Opinion
17-CV-6853 (LGS) (KNF)
09-03-2019
MARTYR JEAN-BAPTISTE MEDA, Plaintiff, v. DER KOGDA, MARIE CLAIRE SOMDA-KOGDA, CLARISSE KOGDA, Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
Plaintiff Martyr Jean Baptiste Meda ("Meda") commenced this action against Der Kogda ("Kogda"), Marie-Claire Somda-Kogda ("Somda-Kogda"), and Clarisse Kogda to recover damages, costs and attorney's fees pursuant to the Trafficking Victims Protection Reauthorization Act ("TVPRA"), 18 U.S.C. §§ 1589, et seq., and the New York State Labor Law ("NYLL") §§ 190 et seq. Your Honor directed the Clerk of Court to enter a default judgment against the defendants, pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. Thereafter, your Honor referred this action to the undersigned for an inquest on damages.
In connection with the inquest, the plaintiff submitted proposed findings of fact and conclusions of law, a memorandum of law, and the declaration of his counsel, Reena Arora ("Arora"). Based on the plaintiff's complaint and inquest submissions, the following are the Court's findings of fact and conclusions of law.
FINDINGS OF FACT
From approximately December 3, 2013, to June 1, 2014, Meda was employed as a personal chef and domestic worker by the defendants at their New York City residence. At the time Meda met the defendants, he was working as a chef at the Hotel Independence in Quagadougou, Burkina Faso. Kogda was then serving as the Ambassador of the Permanent Mission of Burkina Faso to the United Nations. Kogda offered Meda a job as a personal chef in his New York residence and to arrange for Meda's transportation and travel visa. Somda-Kogda, Kogda's wife, told the plaintiff, during an in-person meeting, that the personal chef position would pay $1,250 per week, or $5,000 per month, based on a 48-hour work-week, and would include room and board at the defendants' residence. Meda accepted the employment terms offered by Somda-Kogda.
A written employment contract was provided to Meda which laid out the terms of the job, including that Meda would work for the family as a domestic employee and would be paid a monthly salary of $2,500, contrary to Somda-Kogda's initial representation to Meda. When Meda questioned the discrepancy, Kogda assured him that the written contract was necessary to obtain a visa for Meda to come to the United States and promised Meda that a new contract reflecting the $5,000 monthly salary would be executed once Meda arrived in New York. However, when Meda arrived in New York, Kogda failed to provide him with a new contract and confiscated his passport. During his employment with the defendants, Meda was never paid the $5,000 monthly wage that he was promised at his initial meeting with Somda-Kogda. Instead, Meda was paid $1,250 twice a month (a total of $2,500 a month); also, he was required to repay the cost of his travel, $1,200. Furthermore, Meda was required to work 20 hours per day, seven days per week, and to perform various household chores, including cleaning, ironing, and shoveling snow, which were not within the scope of his employment. His shifts were from 6:00 a.m. to 2:00 a.m., and he was allowed no breaks.
Meda was also required to sleep in a rodent-infested basement and was not allowed to eat food from the defendants' kitchen, use the laundry machines, or leave the house on his own. When he tried to leave, he was locked out of the house. He also spent about $180 each month buying cleaning supplies and groceries for the defendants for which he was not reimbursed.
Meda was slapped regularly or hit as punishment for not working hard enough and on one occasion was beaten with a broomstick, because he was unable to get out of bed after suffering symptoms of extreme physical exhaustion. Meda suffered multiple injuries as a result of the physical and psychological abuse he received at the hand of the defendants. Meda was afraid to leave the defendants' home because he knew no one in New York, had nowhere else to go, and could not speak English. In May of 2014, as a result of the defendants' abuse, Meda became very sick and eventually stopped working on June 1, 2014. He was not allowed to see a doctor. On June 13, 2014, the defendants terminated his employment and directed him to leave the Kogda residence.
Meda worked for 181 days, or 3,620 hours (using the 20 hours Meda worked per day as a benchmark), over the course of a six-month period, from approximately December 3, 2013, to June 1, 2014. Since his employment relationship with the defendants ended, the only communication Meda received from the defendants was a January 19, 2018 text message from Kogda in which he stated: "For everything I've done and which may have offended you I ask forgiveness." The plaintiff continues to suffer physically, emotionally, and financially, as a result of the abuse he endured while employed by the defendants.
CONCLUSIONS OF LAW
"[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). "Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true. The district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citations omitted). Establishing the appropriate amount of damages involves two steps: (1) "determining the proper rule for calculating damages on such a claim" and (2) "assessing plaintiff's evidence supporting the damages to be determined under this rule." Id. Rule 54 of the Federal Rules of Civil Procedure explains that "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed. R. Civ. P. 54(c). "[N]otice that comes at the inquest stage" is not sufficient in itself to satisfy the notice requirement of Rule 54(c) and to "permit a plaintiff in a default action to recover for damages not claimed in the complaint." Silge v. Merz, 510 F.3d 157, 161 (2d Cir. 2007). In an inquest on damages following a default, damages must be based on admissible evidence. See Easterly v. Tri-Star Transport Corp., No. 11 CV 6365, 2015 WL 337565, at *5 (S.D.N.Y. Jan. 23, 2015); Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 224 (S.D.N.Y. 2003).
TVPRA
Meda contends that the defendants engaged in multiple TVPRA violations, including 18 U.S.C. §§ 1590 & 1596, 18 U.S.C. § 1589 (Forced Labor), 18 U.S.C. § 1584 (Involuntary Servitude), and 18 U.S.C. § 1592 (Document Servitude). Based on these TVPRA provisions, Meda contends that he is entitled to $81,450 in emotional distress damages and $176,562 in punitive damages. Meda's punitive damages under the TVPRA are "equal to 100% of his compensatory damages." Rana v. Islam, 210 F. Supp.3d 508, 517 (S.D.N.Y. 2016), vacated on other grounds, 887 F.3d 118 (2d Cir. 2018).
Meda's compensatory damages include recovery of unpaid wages and unlawful deductions, as well as liquidated damages as measured under NYLL. See infra pp. 9-10, note 2.
Compensatory Damages Under TVPRA
TVPRA permits a recovery by Meda of emotional distress damages for the physical and psychological abuse he endured at the hands of the defendants. See Gurung v. Malhotra, 851 F. Supp. 2d 583, 594 (S.D.N.Y. 2012) (plaintiff was entitled to recover emotional distress damages under federal law, 18 U.S.C. §§ 1584, 1589, 1590, 1592 and 1595, when the Gurung defendants induced her to work without pay by "seizing her passport and visa, restricting her ability to leave their apartment, and constantly warning her that if she traveled on her own without their permission, she would be arrested, beaten, raped and sent back to India as 'cargo'").
Here, the Court finds that awarding Meda emotional distress damages based on the defendants' conduct, specifically, inducing him to leave Burkina Faso and work for 181 days over the course of six months, from approximately December 3, 2013, to June 1, 2014, immediately confiscating his passport upon his arrival in New York, treating him like a prisoner in the defendants' home, and causing him to suffer both physical and emotional abuse and injuries, is warranted.
In similar cases involving trafficking victims, courts have awarded emotional distress damages at $400 to $800 per day for each day of servitude. See Rana, 210 F. Supp. 3d at 516 (awarding $450 per day in emotional distress damages to trafficking victim who was forced to work 17 hours per day, 7 days a week, with no pay and collecting cases). In this case, Meda seeks $450 per day for his compensatory damages under the TVPRA. While, as noted above, such damages have been awarded at higher rates, the Court finds that Meda's proposed rate is in line with awards in similar cases and thus is reasonable. See, e.g., Gurung, 851 F. Supp. 2d at 594-95 (awarding emotional distress damages at the rate of $417 per day of servitude). Using $450 per day as the basis for Meda's compensatory damages under TVPRA, an award to Meda of $81,450 for the emotional harm that he suffered as a result of the defendants' TVPRA violations ($450 x 181 days of servitude), is warranted.
Punitive Damages Under TVPRA
Section 1595, title 18, United States Code, provides that a successful TVPRA plaintiff "may recover damages." 18 U.S.C. § 1595(a). The word damages is not qualified in the statute and, thus, it is ambiguous suggesting that a panoply of damages including punitive damages are available to a successful TVPRA plaintiff. The Second Circuit Court of Appeals has not provided guidance on whether punitive damages are available under TVPRA; however, the Ninth Circuit Court of Appeals has. That court held that TVPRA's "civil remedy provision [,18 U.S.C. § 1595,] creates a cause of action that sounds in tort [thus,] punitive damages are available." Ditullio v. Boehm, 662 F.3d 1091, 1096 (9th Cir. 2011). In reaching this conclusion, the Ninth Circuit looked to Franklin v. Gwinnett Cty. Public Schools, 503 U.S. 60, 112 S. Ct. 1028 (1992), where the Supreme Court explained that "[t]he general rule . . . is that absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Id. at 70-71, 112 S. Ct. at 1035. Although the Ninth Circuit holding is not binding on the courts in this circuit, the Court is persuaded by the Ninth Circuit's reasoning that punitive damages are recoverable under TVPRA.
Based on Meda's submissions describing the severe conditions he had to endure while employed by the defendants, an award of punitive damages is warranted. This is particularly so here because, "where the wrong complained of is morally culpable, or is actuated by evil and reprehensible motives, [punitive damages are awarded] not only to punish the defendant but [also] to deter him." Gurung, 851 F. Supp. 2d at 595. When awarding punitive damages, courts consider whether "the harm was physical" rather than "economic"; whether the conduct "evinced an indifference to or a reckless disregard of the health or safety of others"; whether the "target of the conduct had financial vulnerability"; whether "the conduct involved repeated actions or was an isolated incident"; and whether "the harm resulted from intentional malice, trickery, or deceit, or mere accident." Rana, 210 F. Supp. 3d at 517.
In this case, Meda suffered both physical and economic harm; as noted above, he was required to sleep in a rodent-infested basement, was deprived of food, was regularly slapped or hit as punishment and, on one occasion, was beaten with a broom stick when he was unable to get out of bed after suffering from extreme exhaustion. Additionally, Meda was required to repay the cost of his travel, and contribute part of his salary for household expenses and paid at a substantially lower rate than the amount for which he had contracted. His employers consistently displayed an indifference to or reckless disregard of his health, forcing him to work after he had become ill and exhausted and repeatedly abused him; moreover, the harm inflicted upon him by his employers was clearly the result of malice and not mere accident.
Based on Meda's inquest submissions, the Court finds that, in addition to $81,450 in emotional distress damages, Meda is entitled to $176,562 in punitive damages under TVPRA. This represents an amount equal to the sum of his compensatory damages, (including emotional distress damages in the amount of $81,450, damages for unpaid wages ($93,132) and unlawful deductions ($1,980), as measured under NYLL.
NYLL
Under NYLL, a plaintiff is to be paid the promised rate for every hour worked. Thus, NYLL § 191, provides, in relevant part, that a domestic worker "shall be paid the wages earned in accordance with the agreed terms of employment, but not less frequently than semi-monthly, on regular pay days designated in advance by the employer." NYLL § 191(1)(d).
Defendant Somda-Kogda informed Meda, during an in-person meeting, that the personal chef position he would occupy would pay $1,250 weekly, or $5,000 per month, using a 48-hour workweek and would include room and board at the defendants' New York residence. Meda accepted the offered employment terms.
According to Meda, based on the agreement into which he entered with Somda-Kodga, Meda was promised a rate of $24.04 per hour (that is, $5,000 per month times 12 months ($60,000) divided by 52 weeks ($1,153.85) and further divided by 48 hours ($24.04). Under NYLL, Meda, a domestic worker, was to be paid "at least one and one-half times [his] normal wage rate" for each hour he worked in excess of forty-four hours in a week. NYLL § 170.
Since the promised wage was $24.04 per hour, Meda's overtime rate is $36.06 per hour ($24.04 x 1.5). Therefore, according to Meda, the defendants owed him $3,101.16 each week in overtime compensation. Combining 44 hours at the regular hourly rate (as promised), $24.04, and the remaining 86 hours at the $36.06 overtime compensation rate, Meda should have been paid $4,158.92 each week and, thus, $108,131.92 over the course of 26 weeks. Instead, Meda earned a salary of $576.92 each week. Hence, the difference between Meda's promised wage and the amount he was actually paid is $93,132. Based on these calculations, the Court finds that an award to Meda of $93,132, in unpaid wages, is warranted.
Meda also seeks payment for unlawful deductions taken from his wage because of the defendants' failure to reimburse him for expenses he incurred performing the duties assigned by the defendants. After promising to pay for Meda's transportation, the defendants required Meda to repay the cost of his travel, $1,200, the cost of his airplane ticket. Meda also spent about $180 a month, purchasing cleaning supplies and groceries for the defendants, which they refused to reimburse. Therefore, awarding Meda $1,200, for his airplane ticket and an additional $1,080 for cleaning materials and groceries he purchased during his six months of employment by the defendants, is warranted.
Meda contends further that, pursuant to NYLL, he may recover liquidated damages equal to 100 percent of his unpaid wages and unlawful deductions if he shows that the defendants' failure to comply with the NYLL was willful. See NYLL §§ 198(1-a), 663(1). Here, because the defendants have defaulted, they have not provided any evidence that their failure to pay the plaintiff was in good faith. Consequently, the Court finds that liquidated damages, in an amount equal to the underpayment Meda suffered are required. See Polit v. Glob. Foods Int'l Corp., No. 14-CV-07360, 2017 WL 1373907, at *6 (S.D.N.Y. Apr. 13, 2017) (awarding liquidated damages equivalent to the amount of unpaid wages under the NYLL where defendants by defaulting, failed to carry their burden to show a good faith basis for underpayments). Therefore, awarding Meda liquidated damages in the amount of $95,112, which is equal to the sum of Meda's unpaid wages ($93,132) and the defendants' unlawful deductions ($1,980), is required. See Gurung, 851 F. Supp. 2d at 593-94.
Meda's application for a reward of liquidated damages is properly brought pursuant only to the NYLL. As the Second Circuit explained in Rana v. Islam, 887 F.3d 118, 122-23 (2d Cir. 2018):
"The New York State Legislature has amended the NYLL liquidated damages provision twice since 2009, making it easier for employees to claim liquidated damages. . . . In 2010, the NYLL liquidated damages provision was amended . . . so that an employee may recover the full amount of any underpayment, all reasonable attorney's fees [and] prejudgment interest as required under the civil practice law and rules. . . .While the wording of the FLSA [Fair Labor Standards Act] and NYLL liquidated damages provisions are not identical, there are no meaningful differences, and both are designed 'to deter wage-and-hour violations in a manner calculated to compensate the party harmed.'" (Citation omitted.) We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct. Double recovery is generally disfavored and it is clear that the New York State legislature rewrote its liquidated damages provision to cover the same ground as the FLSA."
Attorneys' Fees
Meda is also entitled to reasonable attorney's fees under the TVPRA, see 18 U.S.C. § 1595(a), and NYLL §§ 198(1.a) & 5663(1). District courts have "considerable discretion in determining what constitutes reasonable attorney's fees in a given case." Barfield v. New York City Health & Hospitals Corp., 537 F.3d 132, 151 (2d Cir. 2008). When exercising their discretion to determine the reasonableness of attorneys' fees, courts in this Circuit use the "presumptively reasonable fee" standard. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008). The presumptively reasonable fee, also known as the lodestar, is "the product of a reasonable hourly rate and the reasonable number of hours required by the case." Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). In calculating the presumptively reasonable fee, a district court must consider, among others, the twelve factors articulated in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). See Arbor Hill, 522 F.3d at 190. Those factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Id. at 186-87 n.3.
A fee application that is not supported by evidence of "contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done" should normally be denied. New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983).
Meda seeks $293,074.00 in attorneys' fees for the legal services rendered to him by his counsel, Urban Justice Center and Orrick, Herrington & Sutcliffe ("Orrick"). According to Meda, the requested amount represents 52.5 hours of billable work times the hourly rate of $275.00 per hour for Arora, and $250 per hour for David Urena ("Urena") (both of the Urban Justice Center) and, for attorneys at Orrick, Elyse D. Echtman, a partner, at half the usual rate at which she bills clients, or $485 per hour, Jacquelyn Hehir, a managing associate, at half the usual rate at which she bills clients, or $377.50 per hour, and Jason B. Ervin, an associate, at half the usual rate at which he bills clients, or $285.
According to Arora, the hourly rates charged for the legal services counsel rendered to Meda are consistent with the rates charged by senior associates in New York City law firms, appearing at a reduced rate. Arora has provided a copy of the time records for her and Urena as well as time records for the attorneys employed at Orrick. To support her claim concerning the reasonableness of the rates charged by the attorneys who appeared in this action, Arora identified cases involving hourly rates comparable to those charged in this judicial district by attorneys such as the Urban Justice Center and Orrick with similar experience, reputation and ability. She explains that fees in the range of $250 to $450 per hour are considered reasonable. Meda has provided information about his counsel and has demonstrated that the hourly rates charged by them are comparable to the hourly rates charged by counsel of similar background and experience practicing in this judicial district. Hence, the Court is able to assess the reasonableness of the attorneys' fees Meda seeks.
The Court concludes that $293,074 in attorney's fees, based on 849.8 hours for the Orrick attorneys and 52.5 hours for Urban Justice Center attorneys, at the stated hourly rates, are reasonable. Accordingly, an award of attorney fees in the amount of $293,074 is warranted.
Prejudgment Interest
Meda contends, correctly, that he is entitled to prejudgment interest on his state law unpaid wages and unlawful deductions claims. See Najnin v. Dollar Mountain, Inc., No. 14CV5758, 2015 WL 6125436, at *4 (S.D.N.Y. Sept. 25, 2015); New York Civil Practice Law and Rules (N.Y.C.P.L.R.) §§ 5001-04. In this case, Meda seeks to recover liquidated damages only under the NYLL and thus is entitled to recover prejudgment interest on his unpaid wages and unlawful deductions claims. See Hernandez v. JRPAC Inc., No. 14 Civ. 4176, 2016 WL 3248493, at *35 (S.D.N.Y. June 9, 2016).
Under New York law, a successful plaintiff may receive prejudgment interest at a rate of nine percent per year. Nanjin, 2015 WL 6125436, at *4 (citing CPLR §§ 5001, 5004); see also Liu v. Jen Chu Fashion Corp., No. 00 Civ. 4221, 2004 WL 33412, at *5 (S.D.N.Y. Jan. 7, 2004) (citing CPLR 5004) ("The statutory interest rate in New York is 9%"). As to the date from which interest should be found to run, "[i]nterest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." CPLR § 5001(b)
It is within the Court's wide discretion to determine a reasonable date from which to award prejudgment interest. See Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 49 (E.D.N.Y. 2015). In this case, using the start date of December 3, 2013, and end date of June 1, 2014, the midpoint date is approximately March 4, 2014. As Meda notes, the sum of his unpaid wages and unlawful deductions is $95,112. Thus, the March 4, 2014, midpoint date, together with a 9% annual interest rate, and a period of at least 1,718 days (the number of days between March 4, 2014, and November 16, 2018, the day the defendants were required to file opposing papers), Meda's prejudgment interest on his unpaid wages and reimbursement for unlawful deductions is $40,291.01.
Wage Notice and Wage Statement Violations
Meda seeks to recover damages for violations of wage notice and wage statement requirements under NYLL. See NYLL §§ 195(1)(a) & 195(3). "NYLL requires employers to provide employees, at the time of hiring, with a wage notice containing basic information such as rate of pay; prior to February 27, 2015, employers were required to provide employees with these notices annually. [NYLL] §1951(1)(a). Employers are also required to provide employees with a wage statement with each payment of wages. [NYLL] § 195(3)." Pastor v. Alice Cleaners, Inc., 16-CV-7264, 2017 WL 5625556, at *5 (S.D.N.Y Nov. 21, 2017).
"Until February 27, 2015, an employer's failure to provide proper wage statements was a violation for which plaintiffs could receive $100 per work week in damages, with a cap of $2,500." Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 511 (2017) (citations and internal quotation marks omitted). In this case, the record shows that Meda never received the required wage notices or wage statements during the time he worked for the defendants in New York. Thus, awarding him $2,500 in damages is warranted. See id.
Post-Judgment Interest
In a civil action where a money judgment is obtained, "interest shall be calculated from the date of entry of the judgement." 28 U.S.C. § 1961. Therefore, the plaintiff may obtain post-judgment interest, to be calculated by the Clerk of Court, pursuant to 28 U.S.C. § 1961.
RECOMMENDATION
For the reasons set forth above, I recommend that the plaintiff be awarded $491,027, in damages, plus $293,074, in attorney's fees, for a total judgment of $784,101.01. I recommend further that the plaintiff be awarded post-judgment interest, to be calculated by the Clerk of Court, in accordance with 28 U.S.C. § 1961.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lorna G. Schofield, 40 Centre Street, Room 201, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Schofield. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York
September 3, 2019
Respectfully submitted,
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE