum wage for employees in restaurants with less than 11 employees (Plaintiff did not allege that Defendants employed more than 11 individuals) was $7.15 an hour until December 30, 2013; $8 per hour in 2014; $8.75 per hour from December 31, 2014 through December 30, 2015; $9.00 per hour from December 31, 2015 to December 30, 2016; $10.50 per hour from December 31, 2016 to the end of Plaintiff's employment. Art. 19 NYLL Sec. 652. The New York State overtime rate also is 1.5 times the regular rate. Hospitality Industry Wage Order 146-1.4.
Here, Plaintiff attested that Defendants were his employer and that he was employed by Defendants. (Espinoza Decl. ¶¶ 3-5). He asserted that Defendants hired him, supervised and controlled his work schedules, and determined the rate and method of compensation in exchange for Plaintiff's work. (Id.) Thus, Plaintiff has met the requirement of demonstrating that Defendants were his employers and that he was an employee. Rahman v. Red Chili Indian Café, Inc., 17-cv-5156, 2021 WL 2003111 (S.D.N.Y. May 19, 2021) (in default judgment context, finding allegations in complaint that restaurant and its owner had the power to hire and fire employees and set wages was sufficient to establish that both the entity and its owners were employers under the FLSA); see also 29 U.S.C. § 203(d, e); NY LL 190(2, 3).
Moreover, Plaintiff has alleged that Defendant restaurants are an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA, and that the restaurants' annual gross revenue was in excess of $500,000 as required by 29 U.S.C. § 203(s)(1)(A)(i)-(ii). See SAC ¶ 42. This is sufficient to demonstrate that the Defendants were engaged in commerce. Rahman, 2021 WL 2003111 (S.D.N.Y. May 19, 2021); Pelgrift, 2017 WL 4712482, at *7 (finding a complaint merely restating the statutory definition sufficient given reasonable inferences); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (S.D.N.Y. 2015) (same).
For example, Plaintiff alleges that he regularly handled goods in interstate commerce, such as meat and vegetables produced outside of the State of New York on a daily basis. (SAC ¶ 50.)
Finally, while the FLSA exempts certain employees from minimum wage and overtime wage protections, general laborers carrying out work such as dishwashing, food preparation, and food delivery service for a restaurant - like Plaintiff here - generally are not exempt. See, e.g., Mogollan v. La Abundancia Bakery & Restaurant Inc., 2019 WL 1512714, at *5 (S.D.N.Y. 2019) (certifying a class of cooks, food preparers, dishwashers, porters, bussers, food runners, counterpersons, cashiers, and waiters as non-exempt employees under the FLSA); Rojas v. Kalesmeno Corp., 2017 WL 3085340, at *8 (S.D.N.Y. July 9, 2017) (certifying a class of servers, delivery persons, porters, food preparers, dishwashers, cooks, and cashiers as non-exempt employees under the FLSA). And, given the presumption that an employee is entitled to overtime and Defendants' failure to appear and meet their burden that Plaintiff falls under a specific exemption, Plaintiff has satisfied his entitlement to unpaid wages, including overtime, under the FLSA.
Because the analysis under New York law is the same, Plaintiff also has satisfied his burden in demonstrating Defendants' exposure to liability under the New York Labor Law. Zheng v. Liberty Apparel Co., 355 F.3d 61, 78 (2d Cir. 2003) (finding New York Labor Law provisions to be analogous to the FLSA, such that the court's analysis of federal law would apply equally to claims brought under the FLSA and New York law).
Claims under the FLSA are subject to a two-year statute of limitations if the violation is not willful and a three-year statute of limitations if the violation is willful. See Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d 62, 70 (2d Cir. 2014) (citing 29 U.S.C. § 255(a)). Claims brought pursuant to the NYLL are subject to a six-year statute of limitations. See Byer v. Periodontal Health Specialists of Rochester, PLLC, 2021 WL 3276725, at *2 (2d Cir. 2021) (citing NYLL §§ 663(1), (3)). In this case, state law provides the more generous computation of damages and thus the state statute of limitations period is the relevant one, as Plaintiff was employed more than three years. See Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018); Hernandez v. Jrpac Inc., No. 14-cv-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016) (“Plaintiffs damages award under the NYLL necessarily will encompass their award under the FLSA. While the Court will formulate a separate damages award for each claim, as a matter of economic reality, for each plaintiff, the NYLL award will be decisive”).
Here, Plaintiff correctly applied the relevant statute of limitations period because the case was filed on October 10, 2017, and Plaintiff's calculation of damages begin on March 1, 2012, the start of Plaintiff's employment and a date less than 6 years prior to the filing of the case. See Pineda, 831 F.Supp.2d at 674 (citing NYLL § 663(1), (3)).
Plaintiff Espinoza was employed from approximately March 1, 2012, until September 27, 2017. During this time, Plaintiff regularly worked three days a week from 9:00 a.m. until 9:00 p.m., and three days a week from 9:00 a.m. until 9:30 p.m., for a total of 73.5 hours per week. (SAC ¶ 53; Espinoza Decl. ¶ 14). From March 1, 2012, until April 15, 2017, Defendants paid Plaintiff Espinoza $400 per week, and from April 16, 2017, until September 27, 2017, Defendants paid Plaintiff Espinoza $450 per week, regardless of hours worked. (SAC ¶¶ 55, 56; Espinoza Decl. ¶¶ 16, 17).
III. Damages
a. Minimum Wage Violation
Although Plaintiff broadly alleges that Defendants failed to pay him at the applicable hourly minimum rate, Plaintiff does not explicitly articulate any period of underpayment in his complaints or in his inquest documents. (SAC ¶¶ 100-102.) Plaintiff only refers to the periods of underpayments by means of his damage calculation chart. (See Damages Chart, ECF No. 165-8.) Therefore, the court has been forced to scrutinize Plaintiff's damages chart to discern the period(s) during which Defendants failed to pay Plaintiff at the statutorily required minimum wage rate. Based on the chart, Defendants violated the minimum wage provisions of the NYLL from December 31, 2016, through April 15, 2017. (ECF No. 165-8.) During this period, Plaintiff worked 6 days a week, earning $400 per week for working 73.5 hours. Where, as here, an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be “calculated by dividing the employee's total weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.” Shanfa Li v. Chinatown Take-Out Inc., 812 Fed.Appx. 49, 52 (2d Cir. 2020) (citing 12 N.Y.C.R.R. § 146-3.5(b)). If the employee's regular hourly rate falls below the minimum wage, he is entitled to recover in backpay the difference between what he actually was paid and what he should have been paid for his first forty hours of work each week under the prevailing minimum wage. Id.
While this Court does not take issue with the accuracy of the mathematical calculations contained in the Damages Chart, it does find a flaw in one assumption made by Plaintiff that underlies those calculations. Specifically, Plaintiff has implicitly assumed that the minimum-wage rates for “large employers” applies to Defendants, even though neither the Complaint(s), nor the Declarations filed in this case, allege that Defendants employed 11 or more people at any of their respective restaurants, such that the establishment would qualify as a “large employer.” N.Y. Lab. Law § 652(1)(a)(i). Given the lack of any support for Plaintiff's assumption, this Court will, where applicable, apply the minimum-wage rates for “small employers, ” as defined by N.Y. Lab. Law § 652(1)(a)(ii). See Reyes v. Lincoln Deli Grocery Corp., No. 17cv2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018) (applying lower, small-employer rate where “the Complaint [was] completely silent as to how many people [the defendant] employ[ed] [and] therefore there [was] no evidentiary basis for the Court to calculate damages based on the higher rate.) This use of the lower minimum-wage rate will modestly affect Plaintiff's proffered calculations, both in terms of whether Plaintiff is entitled to any unpaid minimum wage compensation, and the amount due to him for unpaid spread-of-hours pay.
Nevertheless, Plaintiff has stated a claim for minimum wage violation under state law for the period referred to in this subsection. The below chart shows the effective underpayment per week and in total.
Pay Period (number of weeks)
Regular Hours Worked per Week
Applicable Minimum Wage
Weekly Salary (work days)
Regular Hourly Rate Paid (Weekly Salary/ 40 Hours)
Legal Weekly Salary (Minimum Wage x 40 Hours)
Weekly Underpay (Legal Weekly Salary minus Weekly Salary)
Total Underpay (weekly underpay multiplied by the number of weeks)
12/31/2016- 4/15/2017 (23 weeks)
40
$10.50
$400.00 (6 days)
$10.00
$420.00
$20.00
Total Owed for Unpaid Regular Wages $460.00
The Court arrived at this number by multiplying the amount that Plaintiff was underpaid weekly ($20) by the number of weeks in the relevant period (23 weeks) which yields $460.00. To calculate the amount Plaintiff was underpaid weekly, the Court determined the regular rate by dividing Plaintiff's weekly salary by 40 hours (as required by the NYLL and the FLSA when the employer does not provide a regular hourly rate) to get a value of $10.00 an hour, which was $0.50 below the minimum wage. The Court then multiplied the correct minimum wage value ($10.50) by 40 hours (as required by the NYLL and FLSA) to get the amount that Plaintiff should have received per week during the relevant period: $420. $420 - $400 equals the $20 weekly underpayment.
Accordingly, I recommend that Plaintiff receives $460.00 in unpaid minimum wages.
b. Unpaid Overtime Wages
Plaintiff worked over 40 hours every week of his employment with Defendant but never received overtime wages. (ECF No. 165-6, Espinoza Decl. ¶¶ 26, 27.) The NYLL requires employers to compensate their employees at one and one-half times their regular hourly rate for every hour worked over forty hours per week. See 29 U.S.C. § 207(a)(1); 12 N.Y. Comp. Codes R. & Regs. § 142-2.2; Shanfa Li v. Chinatown Take-Out Inc., 812 Fed.Appx. 49, 52 (2d Cir. 2020) (overtime calculation under the FLSA and NYLL). As discussed above, when an employer has defaulted and offers no rebuttal, the Court calculates the employee's regular hourly rate by dividing his weekly salary by forty hours. Rosendo v. Everbrighten Inc., 2015 WL 1600057 *3 (S.D.N.Y. 2015). However, if a Plaintiff's regular hourly rate fell below the minimum wage, that Plaintiff is entitled to overtime damages equal to one and one-half times the minimum wage rate. Id. at 4.
On the assumption that an employee's weekly salary is intended to cover only forty hours per week, any time worked in excess of forty hours represents uncompensated overtime for which the employee is owed backpay. Id. The below chart computes the amount of overtime wages due to Plaintiff.
Pay Period (number of weeks)
Overtime Hours Worked Per Week
Minimum Wage Rate
Regular Rate
Overtime Rate (Regular Rate x 1.5)
Weekly Underpay
3/1/2012-12/30/2013(96 weeks)
33.5
$10.00
$15.00
$502.50
$48,240.00
12/31/2013-12/30/2014 (52 weeks)
33.5
$8.00
$10.00
$15.00
$502.50
$26,130.00
12/31/2014-12/30/2015 (52 weeks)
33.5
$8.75
$10.00
$15.00
$502.50
$26,130.00
12/31/2015-12/30/2016 (52 weeks)
33.5
$9.00
$10.00
$15.00
$502.50
$26,130.00
12/31/2016-4/15/2017 (15 weeks)
33.5
$10.00
$15.75
$527.625
$7,914.38
4/16/2017-9/27/2017
33.5
$10.50
$16.875
$565.313
$13,002.20
(23 weeks)
Total Owed for Unpaid Overtime Wages
$ 147, 546.58
The Court arrived at this number by multiplying the regular rate (calculated by dividing the weekly salary by 40 hours, as required under the NYLL and FLSA) by 1.5 to get the overtime rate, then multiplying the overtime rate by the number of overtime hours worked per week to get the weekly underpay. Then, the Court multiplied the weekly underpay by the number of weeks in the period to arrive at the total underpay. In the period(s) in which the minimum wage rate was higher than the regular rate, the Court used the minimum wage rate as the “regular rate” for purposes of the overtime rate calculation.
Plaintiff is entitled to the more generous federal minimum wage rate here ($7.25.) versus the New York City minimum wage rate ($7.15). Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods and here, this is the only period where the federal minimum wage rate was higher than the New York City wage rate. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
As referred to in the subsection concerning Defendants minimum wage violations, because Plaintiff has not provided any information regarding the size of his employer(s), the Court will apply the “small employer” minimum wage rate articulated in N.Y. Lab. Law § 652(1)(a)(ii). See Reyes v. Lincoln Deli Grocery Corp., No. 17cv2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018).
See Footnote 5, where Plaintiff's weekly rate increased from $400 to $450 on April 16, 2017.
Accordingly, I recommend that Plaintiff receive $147,546.58 in unpaid overtime wages.
c. Spread of Hours Pay Under New York's Labor Law
Plaintiff also seeks damages for non-payment of so-called “spread of hours” pay. Under New York law, certain employees who work more than ten hours in a day can recover an extra hour's worth of pay at the state minimum wage rate for each such day. N.Y. Comp. Codes R. & Regs. Tit. 12, § 142-2.4. Section 663 of the Labor Law expressly authorizes an employee to sue his or her employer to recover unpaid wages otherwise due to him or her under the statute. N.Y. Lab. Law § 663(1).
Plaintiff attests that he worked more than ten hours a day for at least 6 days a week during their employment with the Defendants and did not receive spread of hours wages. (Espinoza Decl. ¶¶ 14, 18; SAC ¶¶ 111-112.) Thus, Plaintiff has established that he is entitled to spread of hours pay for these days (within the 6-year statute of limitations period). Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19 (E.D.N.Y. 2015) (Restaurant employees were entitled to recover spread-of-hours pay pursuant to NYLL, where employees at times worked in excess of ten hours in per day, and employer failed to pay them NYLL minimum wage.); 12 N.Y.C.R.R. § 142-2.4. Because the relevant minimum wage changed during the period when Plaintiff worked more than ten-hour days, the Court sets out the spread of hours pay due for each period in the chart below.
Specifically, Plaintiff noted that from March 1, 2012, until September 27, 2015, he worked 6 days a week: 3 days for 12 hours, and 3 days for 12.5 hours. (ECF No. 165-5, Espinoza Decl. ¶ 14.) Because spread of hours only applies to days in excess of 10 hours, Plaintiff would be entitled to spread of hours payments for all 6 days that he worked for each week. See Inclan v. New York Hospitality Group, Inc., 95 F.Supp.3d 490, 502 (S.D.N.Y. 2015) (citing 12 N.Y.C.R.R. § 146-1.6(a)) (employees must work an excess of ten hours in one day to qualify as spread of hours violation under NYLL.) The spread of hour computations are provided below:
Pay Period (number of weeks)
Applicable New York Minimum Wage
Days With Spread of Hours During Time Period
Weekly Underpay (Days x Minimum Wage)
3/1/2012-12/30/2013(96 weeks)
$7.25
6 days
$43.50
$4,176.00
12/31/2013-12/30/2014 (52 weeks)
$8.00
6 days
$48.00
$2,496.00
12/31/2014-12/30/2015(52 weeks)
$8.75
6 days
$52.50
$2,730.00
12/31/2015-12/30/2016 (52 weeks)
$9.00
6 days
$54.00
$2,808.00
12/31/2016-4/15/2017 (15 weeks)
$10.50
6 days
$63.00
$945.00
4/16/2017-9/27/2017 (23 weeks)
$10.50
6 days
$63.00
$1,449.00
Total Owed for Unpaid Spread of Hours Wages
$14,604.00
The Court arrived at this number by multiplying the applicable New York minimum wage rate by the number of days per week that Plaintiff worked over 10 hours to find the weekly underpay for spread of hours wages, then multiplying that weekly underpay value by the number of weeks in the period. Again, the Court utilized the rates for small employers because Plaintiff did not allege or attest that the restaurant had sufficient employees to fall under the large employer category.
Accordingly, I recommend that Plaintiff be awarded $14,604.00 for the violation of NYLL's spread of hours provision.
d. Liquidated Damages
Plaintiff also seeks liquidated damages under New York's Labor Law, that provides an amount equal to that of the unpaid wages. (ECF No. 165, ¶¶ 43-45.) Under the NYLL, “liquidated damages are presumed unless Defendant can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012); see N.Y. Lab. Law § 663(1). As Defendants have defaulted, they have not established good faith to rebut the liquidated damages presumption and therefore Defendant's violation is deemed to be willful.
Based on the total amounts due to Plaintiff based on the above charts, I calculate the total unpaid wages (comprising unpaid minimum wage, overtime, and spread of hours) to be the following:
Unpaid Minimum Wage
Unpaid Overtime
Spread-of-Hours
Total Amount of Unpaid Wages
Plaintiff Espinoza
$460.00
$147,546.58
$ 1 4, 604.00
$162,610.58
Thus, I recommend liquidated damages be awarded to Plaintiff in the amount of $162,610.58.
e. Compensation for Purchasing Tools of the Trade
An employer violates both the FLSA and NYLL if it requires its employees to purchase “tools of the trade” that are used or required to perform the employer's work and the cost of such tools reduces the minimum or overtime wages owed to the employee. See Feng Chen v. sPatel, 2019 WL 2763836 (S.D.N.Y. July 2, 2019) (quoting NYCRR § 146-2.7(c)); Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 476 (S.D.N.Y. 2015) (quoting 29 C.F.R. § 531.35).
Plaintiff alleges that Defendants required him to purchase “tools of the trade, ” notably referencing a lock for the restaurant's basement, and approximates that he spent $40.00 on this lock. (SAC ¶ 64; Espinoza Decl. ¶ 21.) This Court must accept Plaintiff's factual allegations as true even though Plaintiff's bare explanation for how the item for which he seeks reimbursement was necessary for him to perform his job. For example, it is not clear to this Court why Plaintiff-who was employed as a delivery worker, dishwasher, and food preparer- would have been required to purchase a lock and how the use of a lock was related to the performance of his job. Instead of substantiating this claim, Plaintiff merely states in conclusory form that he was required to purchase “tools of the trade” and therefore he must be reimbursed. (SAC ¶ 64.) Salinas, 123 F.Supp.3d at 476 (awarding damages for tools of the trade where bussers and runners working at defendant restaurant were required to purchase crumbers). Nevertheless, given Defendants' default, I recommend that the Plaintiff be awarded $40.00 for purchasing tools of the trade.
f. Statutory Damages
Plaintiff also seeks statutory damages for Defendants' failure to provide wage notices and wage statements in compliance with New York's Wage Theft Prevention Act (“WTPA”), and NYLL §§ 195(1) and (3), which require employers to “provide [their] employees, in writing . . . a notice containing . . . the rate or rates of pay thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other allowances.” N.Y. Lab. Law. §§ 195(1) and (3). NYLL § 198 sets the amount of statutory damages an employee may recovery for violations of NYLL § 195.
Regarding wage notices, in 2011, the WTPA required employers to provide written wage notices “at the time of hiring, and on or before February first of each subsequent year of the employee's employment with the employer.” N.Y. Lab. Law § 195(1-a) (eff. Apr. 9, 2011, to Feb. 27, 2015). Failure of the employer to follow this resulted in a $50 per week payment to the employee with a maximum recovery of $2,500 per employee. Subsequently, the WTPA was amended, effective February 27, 2015, to provide that employers were only required to provide written wage notices “at the time of hiring” and/or within ten days of their hire date. 2014 N.Y. Laws ch. 537 § 1, amending N.Y. Lab. Law § 195(1-a). Failure to follow this results in a $50 per day payment to the employee with a maximum recovery of $5,000.00 per employee. NYLL § 198(1-b).
Plaintiff attests that he never received a written wage notice at the time of hiring or any time thereafter. (ECF No. 165-6; Espinoza Decl. ¶¶ 23-25.) Because Defendant is in default, this Court accepts Plaintiff's allegation that Defendant failed to provide him with the required notices. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-cv-10234 (JGK) (JLC), 2016 WL 4704917, at *14 (S.D.N.Y. Sept. 8, 2016) (awarding plaintiff statutory damages under NYLL §§ 195(1) and (3) where Defendant defaulted), adopted sub nom. by Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-cv-10234 (JGK), 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). Plaintiff began his employment prior to the 2015 amendment, which required employers to provide wage notices at the time of hiring and on or before February of each subsequent year of employment. According to the 2011 WTPA, this would entitle him to the maximum recovery of $2,500 per employee. N.Y. Lab. Law § 195(1-a) (eff. Apr. 9, 2011 to Feb. 27, 2015). However, at least one court in this District has permitted a plaintiff to recover the cap established by the 2015 amendment when the plaintiff's wage rate changed after the amendment. Cuzco v. F & J Steaks 37th Street LLC, No. 13-CV-1859, 2014 WL 2210615, at *4 (S.D.N.Y. May 28, 2014). Because Plaintiff had a wage increase that changed after the February 27, 2015 amendment, for which he should have received a notice, Plaintiff should be entitled to the recovery under the 2015 Amendment, which would entitle him to the maximum rate of $5,000.00. (Espinoza Decl. ¶¶ 16-17.)
Regarding wage statements, the WTPA formerly entitled employees to recover statutory damages for violations of the wage statement requirement of $100 per work week, not to exceed $2,500. Baltierra v. Advantage Pest Control Co., No. 14 CV 5917, 2015 WL 5474093, at *10 (S.D.N.Y. Sept. 18, 2015) (citation omitted); accord Inclan, 95 F.Supp.3d at 501; see also 232010 N.Y. Laws ch. 564 § 7, amending N.Y. Lab. Law § 198(1-d). By amendment, effective February 27, 2015, the law changed to allow employees to recover statutory damages of $250 dollars “for each workday that the violations occurred or continue to occur, ” not to exceed $5,000. 2014 N.Y. Laws ch. 537 § 2, amending N.Y. Lab. Law § 198(1-d); see also Zhang v. Red Mtn. Noodle House Inc., No. 15 CV 628, 2016 WL 4124304, at *6 (E.D.N.Y. July 5, 2016), report and recommendation adopted, 2016 WL 4099090 (E.D.N.Y. Aug. 2, 2016).
Plaintiff asserted that he never received wage statements with his pay. (SAC ¶¶ 118-119; Espinoza Decl. ¶¶ 24-25). The applicable law provides for $250 dollars in damages for each workday, totaling no more than $5,000. See N.Y. Lab. Law § 198(1-d). Defendants failed to comply with § 195(3) throughout the period of Plaintiff's employment and for days beyond when the statutory cap was reached. Thus, Plaintiff is entitled to the $5,000 statutory maximum in damages.
Accordingly, I respectfully recommend that Plaintiff Espinoza be awarded statutory damages in the amount of $10,000 for Defendants' failure to provide Plaintiff with proper wage notices and statements.
g. Prejudgment Interest
Plaintiff also requests and is entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; see Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 265 (2d Cir. 1999) (finding that the NYLL permits an award of both liquidated damages and prejudgment interest); see also Pineda v. Tokana Cafe Bar Restorant Inc., 2017 WL 1194242, at *4 (S.D.N.Y. 2017) (“Prejudgment interest may be awarded in addition to liquidated damages under NYLL but not under the FLSA.”) A NYLL plaintiff may recover prejudgment interest only on his or her actual damages under the NYLL, not on his or her liquidated damages under the state law. Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 515 (S.D.N.Y. 2017).
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Gamero, 272 F.Supp.3d at 515.
To calculate prejudgment interest, the Court must multiple the total amount of Plaintiff's compensatory damages (for unpaid regular wages, overtime wages, and spread of hours wages) by an interest rate of 9 percent which will yield the amount of prejudgment interest per year. Plaintiff began his employment on March 1, 2012, the earliest date on which his NYLL statute of limitations period began, and his employment ended on September 27, 2017. The approximate midpoint date between those two limits for calculating prejudgment interest is therefore December 13, 2014. Accordingly, Plaintiff should receive prejudgment interest on a principal of his entire compensatory damages at an interest rate of nine percent per year as applied from December 13, 2014, to the date of entry of judgment.
IV. Attorneys' Fees
The FLSA and NYLL both provide for an award of reasonable attorneys' fees to successful plaintiffs. See 29 U.S.C. § 216(b); NYLL §§ 198(1-a), 663(1). Plaintiff was represented by Michael Faillace & Associates, now called CSM Legal P.C., and the work was performed by attorneys Michael Faillace, Colin Mulholland, Yolanda Rivero, Jordan Gottheim, and Catalina Sojo. (Faillace Decl. ¶ 56.) Plaintiffs seek an attorneys' fee award of $13,837.50 for 43.90 hours' worth of work. (ECF No. 165-7; “Attorney's Bill.”)
Pursuant to a motion to withdraw by managing partner, Michael Faillace, the firm is under new ownership and has been renamed CSM Legal P.C. (ECF No. 175.)
Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay, ” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. “Courts in this District have determined in recent cases that a fee in the range of $250 to $450 is appropriate for experienced litigators in wage-and-hour cases.” See Lopez v. Emerald Staffing, Inc., No. 18 CIV. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour”).
In assessing whether the number of hours billed by the attorney is reasonable, courts consider “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) (citation omitted). Plaintiff bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of N.Y., 626 F.3d 130, 133-34 (2d Cir. 2010) (citation omitted); see also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020).
District courts exercise “considerable discretion” in awarding attorneys' fees. See D.B. ex rel. S.B. v. New York City Dep't of Educ., 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (internal quotation marks and citation omitted), adopted by 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); McDaniel v. County. of Schenectady, 595 F.3d 411 (2d Cir. 2010); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). However, when awarding attorneys' fees, the court must also “clearly and concisely state reasons supporting the award.” Tackie v. Keff Enters. LLC, No. 14-CV-2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014) (first citing Hensley, 461 U.S. at 437; then citing Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014)) (awarding attorneys' fees under FLSA and NYLL).
a. Reasonable Hourly Rate
Courts in this district have determined that a fee ranging from $250 to $450 is appropriate for experienced litigators in wage and hour cases. See, e.g., Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *20 (S.D.N.Y. Sept. 8, 2016) (finding a range of $250 to $450 per hour reasonable; collecting cases); Lopez v. Emerald Staffing, Inc., No. 18 CIV. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour”); See Trinidad v. Pret a Manger (USA) Ltd., No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases).
Michael Faillace is the founder of Michael Faillace & Associates and has been practicing employment law since 1983. (Faillace Decl. ¶ 56). He seeks a rate of $450 per hour. (Id.) This rate is at the upper limit of what courts in this District have deemed reasonable for experienced litigators in wage-and-hour cases. See, e.g., Lopez, 2020 WL 915821, at *13; Xochimitl, 2016 WL 4704917, at *20. Additionally, in recent cases in which courts have been asked to determine a reasonable hourly rate for attorney Michael Faillace, the rates awarded have been below his requested “regular” hourly rate. See Marquez v. Erenler, Inc., No. 12-cv- 8580-GHW, 2014 WL 5847441, at *2-3 (S.D.N.Y. Nov. 10, 2014) (awarding Mr. Faillace $400 per hour); Cisneros v. Schnipper Rest., LLC, No. 13 Civ. 6266(JMF), 2014 WL 67235, at *2 (S.D.N.Y. Jan. 8, 2014) (reducing rates for Mr. Faillace by imposing a twenty-five percent across-the-board reduction); Rosendo v. Everbrighten Inc., No. 13CV7256-JGK-FM, 2015 WL 1600057, at *8 (S.D.N.Y. Apr. 7, 2015), report and recommendation adopted, No. 13 CV. 7256 JGK, 2015 WL 4557147 (S.D.N.Y. July 28, 2015) (awarding Mr. Faillace $400 per hour.) In light of these similar awards and in light of the errors in Plaintiff's submissions, the Court finds that the reasonable hourly rate for Mr. Faillace should be $400.00.
Pursuant to a motion to withdraw as attorney filed on November 5, 2021, Mr. Faillace has been suspended from practice by the Southern District of New York. (ECF No. 175.)
Additionally, there were four other attorneys who performed work on this case. Colin Mulholland is an associate at the firm and has been practicing employment law in New York State since 2012 and seeks a rate of $350 per hour. (ECF No. 165 ¶ 56.) Yolanda Rivero is an associate at the firm and has been practicing employment law in New York State since 2008 and seeks a rate of $350 per hour. (Id.) Jordan Gottheim and Catalina Sojo are more recent law school graduates (2016 and 2019, respectively) and both seek a rate of $350 per hour. (Id.)
Mr. Mulholland and Ms. Rivero's rates are in the range awarded to similarly experienced employment law attorneys in this district. Accordingly, I recommend that their rates should be awarded. Lopez v. Emerald Staffing, Inc., No. 18 CIV. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour”); See Trinidad v. Pret a Manger (USA) Ltd., No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for experienced attorneys in FLSA cases).
However, Jordan Gottheim and Catalina Sojo's rates are high in relation to their experience level and what has been deemed reasonable for associates in this district. In this district, a rate of $300 per hour is usually appropriate for senior associates with at least eight years of experience. See Apolinario v. Luis Angie Deli Grocery Inc., No. 14cv2328 (GHW), 2015 WL 4522984, at *3 (S.D.N.Y. July 27, 2015) (finding that a rate of $300 per hour would be appropriate for senior associates with at least eight years of experience); Tacuri v. Nithin Constr. Co., No. 14-CV-2908, 2015 WL 790060, at *13 (E.D.N.Y. Feb. 24, 2015) (finding that a rate of $300 per hour is a reasonable hourly rate for a senior associate). However, here, both of these attorneys have roughly 5 years of experience. See, e.g., Singh v. Meadow Hill Mobile Inc., 20-cv-3853, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021) (recognizing that rates for associates in FLSA cases in excess of $225 per hour are reserved for litigators with more than three years' experience). Accordingly, I recommend that Gottheim and Sojo be awarded a rate of $225 per hour, which is more consistent with their level of experience and rates awarded in this District.
In addition to the above named attorneys, Plaintiff's billing records reference two other unnamed individuals who are only referred to by their initials. (ECF No. 165-7, See Billing Records). These initialed individuals are “GN” and “PL, ” but Plaintiff has failed to indicate whether the individuals are attorneys; what these individuals' billing rates are; what experience level they provide; and what award they are seeking. Accordingly, I do not recommend awarding them attorney's fees.
b. Reasonable Hours Expended
The timesheets submitted to the Court indicate that a total amount 43.90 hours was expended working on the case. (ECF No. 165-7.) The billing records provide that Michael Faillace spent the largest amount of time on the case - 11 hours. (Id.) Additionally, Colin Mulholland spent 8 hours on the case and Yolanda Rivero spent 1 hour on the case, both at a rate of $350 per hour. (Id.) Lastly, Jordan Gottheim spent 3.9 hours, Catalina Sojo spent 7.3 hours. (Id.) Regarding the initialed individuals, “GN” spent 1.1 hours working on the case and “PL” spent 11.6 hours working on the case. As mentioned in the previous subsection, neither initialed individuals had a specified billing rate and I do not recommend reimbursement of fees for their time.
When assessing whether the hours worked were reasonable, courts consider whether “‘at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Williams, 2018 WL 3370678, at *2 (quoting Samms v. Abrams, 198 F.Supp.3d 311, 322 (S.D.N.Y. 2016)); see also Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). “Hours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, the court has discretion simply to deduct a reasonable percentage of the number of hours claimed as a practical means of trimming fat from a fee application.” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted); see also Williams, 2018 WL 3370678, at *2. Courts also consider the nature of the legal matter, reason for the fee award, whether the case involved complex issues “requiring particular attorney skills and experience, [which] may command higher attorney rates, ” and whether the case “require[ed] retention of a firm with the resources needed to prosecute a case effectively.” Williams, 2018 WL 3370678, at *3 (citing Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 185-87).
Plaintiff provided contemporaneous billing records which detail the hours expended and dates and descriptions of the tasks performed. (ECF No. 165-7.) Plaintiff seeks reimbursement of the total 43.90 hours of work on this case. However, as provided above, two individuals were not accounted for in their inquest paperwork (“GN” and “PL”), and, as a result, their hours should not be included in any award of fees. The hours spent by the other attorneys are reasonable given the tasks performed.
Based on the above, I recommend that $10,070.00 in attorney's fees be awarded.
The Court arrived at this amount by multiplying each attorney's billing rate, as adjusted by the Court, by the hours that attorney spent working on this matter, then adding all of those values together. For Michael Faillace, $400 multiplied by 11 hours equals $4,400.00. For Colin Mulholland, $350 multiplied by 8 hours equals $2,800.00. For Yolanda Rivero, $350 multiplied by 1 hour equals $350. Regarding the two associates, $225 multiplied by 3.9 hours equals $877.50 (for Jordan Gottheim) and $225 multiplied by 7.3 hours equals $1,642.50 (for Catalina Sojo). After adding these 5 values together, the Court arrived at the above value of $10,070.00 in attorneys' fees.
c. Costs
Both the FLSA and NYLL entitle prevailing plaintiffs in wage-and-hour actions to recover costs. 29 U.S.C. § 216(b); NYLL §663(1). “An award of costs ‘normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged to fee-paying clients.'” Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)); see also Perez Garcia, 2020 WL 1130765 at *13.
Here, Plaintiff seeks to recover $917.60 in costs, including a filing fee of $400, and numerous process server fees, which is understandable given the amount of Defendants in this case. These expenses are typically reimbursed under the FLSA's and NYLL's costs provisions. See Xochimitl, 2016 WL 4704917 at *22 (awarding costs for filing and process server costs). Plaintiff provided an accounting of disbursements associated with these costs, including the dates service was attempted on the Defendants. (ECF No. 165-7, See Billing Records.) Accordingly, I recommend awarding Plaintiffs costs in the amount of $917.60 for the filing fee and to effect service.
V. Additional Damages if Judgment is Not Satisfied
Finally, Plaintiff 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 judgment shall automatically increase by fifteen percent, as required by NYLL § 198(4). (SAC Prayer for Relief (t).) This request is in accordance with the provisions of the New York Labor Law, and therefore I recommend that it be granted. See N.Y. Lab. Law § 198(4); see also Galicia v. 63-68 Diner Corp., No. 13cv03689 (PKC), 2015 WL 1469279, at *8 (E.D.N.Y. Mar. 30, 2015); Elisama v. Ghzali Gourmet Deli Inc., No. 14CV8333 (PGG) (DF), 2016 WL 11523365, at *19 (S.D.N.Y. Nov. 7, 2016), report and recommendation adopted, No. 14CIV8333PGGDF, 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018).
VI. Post-Judgment Interest
Lastly, Plaintiff also requests an award of post-judgment interest. 28 U.S.C. § 1961 provides that an award of post-judgment interest is mandatory in any civil case where money damages are recovered. Duffy v. Oyster Bay Indus., Inc., No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report & recommendation adopted, No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259749 (E.D.N.Y. June 2, 2011); see generally Begum v. Ariba Disc., Inc., No. 12 Civ. 6620(DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case). Therefore, I respectfully recommend that Plaintiff also be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Id.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff Espinoza be awarded the following amounts, which is comprised of unpaid regular wages, overtime wages, spread of hours wages, liquidated damages, and statutory damages. I also recommend that Plaintiff receive an award of prejudgment interest on his wages and on spread-of hours wages determined from the date of entry of judgment. Further, I recommend an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. I further recommend, as set forth above, that the judgment provide that, if any amounts 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, the total amount of judgment shall increase by 15 percent, as required by NYLL § 198(4). Finally, I recommend awarding Plaintiffs attorneys' fees in the amount of $10,070.00 and the requested amount of costs totaling $917.60. Plaintiffs are directed to serve a copy of this Report and Recommendation on Defendant and file proof of service of the same on the docket by no later than December 2, 2021.
Plaintiff Espinoza
Regular Wages
$460.00
Overtime Wages
$147,546.58
Spread-of-Hours Pay
$14,604.00
Liquidated Damages
$162,610.58
Tools of the Trade Damages
$40.00
Statutory Damages - Wage Notices
$5,000
Statutory Damages -Wage Statements
$5,000
TOTALS:
$335,261.16
NOTICE
The Defendant shall have fourteen days from the 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 (i.e., until February 5, 2017). See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). Plaintiff shall have fourteen days from the 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 (i.e., until February 2, 2017).
If the Defendant files written objections to this Report and Recommendation, the Plaintiff may respond to the Petitioner's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Alternatively, if Plaintiff files written objections, the Defendant may respond to such objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2); see also Fed. R. Civ. P. 6(a), (d). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).