Opinion
Civil Action 20 Civ. 8442 (VSB) (SLC)
01-10-2022
EDILANYI MABELL SURIEL MONTE DE OCA, individually and on behalf of all similarly situated employees of Zero Lounge Restaurant, Inc., Plaintiff, v. AGAPITO DELA CRUZ; DOMINGO ESPINAL; LUISA MARTINEZ; MIGUEL ACOSTA, JR.; ZERO LOUNGE RESTAURANT, INC d/b/a “O'SIDE RESTAURANT & LOUNGE”; JOHN DOE 1-10; and ABC CORP's. 1-5, Defendants.
THE HONORABLE VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On October 9, 2020, Plaintiff Edilanyi Mabell Suriel Monte de Oca (“Suriel”) filed this putative collective action under the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq., New York Labor Law) (“NYLL”) §§ 190 et seq. and 650 et seq., and New York's Wage Theft Prevention Act, NYLL § 195 (“WPTA”), seeking payment of unpaid minimum and overtime wages and related relief from Defendants Agapito Dela Cruz (“Cruz”), Domingo Espinal (“Espinal”), Luisa Martinez (“Martinez”), Miguel Acosta, Jr. (“Acosta”), Zero Lounge Restaurant d/b/a O'Side Restaurant & Lounge (the “Restaurant”) (Cruz, Espinal, Martinez, Acosta, and the Restaurant, together, “Defendants”), and fictitious John Does 1-10 and ABC Corporations 1-5 (“ABC”). (ECF No. 1 (the “Complaint”)). Suriel alleges that, during her employment as a waitress at the Restaurant between October 2017 and November 2019, Defendants failed to pay her the proper minimum, overtime, and spread-of-hours wages, illegally retained her earned tips, failed to provide adequate meal breaks, failed to keep adequate records, and failed to provide wage notices or statements as required by law. (Id. ¶¶ 65-117).
Between October 20, 2020 and March 12, 2021, Suriel served the Restaurant, Cruz, Martinez, and Espinal (together, the “Defaulting Defendants”) with the Summons and Complaint. (ECF Nos. 24; 25; 29; 47; 51). After the Defaulting Defendants failed to appear and the Clerk of Court entered certificates of default against them (ECF Nos. 37; 38; 52; 58), Suriel moved for default judgment. (ECF No. 57 (the “Motion”)).
On April 22, 2021, the Honorable Vernon S. Broderick granted the Motion, ordered that default judgment be entered in Suriel's favor against the Defaulting Defendants, and referred this action for an inquest on damages. (ECF No. 61 (“Default Order”)). On July 26, 2021, Suriel's counsel filed notices (the “Notices”) on behalf of Renzo A. Hernandez Martinez (“Hernandez Martinez”) and Juan B. Liz Rosario (“Rosario”), two former Restaurant employees who purportedly “consented to be a plaintiff in [this] action and agree that [Suriel] may serve as the named plaintiff ....” (ECF Nos. 69 ¶¶ 1, 3; 70 ¶¶ 1, 3) (Hernandez Martinez and Rosario, together, the “Opt-in Plaintiffs”). On August 9, 2021, Suriel filed proposed findings of fact and conclusions of law concerning damages, seeking, inter alia, awards of damages and attorneys' fees in favor of herself and the Opt-in Plaintiffs (ECF No. 78 (the “Damages Submission”)).
Suriel never served Acosta with the Summons and Complaint and, thus, did not and could not seek entry of default judgment against him. (ECF Nos. 84 at 3; 57). Counsel verbally advised Judge Broderick that Suriel intended to voluntarily dismiss her claims against Acosta (id.), and Judge Broderick directed Suriel to provide written confirmation of dismissal by June 4, 2021. (ECF No. 66 (the “May 28, 2021 Order”)). Suriel never complied with the May 28, 2021 Order, however, and, more than a year after filing the Complaint, still has not served or sought to dismiss Acosta. Accordingly, as noted below, the Court respectfully recommends that Suriel's claims against Acosta be dismissed without prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b).
For the following reasons, the Court respectfully recommends that:
(1) Suriel be awarded $187,494.00 in damages against the Defaulting Defendants, comprised of: (i) $58,297.00 in unpaid minimum wages; (ii) $30,450.00 in unpaid overtime wages; (iii) $88,747.00 in liquidated damages; and (iv) $10,000.00 in statutory damages;
(2) Suriel be awarded $22,126.63 in pre-judgment interest;
(3) Suriel be awarded post-judgment interest pursuant to 28 U.S.C. § 1961;
(4) Suriel be awarded attorneys' fees in the amount of $62,498.00 and costs in the amount of $400.00;
(5) Suriel's claims against Acosta be DISMISSED without prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b); and
(6) the Opt-in Plaintiffs' requests for damages, attorneys' fees, and costs be DENIED, and that the Opt-in Plaintiffs be DISMISSED without prejudice.
II. BACKGROUND
A. Factual Background
Unless otherwise indicated, the facts are taken from the Complaint, Suriel's affidavit filed in support of the Motion (ECF No. 57-6), and her affidavit filed in support of the Damages Submission (ECF No. 78-1). Given Defaulting Defendants' status, the Court accepts as true all well-pleaded factual allegations in the Complaint, except as to damages. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Whitehead v. Mix Unit, LLC, No. 17 Civ. 9476 (VSB) (JLC), 2019 WL 384446, at *1 (S.D.N.Y. Jan. 31, 2019).
The Restaurant, which “purchased and handled goods moved in interstate commerce, ” is a Bronx-based New York corporation with annual gross sales exceeding $500,000.00. (ECF No. 1 ¶¶ 14, 16). Suriel alleges that, “[o]n any given evening, no fewer than thirty (30) persons work at [the Restaurant], including kitchen staff, servers, manager on duty, bartenders, dishwashers, security/door personnel, and miscellaneous cleaning staff, ‘bussing' staff and miscellaneous assistants.” (Id. ¶ 37).
Cruz, Espinal, and Martinez are “officers, directors, managers, and/or majority shareholders, owners, or individuals who otherwise exercised control over the employment practices of [the Restaurant] prior to and while [Suriel] was employed” there. (ECF No. 1 ¶ 18; see id. ¶¶ 20, 23, 26). They each: “(a) had the power to hire and fire employees of [the Restaurant], including [Suriel]; (b) supervised and controlled employee work schedules of employees [sic], including [Suriel]; (c) supervised and controlled conditions of employment for employees including [Suriel]; (d) determined the rate and method of payment of employees, including [Suriel]; and (e) had authority to and did maintain . . . such employment records a[t] [the Restaurant] . . . for its employees, including [Suriel].” (Id. ¶¶ 21, 24, 27). Suriel alleges that Cruz, Espinal, and Martinez at all times “acted intentionally and maliciously.” (Id. ¶¶ 22, 25, 28).
From October 26, 2017 until November 11, 2019, Suriel worked at the Restaurant as a waitress. (ECF Nos. 1 ¶¶ 15, 17; 78-1 ¶ 1). She typically worked shifts from 8:00 pm to 5:00 am, six days per week, for a total of 54 hours per week. (ECF No. 78-1 ¶¶ 3-5, 12). Her work was “directly essential to” the Restaurant's business operations (ECF No. 1 ¶ 36), often requiring her to work “in excess of ten []hours” in a single day. (Id. ¶ 52; see also ECF Nos. 57-6 ¶ 2 (stating that Suriel “generally started at 8:00 PM and worked to and through approximately 5:00 AM” but “often was required to report earlier and/or work later”); 78-1 ¶ 3 (adding that Suriel “had to be at the [R]estaurant early both to help set up and because waitresses were allowed to reserve tables for customers on a first-come, first-served basis” which “meant that if [she] did not get to work early, ” her “ability to earn tips would be hurt”). “Although [the Restaurant]'s legal closing time was 4:00 AM, [Suriel] was usually required to be present at least until 5:00 AM, to wait” to get her cut of the day's tips. (ECF No. 78-1 ¶ 4; see ECF No. 1 ¶ 56). While she typically worked six days per week (ECF No. 1 ¶ 56; see ECF No. 78-1 ¶ 3), “there were also weeks when [Suriel] . . . worked seven days in a row ....” (ECF No. 78-1 ¶ 5).
Suriel never received “regular meal break[s] or rest breaks, and she was ‘on call' during those times when she attempted to” rest or eat a meal. (ECF No. 1 ¶ 57; see ECF No. 57-6 ¶ 3). If she wanted to eat, she was required to purchase food from the Restaurant, would not be paid for the time spent eating, and was not allowed to leave the premises. (78-1 ¶ 7). “Defendants failed to obtain permission from the Department of Labor to permit shorter meal breaks than those otherwise required by NYLL, and failed, as required, to post such written permission in a conspicuous manner in the main entrance of Defendants' place of business.” (ECF No. 1 ¶ 102).
Suriel also alleges that “Defendants intentionally, knowingly and willfully violated” her rights throughout her entire employment term “by paying her less than the minimum required by law.” (ECF No. 1 ¶ 38). “[W]ait staff and numerous other employees at [the Restaurant] were not paid any base wages at all, even if their tips did not exceed the Federal and New York minimum wages.” (Id. ¶ 45). Tips were Suriel's only form of compensation, and “throughout h[er] employment, Suriel was required to contribute” 20% of her “tips towards a tip pool.” (Id. ¶ 62; see ECF No. 57-6 ¶ 4). “This money was paid to busboys, barbacks, and the cleaning staff, and this was the only pay they received.” (ECF No. 57-6 ¶ 4). At no time did Defendants inform Plaintiff that they intended to claim a credit for tips Plaintiff received towards the wages Defendants otherwise would pay her. (ECF No.1 ¶ 40).
Defendants also “knowingly and willfully failed to pay [Suriel] overtime compensation” as required by the law, despite the fact that she was not an “exempt” employee. (ECF No. 1 ¶¶ 4748, 60). And “[a]t no time was Suriel ever compensated for working a spread of hours in excess of ten (10) hours in any given work day as required by New York law.” (ECF No. 1 ¶ 61).
In addition, Defendants deliberately “failed to keep full and accurate records of Suriel's hours and wages.” (ECF No. 1 ¶¶ 49-50). At the time of her hire, Suriel did not receive written notice of “the terms and conditions of [her] employment related to rate of pay, regular pay cycle and rate of overtime.” Id. ¶ 111-12). Similarly, “[a]t no time during h[er] employment was Suriel ever given a statement documenting payment of wages to him setting forth her name, any deductions made from her pay, any allowances claimed as part of the minimum wage, her gross and net wages for each day in English and/or Spanish, Suriel's native language.” (ECF No. 1 ¶ 64).
Because the Court recommends that no damages be awarded to the Opt-In Plaintiffs, a detailed summary of their employment history is unnecessary.
B. Procedural Background
On October 9, 2020, Suriel filed the Complaint. (ECF No. 1). Between October 20, 2020 and March 12, 2021, Suriel served the Defaulting Defendants with the Summons and Complaint (ECF Nos. 24; 25; 29; 47; 51). After each Defaulting Defendant failed to appear, Suriel requested certificates of default, which the Clerk of Court entered between December 1, 2020, and April 5, 2021. (ECF Nos. 37; 38; 52; 58).
On March 29, 2021, Suriel filed a notice of her “Consent to Sue Under [the FLSA], ” indicating that she agreed “to participate in the action not only on [her] own behalf but also on behalf of all other actual or potential members of the collective group.” (ECF No. 54 ¶ 3).
On April 3, 2021 Suriel filed the Motion. (ECF No. 57). On April 6, 2021 Judge Broderick issued an order (i) directing the Defaulting Defendants to file their opposition to the Motion by April 14, 2021 and (ii) scheduling a hearing on the Motion for April 22, 2021 (the “Hearing”). (ECF No. 59 (the “April 6, 2021 Order”)). On April 10, 2021, Suriel served the Defaulting Defendants with the April 6, 2021 Order. (ECF No. 60).
On April 22, 2021, Judge Broderick held the Hearing. (ECF minute entry Apr. 22, 2021; see ECF No. 84). Neither the Defaulting Defendants nor any representative appeared. (ECF No. 84). At the Hearing, Judge Broderick ruled that he was “going to grant the default judgment as to liability with regard to each of” the Defaulting Defendants. (Id. at 3). That same day, Judge Broderick issued the Default Order granting the Motion and entering “default judgment as to liability . . . in favor of [Suriel] and against” the Defaulting Defendants (ECF No. 61), and referred the action for an inquest on damages. (ECF No. 62). The Default Order referred to “Plaintiff” in the singular and did not state that it extended to any members of the proposed collective. (ECF No. 61).
On April 23, 2021, the Court directed Suriel to file her Damages Submission by May 25, 2021. (ECF No. 63). On May 21, 2021, Suriel's counsel, William H. Grae (“Grae”), requested an extension of the deadline to June 25, 2021, in order “to obtain necessary information and documentation from two (2) additional former employees of the [R]estaurant whom we have been able to identify.” (ECF No. 64 at 1). The Court granted the request. (ECF No. 65). On June 17, 2021, Grae requested a second extension, until July 26, 2021, citing a family vacation and his inability to reach Suriel. (ECF No. 67 at 1). The Court granted the request. (ECF No. 68).
Suriel did not file her Damages Submission by the July 26, 2021 deadline. On that date, however, Grae filed the Notices on behalf of the Opt-in Plaintiffs. (ECF Nos. 69, 70). There is no proof that the Notices were served on any of the Defendants.
On July 27, 2021, the Court sua sponte extended Suriel's deadline to file her Damages Submission until July 30, 2021. (ECF No. 71). On August 2, 2021, not having received the Damages Submission, the Court ordered Suriel to show cause by August 9, 2021 why her case should not be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. (ECF No. 76 (“Order to Show Cause”)).
On August 9, 2021, Grae filed (i) a declaration in response to the Order to Show Cause (the “Response”) and (ii) the Damages Submission. (ECF Nos. 77, 78). In the Response, Grae cited as the basis for failing to timely file the Damages Submission, inter alia, his difficulties in reaching Suriel. (See ECF No. 77 ¶¶ 9-15). The Damages Submission included affidavits from Suriel and both Opt-in Plaintiffs, as well as records concerning their requests for damages and attorneys' fees. (ECF Nos. 78-1-78-12). In their affidavits, both Opt-in Plaintiffs describe themselves as follows:
Unlike Ms. Suriel, who was a waitress in the main restaurant and bar area, I worked at [the Restaurant] as a sort of concierge or attendant in an area of the establishment known as the Hookah Lounge. My job was to set up water pipes (hookahs) with specially-prepared tobacco mixtures and otherwise provide service (including delivery of food and beverages) to [Restaurant] customers who were patrons seated in the Hookah Lounge.(ECF Nos. 78-3 ¶ 5; 78-7 ¶ 5). Both Opt-in Plaintiffs claim they worked at the Restaurant “from October 4, 2017, through September 16, 2019” and that they were “subjected to the same illegal conduct as Ms. Suriel.” (ECF Nos. 78-3 ¶¶ 1, 3; 78-7 ¶¶ 1, 3).
That same day, on August 9, 2021, the Court directed the Defaulting Defendants to respond to the Damages Submission by August 27, 2021. (ECF No. 79 (“August 9, 2021 Order”)). The Court directed Suriel to serve Defendants with the August 9 Order. (Id. at 1). On August 12, 2021, Suriel served the Defaulting Defendants with the August 9 Order. (ECF Nos. 80-83). To date, no Defendant has filed a response to the Damages Submission or otherwise contacted the Court regarding the Inquest.
In the August 9, 2021 Order, the Court found that the Response resolved the Order to Show Cause. (ECF No. 79 at 1).
III. LEGAL STANDARDS
A. Obtaining a Default Judgment
A party seeking a default judgment must follow the two-step procedure set forth in Federal Rule of Civil Procedure 55. See Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186-87 (2d Cir. 2015); Fed.R.Civ.P. 55. First, under Rule 55(a), where a party has failed to plead or otherwise defend in an action, the Clerk of the Court must enter a certificate of default. See Fed.R.Civ.P. 55(a). Second, after entry of the default, if the party still fails to appear or move to set aside the default, the Court may enter a default judgment. See Fed.R.Civ.P. 55(b). Whether to enter a default judgment lies in the “sound discretion” of the trial court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Because a default judgment is an “extreme sanction” that courts are to use as a tool of last resort, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981), the district court must “carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other.” Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 29 (E.D.N.Y. Mar. 19, 2015) (citing Enron, 10 F.3d at 96).
In considering whether to enter a default judgment, district courts are “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Is., Inc., No. 10 Civ. 4398 (JS) (AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011). “These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense.” J & J Sports Prods. Inc. v. 1400 Forest Ave. Rest. Corp., No. 13 Civ. 4299 (FB) (VMS), 2014 WL 4467774, at *4 (E.D.N.Y. Sept. 10, 2014) (citing Swarna v. Al-awadi, 622 F.3d 123, 142 (2d Cir. 2010)); see Enron, 10 F.3d at 96 (noting that “[a]lthough the factors examined in deciding whether to set aside a default or a default judgment are the same, courts apply the factors more rigorously in the case of a default judgment because the concepts of finality and litigation repose are more deeply implicated in the latter action”) (internal citation omitted).
B. Determining Liability
A defendant's default is deemed “a concession of all well-pleaded allegations of liability, ” Rovio Entm't, Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 545 (S.D.N.Y. 2015), but a default “only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants.” Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015). The Court must determine “whether the allegations in [the] complaint establish the defendants' liability as a matter of law.” Id. If the Court finds that the well-pleaded allegations establish liability, the Court then analyzes “whether plaintiff has provided adequate support for [his requested] relief.” Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008). If, however, the Court finds that the complaint fails to state a claim on which relief may be granted, the Court may not award damages, “even if the post-default inquest submissions supply the missing information.” Perez v. 50 Food Corp., No. 17 Civ. 7837 (AT) (BCM), 2019 WL 7403983, at *4 (S.D.N.Y. Dec. 4, 2019), adopted by, 2020 WL 30344 (S.D.N.Y. Jan. 2, 2020).
C. Determining Damages
Once liability has been established, the Court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15 Civ. 5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (citation omitted), adopted by, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [its] entitlement to recovery and thus must substantiate [its] claim with evidence to prove the extent of damages.” Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023 (PAE) (JLC), 2012 WL 676350, at *2 (S.D.N.Y. Mar. 1, 2012). The evidence the plaintiff submits must be admissible. 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 House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order) (“[D]amages must be based on admissible evidence.”). If the documents the plaintiff has submitted provide a “sufficient basis from which to evaluate the fairness of” the requested damages, the Court need not conduct an evidentiary hearing. Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989); see Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (noting that a court may determine appropriate damages based on affidavits and documentary evidence “as long as [the court has] ensured that there [is] a basis for the damages specified in the default judgment”) (internal citation omitted).
When the employer's payroll records are inaccurate or incomplete, “an employee has carried out his [or her] burden if he [or she] proves” enough for the court to make a “inference” that he or she “has in fact performed work for which he [or she] was improperly compensated and if he [or she] produces sufficient evidence to show the amount and extent of that work[.]” Kuebel v. Black & Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011) (citation omitted). The Court may credit a plaintiff's “recollections regarding [her] hours and pay in conducting [the] inquest.” Coley v. Vannguard Urban Improvement Ass'n, Inc., No. 12 Civ. 5565 (PKC) (RER), 2018 WL 1513628, at *7 (E.D.N.Y. Mar. 27, 2018), as amended Mar. 29, 2018. The Court “must ensure that [her] 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).
D. Opt-in Plaintiffs' Entitlement to Damages on Default
“In an action brought under the FLSA, employees who are found to have been similarly situated to named plaintiffs may opt into an FLSA ‘collective,' so as to assert their own FLSA claims against the named defendant.” Alonso v. New Day Top Trading, Inc., No. 18 Civ. 4745 (PAE) (DF), 2020 WL 9815184, at *7 (S.D.N.Y. June 29, 2020) (citing 29 U.S.C. § 216(b)).
“[C]ourts in this Circuit have held that ‘a default judgment is not warranted as to any potential opt-in plaintiffs who may subsequently consent to become a party to [an] action' absent an amended complaint specifically naming the opt-in parties.'” Baca v. 24 Hour Laundromat, No. 15 Civ. 6707 (JFB) (ARL), 2017 WL 1216574, at *1 (E.D.N.Y. Mar. 31, 2017) (quoting Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 133 (E.D.N.Y. 2011); see also Ismail v. Bake Ridge Bagels, Inc., No. 18 Civ. 517 (ILG) (RML), 2020 WL 8988274, at *2 (E.D.N.Y. May 26, 2020) (“Opt-in plaintiffs are not entitled to default judgment based on a complaint in which they are not named.”) (citation and alteration omitted); Tejada v. La Selecta Bakery, Inc., No. 17 Civ. 5882 (CBA) (RER), 2019 WL 2343909, at *2 (E.D.N.Y. May 1, 2019) (“In FLSA collective action cases, courts have expressed concern about whether opt-in plaintiffs are entitled to default judgment based on a complaint in which they are not named, but wherein the intent to proceed as a collective action is clear.”) (internal quotation and alteration omitted), adopted by, 2019 WL 2341680 (E.D.N.Y. June 3, 2019); Hosking v. New World Mortg., Inc., No. 07 Civ. 2200 (MKB), 2013 WL 5132983, at *7 (E.D.N.Y. Sept. 12, 2013) (“Courts in this Circuit have declined to apply default judgments granted to individual plaintiffs prior to class certification and the addition of opt-in plaintiffs to later-added plaintiffs.”), aff'd, 570 Fed.Appx. 28 (2d Cir. 2014); c.f. Alonso, 2020 WL 9815184, at *17 (recommending vacatur of order granting default judgment in favor of plaintiffs who opted into FLSA collective action before default judgment was entered where the opt-in plaintiffs failed to serve their consent-to-join notices on the defendants prior to entry of default judgment), adopted by, 2021 WL 4691320 (S.D.N.Y. Oct. 7, 2021).
Indeed, “[i]n cases where a collective action has not been certified, courts in this district have repeatedly held that without service of an amended pleading that incorporates the opt-in plaintiffs' claims, there is no legal basis upon which to award damages, attorney's fees, and costs to the opt-in plaintiffs.” Jiao v. Kitaku Japanese Rest., Inc., No. 16 Civ. 2694 (RRM) (RML), 2020 WL 2527588, at *3 (E.D.N.Y. Mar. 13, 2020) (internal quotation and alterations omitted) (collecting cases), adopted by, 2020 WL 2523109 (E.D.N.Y. May 18, 2020).
IV. DISCUSSION
A. The Opt-in Plaintiffs
Suriel filed the Complaint on behalf of herself and other “similarly situated” employees of the Restaurant (ECF No. 1 ¶ 1). She also filed a separate notice of her “Consent to Sue Under [the FLSA], ” indicating that she agreed “to participate in the action not only on [her] own behalf but also on behalf of all other actual or potential members of the collective group.” (ECF No. 54 ¶ 3). Suriel “ask[s] the Court not only [to] award damages to [her] but also award damages to” the Opt-in Plaintiffs, who, she claims, “were subject to similar work conditions and rules for compensation.” (ECF No. 78-1 ¶¶ 14, 15). Both Opt-in Plaintiffs submitted affidavits in which they attest that they worked at the Restaurant “from October 4, 2017, through September 16, 2019” and were “subjected to the same illegal conduct as Ms. Suriel.” (ECF Nos. 78-3 ¶¶ 1, 3; 787 ¶¶ 1, 3).
The Complaint, however, does not include substantive allegations about the Opt-In Plaintiffs or any other employees, and Suriel never moved for collective or class certification or sought leave to amend to include specific colleagues. The Opt-in Plaintiffs filed their Notices (ECF Nos. 69, 70) after Judge Broderick entered the Default Order in favor of Suriel alone, and there is no evidence that the Notices were ever served on the Defaulting Defendants.
As discussed above, “[i]n cases where a collective action has not been certified, courts in this district have repeatedly held that without service of an amended pleading that incorporates the opt-in plaintiffs' claims, there is no legal basis upon which to award damages, attorney's fees, and costs to the opt-in plaintiffs.” Jiao, 2020 WL 2527588, at *3. Accordingly, without a pleading that incorporates their claims, the Opt-in Plaintiffs have no basis to recover damages at this juncture.
Where an opt-in plaintiff files notice of consent to join an FLSA action before a motion for default judgment is filed, “the typical course of action has been to grant leave to amend the complaint, while deferring a ruling on default judgment as to any named plaintiffs until the opt-in plaintiffs are formally joined.” Jiao, 2020 WL 2527588, at *4 (collecting cases). “These cases follow the reasoning that it is unclear whether the Court could continue to adjudicate the FLSA collective action after granting Plaintiff default judgment because an entry of default judgment is a form of final relief that may trigger the mootness doctrine and bar plaintiff from continuing as the class representative in the FLSA collective action.” Bhagwat v. Queens Carpet Mall, Inc., No. 14 Civ. 5474 (ENV)(PK), 2017 WL 1365121, at *6 (E.D.N.Y. Mar. 10, 2017) (internal quotation and citation omitted), adopted by, 2017 WL 1376372 (E.D.N.Y. Apr. 11, 2017) see also Noboa v. Toron Restoration Corp., No. 14 Civ. 730 (ARR) (CLP), 2015 WL 1672815, at *5 (E.D.N.Y. Mar. 26, 2015) (“If the opt-in plaintiffs are not named in an amended complaint prior to judgment being entered in favor of [the named plaintiff], [the named plaintiff]'s case would be closed, and a motion to amend would be moot.”). “Thus, courts have found that fairness considerations counsel[] in favor of deferring entry of default judgment.” Jiao, 2020 WL 2527588, at *4; see also Bhagwat, 2017 WL 1365121, at *6 (“An entry of default judgment now in favor of [the named plaintiff] may ‘trigger the mootness doctrine,' which would then disqualify [the named plaintiff] from serving as the class representative, frustrate renewal of [the opt-in plaintiff]'s motion for default judgment, or preclude prosecution of the claims of other individuals who may qualify as opt-in plaintiffs”) (quoting Noboa, 2015 WL 1672815, at *5).
Here, permitting amendment of the Complaint to include the Opt-in Plaintiffs' claims is not warranted. In the first instance, because Judge Broderick already, in the Default Order, entered default judgment in favor of Suriel (ECF No. 61), “a motion to amend would be moot.” Noboa, 2015 WL 1672815, at *5. In any event, “fairness considerations counsel in favor of a different course of action.” Jiao, 2020 WL 2527588, at *4 (recommending that an opt-in plaintiff's “motion for default judgment be denied, that his claims be dismissed without prejudice, and that the court proceed with entry of default judgment in favor of [the named plaintiff]”). First, “[w]ith respect to prejudice to future opt-in plaintiffs, it seems exceedingly unlikely at this juncture that additional opt-in plaintiffs will seek to join.” Id. Suriel filed this case over two years ago (see ECF No. 1), and the two Opt-in Plaintiffs “are the only former employees [she has] been able to locate.” (ECF No. 78-1). In addition, “while entry of default in favor of [Suriel] could prevent [the Opt-in Plaintiffs] from formally joining as a plaintiff in this case and separately moving for default judgment at a later time, it would not preclude [them] from filing a separate action against defendants in state court.” Jiao, 2020 WL 2527588, at *4 (recommending dismissal of opt-in plaintiff whose NYLL claims were still timely).
Accordingly, I respectfully recommend that the Opt-in Plaintiffs' request for damages, attorneys' fees, and costs be denied, and that the Opt-in Plaintiffs be dismissed without prejudice.
Should the Opt-in Plaintiffs wish to pursue relief in this action, Suriel may move to vacate the Default Order and seek leave to file an amended complaint that includes the Opt-in Plaintiffs, thereby providing the Defaulting Defendants with proper notice of their claims. C.f. Alonso, 2020 WL 9815184, at *17 (S.D.N.Y. June 29, 2020). If the Defaulting Defendants again fail to appear, the Opt-in Plaintiffs could then seek default judgment and an award of damages and attorneys' fees.
B. Default Judgment
In accordance with the two-step procedure set forth in Rule 55, the Clerk of the Court entered certificates of default as to the Defaulting Defendants (ECF Nos. 37; 38; 52; 58) and Judge Broderick entered the Default Order as to them (ECF No. 61). Furthermore, an analysis of the relevant factors reveals first that it can be inferred from Defaulting Defendants' failure to submit any written reply to Suriel's Motion or Damages Submission, after having been properly served, that their default was willful. See Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 (LTS) (GWG), 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (finding that a failure to respond to a complaint and subsequent motion for default judgment “indicate[s] willful conduct”). Second, delaying entry of a default judgment might prejudice Suriel. 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 presented no defense whatsoever. Thus, because the requirements of Rule 55 are satisfied and the relevant factors weigh in Suriel's favor, the Court finds that entry of default judgment is proper in this case.
C. Liability
1. Jurisdiction and venue
As a threshold matter, the Court has subject matter jurisdiction over this action. Suriel 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 her NYLL claims because they arise out of the same facts and circumstances as her FLSA claims. See Perez, 2019 WL 7403983, at *5.
The Court also has personal jurisdiction over the Defaulting Defendants. Personal jurisdiction is “a necessary prerequisite to entry of a default judgment.” Reilly v. Plot Commerce, No. 15 Civ. 05118 (PAE) (BCM), 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016) (citation omitted), adopted by, 2016 WL 5107058 (E.D.N.Y. Sept. 19, 2016). The Court has personal jurisdiction over the Restaurant, which is located in this District, as well as Cruz, Martinez, and Espinal, who own and operate the Restaurant (ECF No 1 ¶¶ 13, 20, 23, 26), and each of whom was served with the Summons and Complaint. (ECF Nos. 24, 25, 29, 47, 51).
Venue is proper because the Restaurant is a New York corporation that operates in this District (ECF Nos. 1 ¶ 13), see 28 U.S.C. § 1391(b)(1), and because the events or omissions giving rise to Suriel's claims occurred in this District. (ECF No. 1); see 28 U.S.C. § 1391(b)(2).
2. Statute of limitations
Under the NYLL, the statute of limitations is six years. See NYLL § 198(3). Under the FLSA, the statute of limitations is two years, or, if the violations were “willful, ” three years. See 29 U.S.C. § 255(a); see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 129 (1988). An FLSA violation is willful if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin, 486 U.S. at 133. Although plaintiffs may not recover under both the FLSA and the NYLL for the same injury, courts allow plaintiffs to recover under the statute that provides for the greatest relief. Ni v. Bat-Yam Food Servs. Inc., No. 13 Civ. 7274 (ALC) (JCF), 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016).
Here, Suriel worked at the Restaurant from October 26, 2017 to November 11, 2019 (ECF Nos. 1 ¶ 17; 78-1 ¶ 1), and filed the Complaint on October 9, 2020. (ECF No. 1). Thus, Suriel's employment period is entirely within the NYLL's six-year statute of limitations, but only half would be covered by the FLSA's statute of limitations. Because the NYLL provides for equal or greater relief relative to the FLSA, the Court recommends awarding Suriel damages under the NYLL. See Schalaudek v. Chateau 20th St. LLC, No. 16 Civ. 11 (WHP) (JLC), 2017 WL 729544, at * 5 (S.D.N.Y. Feb. 24, 2017).
Suriel's employment period would be completely covered by the FLSA's three-year statute of limitations for willful violations. To support her contention that the Defaulting Defendants' conduct was willful, Suriel repeatedly alleges that each Defendant “acted intentionally and maliciously at all times relevant” to her allegations, and that they “knowingly” and “willfully” violated her rights under the FLSA and NYLL. (ECF No. 1 ¶¶ 23, 25, 28, 31, 38, 42, 44, 47, 50, 51, 68, 72, 81, 82, 107, 111). The Complaint, however, contains no specific factual support for these allegations. (See ECF No. 1). In Whiteside v. Hover-Davis, Inc., the Second Circuit held that “a plaintiff at the pleadings stage must allege facts that give rise to a plausible inference of willfulness for the three-year exception to the FLSA's general two-year statute of limitations to apply.” 995 F.3d 315, 320 (2d Cir. 2021). “The Whiteside Court did not address what impact, if any, its ruling would have when a defendant defaults and willfulness is therefore inferred as a matter of law assuming it has been pled.” Baez v. RCO Restoration Corp., No. 20 Civ. 1066 (VSB) (JLC), 2021 WL 1847379, at *2 (S.D.N.Y. May 10, 2021), adopted by, 2021 WL 4077944 (S.D.N.Y. Sept. 8, 2021); see Wicaksono v. XYZ 48 Corp., No. 10 Civ. 3635 (LAK) (JCF), 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) (finding that, “[b]ecause the defendant defaulted and the complaint alleges that all of the violations were undertaken “knowingly, intentionally and willfully, ” the plaintiffs [were] entitled to a finding that the defendant's conduct was willful, and the three year statute of limitations will apply”), adopted by, 2011 WL 2038973 (S.D.N.Y. May 24, 2011). Because Suriel is “being awarded damages under New York Labor Law, which has a six-year statute of limitations, this issue need not be further considered in this case.” Baez, 2021 WL 1847379, at *2; see Wen v. Hair Party 24 Hours Inc., No. 15 Civ. 10186 (ER) (DF), 2021 WL 3375615, at *15 (S.D.N.Y. May 17, 2021) (“The NYLL, however, with its six-year statute of limitations, would cover the entire period of Plaintiff's employment, without the Court's needing to reach the question of whether Plaintiff has adequately pleaded ‘willfulness' under the FLSA, so as to be able to take advantage of the ‘willfulness' exception to the statute's two-year limitations period.”), adopted by, 2021 WL 2767152 (S.D.N.Y. July 2, 2021).
3. FLSA and NYLL elements
To state a claim for wages under the FLSA, a plaintiff must allege that: (1) she was the defendant's employee; (2) her work involved interstate activity; and (3) she worked for hours for which she did not receive minimum or overtime wages. See Tackie v. Keff Enter., Inc., No. 14 Civ. 2074 (JPO), 2014 WL 4626229, at *2 (S.D.N.Y. Sept. 16, 2014). A wage-and-hour claim under the NYLL involves a similar analysis, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Id. at *2 n.2. To recover overtime compensation, a plaintiff “must allege sufficient factual matter to state a plausible claim that [she] worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). To recover spread-of-hours pay, she must also allege that she worked “more than ten hours per day . . . and [was] not paid an additional hour at the minimum wage rate for days in which [she] worked [ten] or more hours.” Rodriguez, 784 F.Supp.2d at 123.
a. The employment relationship
Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). Courts afford the term employer “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, No. 15 Civ. 2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019), adopted by, 2019 WL 2544666 (S.D.N.Y. June 20, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)). Under the FLSA, “[a]n individual may have multiple ‘employers, '” such that “‘all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].'” Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017) (quoting 29 C.F.R. § 791.2(a)).
To determine whether the Defaulting Defendants were Suriel'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.” Irizarry, 722 F.3d at 105 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). This “inquiry is a totality-of-the-circumstances approach, so no one factor is dispositive[.]” Tackie, 2014 WL 4626229, at *2.
Under the NYLL, the definition of “employer” is also broad, see NYLL § 190(3), “and the crucial inquiry, in determining whether an employer-employee relationship exists, is the ‘degree of control exercised by the purported employer over the results produced or the means used to achieve the results.'” Mondragon, 2019 WL 2551536, at *7 (quoting Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013) (“Hart I”)). In the absence of a decision from the New York Court of Appeals answering “the question whether the test for ‘employer' status is the same under the FLSA and the NYLL, ” Camara v. Kenner, No. 16 Civ. 7078 (JGK), 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018), “[t]here is general support for giving FLSA and the [NYLL] consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa).” Hart I, 967 F.Supp.2d at 924 (internal citation omitted). “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.”
Suriel alleges that the Defaulting Defendants employed her at the Restaurant as a waitress. (ECF Nos. 1 ¶¶ 15, 17; 78-1 ¶ 1). By their default, the Defaulting Defendants have admitted their status as Suriel's employers. See Rovio Entm't, 97 F.Supp.3d at 545. Suriel claims that Cruz, Espinal, and Martinez serving as “officers, directors, managers, and/or majority shareholders, owners, or individuals who otherwise exercised control over the employment practices of [the Restaurant] prior to and while [Suriel] was employed” there. (Id. ¶ 18; see Id. ¶¶ 20, 23, 26). Suriel also alleges that Cruz, Espinal, and Martinez “(a) had the power to hire and fire employees . . .; (b) supervised and controlled employee work schedules . . .; (c) supervised and controlled conditions of employment . . .; (d) determined the rate and method of payment . . .; and (e) had authority to and did maintain . . . employment records.” (ECF No. 1 ¶¶ 21, 24, 27). (ECF No. 1). Suriel has therefore adequately alleged an employer-employee relationship with the Defaulting Defendants. Perez, 2019 WL 7403982, at *6.
Because the Defaulting Defendants were Suriel's employers, each one is jointly and severally liable under the FLSA and NYLL for any damages award. See Fermin, 93 F.Supp.3d at 37 (imposing joint and several liability on defaulting corporate and individual defendants); Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 685 (S.D.N.Y. 2011) (imposing joint and several liability on defaulting corporate and individual defendants where allegations that individual defendant “was an owner, partner, or manager, ” along with his default, established him as employer under the FLSA and the NYLL).
b. Interstate commerce
Under the FLSA, Suriel must establish that she or her 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”).
Suriel has plausibly alleged that the Defaulting Defendants engaged in interstate commerce. Suriel alleged that the Restaurant “is a business engaged in interstate commerce, ” “purchas[ing] and handl[ing] goods moved in interstate commerce, ” with annual gross sales of more than $500,000.00 per year. (ECF No. 1 ¶¶ 14, 16). The Restaurant is located in the Bronx (id. ¶ 13), 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, 93 F.Supp.3d at 33("[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, Suriel's allegations meet the threshold for enterprise liability under the FLSA, see 29 U.S.C. § 203(s)(1)(A), and therefore, Suriel has satisfied the interstate commerce element for FLSA liability. See Mondragon, 2019 WL 2251536, at *9.
c. Unpaid minimum wages
The FLSA and NYLL require employers to pay employees a statutory minimum wage for the first 40 hours that employees work each week (“Straight Time Wages”). See 29 U.S.C. § 206(a)(1); 12 N.Y.C.R.R. § 146-1.2. 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 than the federal minimum wage. 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.” Liu v. Jen Chu Fashion Corp., No. 00 Civ. 4221 (RJH) (AJP), 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004).
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) (“Hart II”) (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). Where the plaintiff “asserts that [she] did not receive any meal or rest breaks[, ]” “all of [her] time worked [will be] compensable.” Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 235 (S.D.N.Y. 2020), adopted by, No. 16 Civ. 8782 (AJN) (RWL), 2021 WL 2139441 (S.D.N.Y. May 26, 2021).
The NYLL requires certain employers to provide: (1) a meal period of at least thirty minutes for employees who work a shift of more than six hours over the time period encompassing 11:00 a.m. to 2:00 p.m., within that period; (2) an additional twenty-minute meal period between 5:00 pm and 7:00 p.m. for employees whose shift started before 11:00 a.m. and continued later than 7:00 p.m.; and/or (3) a forty-five minute meal period at a time midway between the beginning and end of the shift for employees whose shift lasts more than six (6) hours and starts between 1:00 pm and 6:00 a.m. See NYLL § 162(2)-(4).
Suriel alleges that she never received a meal break although her shifts lasted more than six hours and started between 1:00 p.m. and 6:00 a.m. (ECF No. 1 ¶¶ 57; 99-103). Accordingly, “all of [her] time worked [will be] compensable.” Villanueva, 500 F.Supp.3d at 235.
Although Suriel asserts a separate claim under NYLL § 162 (ECF No. 1 ¶¶ 99-103), it “fails as a matter of law because there is no private right of action under [NYLL] § 162.” Jiao, 2020 WL 2527588, at *14.
Employers may compensate tipped employees at a lower hourly rate by crediting a portion of their tips against the minimum wage. 29 U.S.C. § 203(m)(2); 12 N.Y.C.R.R. § 146-1.3(b); see Andrade v. First Ave. Rest. Ltd., No. 14 Civ. 8268 (JPO) (AJP), 2016 WL 3141567, at *4 (S.D.N.Y. June 3, 2016), adopted by, 2016 WL 3948101 (S.D.N.Y. July 19, 2016). “To be eligible to take a tip credit, however, the employer must satisfy certain prerequisites.” Kim v. Kum Gang, Inc., No. 12 Civ. 6344 (MHD), 2015 WL 2222438, at *23 (S.D.N.Y. Mar. 19, 2015). These prerequisites include the requirement that the employer notify the employee, before the employment begins, “of its intention to include tip income when calculating wages actually paid for minimum wages purposes.” 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). The employer bears the burden of proving that this notice was given. See Reyes v. Cafe Cousina Rest. Inc., No. 18 Civ. 1873 (PAE) (DF), 2019 WL 5722475, at *5 (S.D.N.Y. Aug. 27, 2019).
The NYLL also allows an employer to pay tipped food service workers a lower minimum wage under certain conditions. See NYLL § 652(4). “An employer may receive the benefit of this tip credit only if the employer provides ‘to each employee a statement with every payment of wages listing . . . allowances . . . claimed as part of the minimum wage' and ‘maintain[s] and preserve[s] for not less than six years weekly payroll records which shall show for each employee . . . allowances . . . claimed as part of the minimum wage.'” Cao, 2010 WL 4159391, at *2 (quoting Padilla v. Manlapaz, 643 F.Supp.2d 302, 309-10 (E.D.N.Y. 2009)); 12 N.Y.C.R.R. §§ 146-1.3, -2.2. Under both the FLSA and the NYLL, the notice must be sufficient to apprise the employee of the tip credit provision and the fact that the employer intends to take the credit as to the employee's wages. See Reyes, 2019 WL 5722475, at *5; Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 467 (S.D.N.Y. 2015) (finding generic FLSA posters to be insufficient notice).
Suriel alleges that the Defaulting Defendants never paid her any wage beyond what she collected in tips. (See ECF No. 1 ¶¶ 38-39, 44, 59). Moreover, she claims that the Defaulting Defendants never informed her that the amount of money she collected in tips would accrue towards her wages, or that she was entitled to earn a minimum wage. (ECF Nos. 1 ¶¶ 40-41). Because the Defaulting Defendants failed to meet the notice requirements in the FLSA and the NYLL, they were not entitled to any tip credit against the minimum wage. See Schalaudek, 2017 WL 729544, at *7 (citing 12 N.Y.C.R.R. § 146-1.3). Accordingly, the Defaulting Defendants were required to pay Suriel's full minimum wage, rather than the lower minimum wage for tipped workers. See Cao, 2010 WL 4159391, at *2.
The New York State minimum wage rate during Suriel's employment at the Restaurant was as follows:
Time Period
Oct. 26, 2017 until Dec. 31, 2017
$11.00
Dec. 31, 2017 until Dec. 31, 2018
$13.00
Dec. 31, 2018 until Nov. 11, 2019 (New York City Large Employer)
NYLL § 652.
A “large” employer” is one with eleven or more employees. See NYLL § 652(1)(a)(i). Suriel alleges that, “[o]n any given evening, no fewer than thirty (30) persons work at [the Restaurant], including kitchen staff, servers, manager on duty, bartenders, dishwashers, security/door personnel, and miscellaneous cleaning staff, ‘bussing' staff and miscellaneous assistants.” (ECF No. 1 ¶ 37).
Suriel alleges that the Defaulting Defendants failed to pay her in accordance with these statutory minimums from October 26, 2017 until November 11, 2019. (ECF No. ¶¶ 17, 45). Accordingly, Suriel is entitled to recover Straight Time Wages for the amount by which she was underpaid. See 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) (finding that plaintiffs were entitled to damages for unpaid minimum wages); Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *8-9 (S.D.N.Y. Feb. 26, 2020) (same). The Defaulting Defendants did not pay Suriel in accordance with these statutory minimums, and, thus, Suriel is entitled to recover damages for the amount by which she was underpaid. See Cao, 2010 WL 4159391, at *2.
d. Unpaid overtime
Both the FLSA and the NYLL require an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. To state an overtime claim, a plaintiff “must allege only that 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.
Suriel claims that she typically worked shifts from 8:00 p.m. to 5:00 a.m., six days per week, for a total of 54 hours per week (ECF No. 78-1 ¶¶ 3-5, 12), and that the Defaulting Defendants “failed to pay [her] lawful overtime compensation” for the hours she worked over 40 hours per week. (ECF No. 1 ¶¶ 47-48, 60). Thus, Suriel has adequately stated a claim for unpaid overtime wages under the FLSA and the NYLL. See Agureyev, 2021 WL 847977, at *7 (holding that plaintiff stated claim for overtime wages); Mondragon, 2019 WL 2551536, at *9 (same).
e. Spread-of-hours pay
Under the NYLL, employers must pay covered employees one extra hour of compensation, at the basic minimum wage rate, for each day on which they worked more than ten hours. 12 N.Y.C.R.R. § 142-2.4(a). Spread of hours is defined as “the interval between the beginning and end of an employee's workday” and “includes working time plus time off for meals plus intervals off duty.” Id. § 142-2.18. “[T]he spread of hours regulations ‘apply to all employees in restaurants . . . regardless of a given employee's regular rate of pay.'” Andrade, 2016 WL 28 3141567, at *4. An employee may recover spread-of-hours wages in addition to federal and state overtime wages. See Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 339-41 (S.D.N.Y. 2005).
Suriel states that she “often worked shifts longer than ten [] hours, ” (ECF Nos. 57-6 ¶ 4; 78-1 ¶ 10), but “[a]t no time was [she] ever compensated for working a spread of hours in excess of ten hours in any given work day” (ECF No. 1 ¶ 61). Suriel does not allege, however, when or on how many occasions she worked more than ten hours per day, nor does her Damages Submission include any amount of claimed spread-of-hours damages. (ECF No. 78-1). Accordingly, the Court finds that Suriel has failed to provide a sufficient basis to recover spread-of-hours damages. See Inga, 2021 WL 3624666, at *10.
f. Statutory wage notices and statements
“The [WPTA], which became effective April 9, 2011, required [the Defaulting Defendants] to provide [Suriel], at the time of hiring, with a notice containing, inter alia, the rate and frequency of her pay, NYLL § 195(1), and to furnish her with a written statement with each payment of wages, listing, inter alia, the dates covered by the payment, the regular rate of pay, the overtime rate, and the number of hours worked. NYLL § 195(3).” Mondragon, 2019 WL 2551536, at *12.
Here, Suriel alleges that the Defaulting Defendants failed to provide her with a wage notice at the time of her hiring, and that they failed to furnish proper weekly wage statements such that she is entitled to statutory penalties. (ECF No. 1 ¶¶ 6, 51, 64, 109-17; ECF No. 78-1 ¶¶ 2, 11). Accordingly, Suriel has is entitled to recover statutory damages under §§ 195(1) and 195(3).
Accordingly, the Court finds that the well-pleaded allegations in Suriel's Complaint establish the Defaulting Defendants' liability for unpaid minimum wages, unpaid overtime wages, liquidated damages, and statutory damages, but that Suriel has not established a claim for spread-of-hours damages.
D. Damages Calculations
No party has requested a hearing on the issue of damages, and the Defaulting Defendants have not submitted any written materials. Therefore, the Court has conducted its inquest based solely on the materials Suriel submitted in support of her request for damages. See Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (“[A] district court may determine there is sufficient evidence either based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence.”); Perez, 2019 WL 7403983, at *3; Fed.R.Civ.P. 55(b)(2).
The Court must also determine whether Suriel has provided sufficient evidence to support her claim for damages. Transatlantic Marine, 109 F.3d at 111; Bleecker v. Zetian Sys., Inc., No. 12 Civ. 2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013). In support of her Damages Submission, Suriel has filed an affidavit attesting to the dates and circumstances of her employment. (ECF No. 78-1). Despite multiple warnings (see ECF Nos. 59, 79), the Defaulting Defendants have not responded to the Motion or provided any contrary evidence. The Court finds that Suriel has met her burden and that an in-person hearing is unnecessary because his submission, combined with the Defaulting Defendants' admissions resulting from their default, constitutes a “sufficient basis from which to evaluate the fairness” of his damages request. Fustok 873 F.2d at 40; see Boston Sci. Corp. v. New York Ctr. for Specialty Surgery, No. 14 Civ. 6170 (RRM), 2015 WL 13227994, at *3 (E.D.N.Y. Aug. 31, 2015) (same).
1. Straight Time Wages
Suriel attests that, from October 26, 2017 until November 11, 2019, she regularly worked nine-hour shifts six days per week, for a total of 54 hours per week. (ECF No. 78-1 ¶¶ 3-5, 12). As discussed above, the Defaulting Defendants were required to pay Suriel Straight Time Wages at New York's statutory minimum wage for the first 40 hours that she worked each week. (See supra § IV.C.3.c). Having reviewed the Damages Submission, the Court disagrees with Suriel's calculation of the Straight Time Wages she is owed, and instead recommends that Suriel be awarded Straight Time Wages in the amounts below:
Time Period
Straight Time Rate
Unpaid Straight Time Hours
Straight Time Wages Awarded
$11.00
387
$5,643.00
$4,257.00
12/31/2017 - 12/31/2018
$13.00
2080
$36,504.00
$27,040.00
$15.00
1800
$38,610.00
$27,000.00
Total
$58,297.00
To calculate her claimed Straight Time Wages, Suriel improperly included all 54 hours per week that she worked, rather than just the first 40 hours. (ECF No. 78-1 at 8).
This period comprises nine full weeks (i.e., 360 Straight Time hours) and one partial week, during which Suriel worked three days (i.e., 27 hours). (ECF No. 78-1 at 8).
This period comprises 45 full weeks.
2. Overtime wages
The Court calculates appropriate overtime wages “by multiplying [an employee's] regular hourly rate (or the minimum wage rate, if his regular hourly rate falls below the minimum wage) by one and one-half, ” then by multiplying that rate “by the number of hours in excess of forty hours the employee worked each week.” Rosendo v. Everbrighten Inc., No. 13 Civ. 7256 (JGK) (FM), 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015).
Having reviewed the Damages Submission, the Court disagrees with Suriel's calculation of the overtime wages she is owed, and instead recommends that Suriel be awarded overtime wages in the amounts below:
Time Period
Overtime Rate
Unpaid Overtime Hours
Overtime Wages Awarded
10/26/2017 - 12/31/2017
126
$297.00
$2,079.00
12/31/2017 - 12/31/2018
728
$2,028.00
$14,196.00
12/31/2018 - 11/11/2019
630
$2,025.00
$14,175.00
Total
$30,450.00
There are two flaws in Suriel's calculation of her claimed overtime wages, both of which resulted in figures significantly below her actual damages. First, despite claiming that she worked 54 hours per week (i.e., 14 overtime hours), Suriel's calculations reflect only six overtime hours per week. Second, Suriel calculated the overtime rate by multiplying the minimum wage by one-half, rather than by one and one-half. (See ECF No. 78-1 at 8).
The overtime rate for this period is $11.00 * 1.5.
The overtime rate for this period is $13.00 * 1.5.
The overtime rate for this period is $15.00 * 1.5.
3. Liquidated damages
Under the FLSA, “a plaintiff who demonstrates that [s]he was improperly denied either minimum or overtime wages may recover, in addition to reimbursement of these unpaid wages, an ‘additional equal amount as liquidated damages.'” Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14 Civ. 10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) (quoting 29 U.S.C. § 216(b)), adopted by 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). “[W]here the employer shows that, despite its failure to pay appropriate wages, it acted in subjective ‘good faith' with objectively ‘reasonable grounds' for believing that its acts or omissions did not violate the FLSA, ” the Court has the discretion to deny liquidated damages. Barfield, 537 F.3d at 150 (quoting 29 U.S.C. § 260). This burden is “a difficult one, ” id. (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)), and where “defendants never made this showing in light of their default, they have not rebutted the presumption in favor of a liquidated damages award.” Guaman v. J & C Top Fashion, Inc., No. 14 Civ. 8143 (GBD) (GWG), 2016 WL 791230, at *7 (S.D.N.Y. Feb. 22, 2016). A plaintiff who “is entitled to liquidated damages under the FLSA, but has been awarded wage and overtime damages pursuant to the NYLL because state law provided the greater relief” is entitled to FLSA liquidated damages “based on ‘the amount of actual damages that would have been awarded had the federal minimum wage rate applied.'” Kernes v. Glob. Structures, LLC, No. 15 Civ. 659 (CM) (DF), 2016 WL 880199, at *4 (S.D.N.Y. Feb. 9, 2016) (quoting Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777 (JGK) (JLC), 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012)).
The NYLL also authorizes liquidated damages. See Xochimitl, 2016 WL 4704917, at *15. Effective November 24, 2009, “an employee was entitled to NYLL liquidated damages ‘unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.'” Id. (quoting NYLL § 198(1-a)). “Courts deem defendants' actions willful where they have defaulted, see e.g., Angamarca, 2012 WL 3578781, at *8, and, consequently, such defaulting defendants will have ‘[o]bviously . . . made no showing of ‘good faith.'” Xochimitl, 2016 WL 4704917, at *15 (quoting Guaman, 2016 WL 791230, at *7). Effective April 9, 2011, the liquidated damages award under the NYLL is 100% of the amount of unpaid wages. NYLL §§ 198(1-a), 663(1).
The Second Circuit precludes a plaintiff from recovering liquidated damages under both the FLSA and the NYLL. See Chowdhury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 60 (2d Cir. 2016); Mondragon, 2019 WL 2551536, at *11. A plaintiff should recover “under the statute that provides the greatest relief.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14 Civ. 7850 (VEC) (DF), 2016 WL 8650464, at *9 (S.D.N.Y. Nov. 7, 2016) (internal citation omitted). The NYLL allows for prejudgment interest in addition to liquidated damages, see NYLL § 198(1-a), but the FLSA does not. See Valdez v. H & S Rest. Operations, Inc., No. 14 Civ. 4701 (SLT) (MDG), 2016 WL 3079028, at *6 (E.D.N.Y. Mar. 29, 2016), adopted by 2016 WL 3087053 (E.D.N.Y. May 27, 2016). The NYLL therefore provides greater relief. See Mondragon, 2019 WL 2551536, at *11.
Having defaulted, the Defaulting Defendants have not carried their burden of demonstrating good faith under the NYLL, see Mondragon, 2019 WL 2551536, at *11, and therefore, Suriel is entitled to liquidated damages equivalent to 100% of her unpaid wages set forth above. See Schalaudek, 2017 WL 729544, at *10 (awarding liquidated damages of 100% of unpaid wages where defendants had defaulted).
Liquidated damages are calculated as the sum of the Straight Time Wages and Overtime Wages awarded to Suriel. See NYLL § 198(1-a). The Court respectfully recommends that Suriel be awarded liquidated damages in the amount below:
Straight Time Wages Awarded
Overtime Wages Awarded
Liquidated Damages
$58,297.00
$30,450.00
$88,747.00
4. Statutory damages
Suriel alleges that she did not receive the wage notices and or statements as required by NYLL §§ 195(1) and 195(3). (ECF No 1 ¶¶ 51, 64). Violations of Section 195(1) result in damages of $50 per workday, for a maximum of $5,000, which is reached after 100 days. NYLL § 198(1-b). Violations of Section 195(3) result in damages of $250 per workday, for a maximum of $5,000, which is reached after 20 days. NYLL § 198(1-d). The Defaulting Defendants failed to provide Suriel with the required written wage notices or statements for the duration of her employment, which lasted well over the period needed to reach the statutory maximum damages. Thus, the Court respectfully recommends awarding Suriel the maximum statutory damages of $5,000 for both claims, for a total of $10,000.
5. Pre-judgment interest
Suriel seeks an award of pre-judgment interest on her compensatory damages under the NYLL. (ECF No. 1 at 22; ECF No. 78-1 at 8). Although prejudgment 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.” Maldonado v. La Nueva Rampa, Inc., No. 10 Civ. 8195 (LLS) (JLC), 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012), adopted by, Order dated Aug. 9, 2012 (ECF No. 20).
Under New York law, interest is awarded at the rate of nine percent per year. N.Y.C.P.L.R. § 5004. For damages accruing “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. “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.” Maldonado, 2012 WL 1663941, at *11. The midpoint of the plaintiff's employment is often used as the date from which to calculate prejudgment interest in wage-and-hour cases, see Mondragon, 2019 WL 2551536, at *11, which is the approach that Suriel has proposed. (ECF No. 78-1 at 8).
As set forth above, I recommend that Suriel be awarded liquidated damages under the NYLL, and therefore, prejudgment interest is still appropriate. Suriel's employment lasted from October 26, 2017 to November 11, 2019-a total of 747 days-and the midpoint of her employment was November 3, 2018 (the 374th day after October 26, 2017). (See ECF No. 78-1 at 8). Accordingly, I recommend an award of pre-judgment interest calculated from November 3, 2018 through August 9, 2021, the date Suriel filed her Damages Submission, see Reyes v. Cafe Cousina, 2019 WL 5722475, at *13 (using date of plaintiff's damages submission as the end point for calculating pre-judgment interest), in the amount below:
Principal
Interest Calculation
Interest Amount
$22,126.63
The principal amount on which pre-judgment interest can be awarded is the sum of the unpaid Straight Time Wages and Overtime Wages. See Reyes v. Cafe Cousina, 2019 WL 5722475, at *13.
The period from November 3, 2018 through August 9, 2021 is 1011 days, or 2.77 years (1011/365).
6. Post-Judgment interest
Suriel also seeks post-judgment interest. (ECF No. 1 at 22). The applicable federal statute, 28 U.S.C. § 1961, provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . . calculated from the date of entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding . . . the date of the judgment.” 28 U.S.C. § 1961. The Second Circuit has explained that an award of post-judgment interest is mandatory. See Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008); see Xochimitl, 2016 WL 4704917, at *19 (awarding post-judgment interest in employment action under FLSA and NYLL). Given the mandatory nature of post-judgment interest, I respectfully recommend that Suriel be awarded post-judgment interest in an amount consistent with 28 U.S.C. § 1961.
E. Attorneys' Fees
Both the FLSA and the NYLL permit a successful plaintiff to recover reasonable attorneys' fees. 29 U.S.C. § 216(b); NYLL §§ 198, 663. “Whether an attorneys' fee award is reasonable is within the discretion of the court.” De Jesus v. Sea Crest Diner-Rest., No. 17 Civ. 275 (ADS)(SIL), 2018 WL 3742778, at *11 (E.D.N.Y. May 7, 2018) (citing De Jesus Galindo v. BLL Rest. Corp., No. 15 Civ. 5885 (HBP), 2018 WL 1684412, at *3 (S.D.N.Y. Apr. 6, 2018). “A one-third contingency fee is a commonly accepted fee in this Circuit.” Id. (citation omitted) (recommending attorneys fee award “in the amount of one-third of [the] Plaintiff's recovery” pursuant to contingency agreement following default judgment in FLSA action), adopted by, 2018 WL 6418893 (E.D.N.Y. Dec. 6, 2018).
Here, Suriel attests that she agreed to pay her attorneys a contingency fee equal to one-third of her recovery, and she asks the Court “to grant such an award.” (ECF No. 78-1 ¶ 16). The Court concludes that this is reasonable, and respectfully recommends awarding attorneys' fees in the amount of one-third of her recovery, which amounts to $62,498.00.
$187,494.00/3.
F. Costs
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); Imbeault v. Rick's Cabaret Int'l Inc., No. 08 Civ. 5458, 2009 WL 2482134 at *1 (S.D.N.Y. Aug. 13, 2009) (“Both the FLSA and the NYLL provide that a prevailing plaintiff may seek an award of reasonable attorneys' fees and costs, to be paid by the defendants.”). 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) (internal citation omitted). “[O]nly those costs that are tied to ‘identifiable, out-of-pocket disbursements' are recoverable.” Valdez v. H & S Rest. Operations, Inc., No. 14 Civ. 4701 (SLT) (MDG), 2016 WL 3079028, at *9 (E.D.N.Y. Mar. 29, 2016) (quoting Castellanos v. Mid Bronx Cmty. Hous. Mgmt. Corp., 2014 WL 2624759, at *8 (S.D.N.Y. 2014)) (awarding costs to a plaintiff seeking recovery of the “court filing fee, service of process fees, postage and on-line research”), adopted by, 2016 WL 3087053 (E.D.N.Y. May 27, 2016).
Suriel seeks an award of costs (ECF No. 1 at 21), and has submitted Grae's billing records, which reflect $448.20 in “expenses” that include “$404.00” for the Court's filing fee and $44.20 for postage. (ECF No. 78-12). Suriel did not, however, “submit invoices or receipts to substantiate the claimed amount[s].” Khotovitskaya v. Shimunov, No. 18 Civ. 7303 (NGG) (CLP), 2021 WL 868781, at *2 (E.D.N.Y. Mar. 9, 2021) (denying costs where party failed to submit documentation substantiating the amounts reflected in attorney billing records); see Sanchez, 2018 WL 4502008, at *17 (noting that adequate substantiation is required for an award of costs); Raymond James & Assocs., Inc. v. Vanguard Funding, LLC, No. 17 Civ. 3327 (VSB) (SDA), 2018 WL 8758763, at *6 (S.D.N.Y. Apr. 16, 2018) (awarding documented expenses for, inter alia, filing and service of process fees); J&J Sports Prods., Inc. v. Fantasy Bar & Rest. Corp., No. 17 Civ. 5355 (JGK) (DF), 2018 WL 5018065, at *7 (S.D.N.Y. Sept. 20, 2018) (recommending denial of request for service fees that lacked documentary support). The Court may, however, take judicial notice of the filing fees reflected on the docket as a support for an award of those costs. See Whitehead, 2019 WL 384446, at *6 (taking judicial notice of $400 filing fee and awarding costs in that amount); BWP Media USA, Inc. v. Uropa Media, Inc., No. 13 Civ. 7871 (JSR) (JCF), 2014 WL 2011775, at *4 (S.D.N.Y. May 16, 2014) (same). Accordingly, the Court recommends that Suriel be awarded costs in the amount of $400.00.
The Court's filing fee was $400.00, not $404.00 as reflected in Grae's billing records. (See ECF No. 1).
V. CONCLUSION
For the reasons set forth above, I respectfully recommend that:
(1) Suriel be awarded $187,494.00 in damages against the Defaulting Defendants, comprised on the following: (i) $58,297.00 in unpaid minimum wages; (ii) $30,450.00 in unpaid overtime wages; (iii) $88,747.00 in liquidated damages; and (iv) $10,000.00 in statutory damages;
(2) Suriel be awarded $22,126.63 in pre-judgment interest;
(3) Suriel be awarded post-judgment interest pursuant to 28 U.S.C. § 1961;
(4) Suriel be awarded attorneys' fees in the amount of $62,498.00 and costs in the amount of $400.00;
(5) Suriel's claims against Acosta be DISMISSED without prejudice pursuant to Federal Rules of Civil Procedure 4(m) and 41(b); and
(6) The Opt-in Plaintiffs' requests for damages, attorneys' fees, and costs be denied, and that the Opt-in Plaintiffs be DISMISSED without prejudice.
Suriel is directed to serve a copy of this Report and Recommendation on the Defaulting Defendants and to 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 Broderick.
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).