Opinion
18-CV-06439 (ALC)(SN)
01-31-2023
SHIQIANG GAO and JIANMIN PENG, Plaintiffs, v. UMI SUSHI, et al., Defendants.
REPORT AND RECOMMENDATION
Sarah Netburn, United States Magistrate Judge
TO THE HONORABLE ANDREW L. CARTER, JR.:
Shiqiang Gao and Jianmin Peng (the “Plaintiffs”) sued Umi Sushi, Inc. (d/b/a Umi Sushi) and Luo Kim Zheng (the “Defendants”) after they allegedly failed to pay Plaintiffs minimum and overtime wages, as required by the Fail' Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). Plaintiffs also allege violations of various other NYLL provisions and the breach of an implied contract between themselves and Defendants. The Honorable Andrew L. Carter, Jr. entered a default against the Defendants and ordered an inquest on damages. Plaintiffs filed Proposed Findings of Facts and Conclusions of Law and a motion for attorneys' fees and costs. Defendants are liable for violating the minimum and overtime wage provisions of the FLSA and NYLL, failing to provide spread-of-hours pay, and failing to provide a meal break. I recommend Plaintiffs be awarded a total of $206,103.76 plus all applicable interest.
BACKGROUND
Shiqiang Gao filed a complaint on July 17, 2018, seeking monetaiy damages arising out of Defendants' FLSA and NYLL violations. ECF No. 1 (“Compl.”). Plaintiff Jianmin Peng joined this action as an opt-in Plaintiff on July 8, 2019. See ECF No. 46 & 47. Gao was employed as a delivery person by Defendants from November 11, 2017, until April 12, 2018. Compl. ¶ 7. Peng was employed as a delivery person from September 23, 2014, to September 20, 2017, and again from June 10, 2019, to June 28, 2019. Declaration of John Troy, dated July 14, 2022 (“Troy Decl.”), at ECF No. 114, Ex. 7 at ¶ 34:11-16, 57:18-58:4. Defendants willfully and knowingly failed to pay Plaintiffs in accordance with New York and federal minimum wage laws, denied them overtime compensation, spread-of-hours pay, a meal break, and failed to provide Plaintiffs with required notice and wage statements. Compl. ¶¶ 37-44.
Plaintiffs seek damages for unpaid minimum wage and overtime compensation and out-of-pocket vehicle costs. Compl. ¶ 23. They also request damages for failure to provide an accurate paystub, spread-of-hours pay and other violations under NYLL as applicable. Id. at 2425. Plaintiffs claim they are entitled to liquidated damages, pre-judgment and post-judgment interest, reimbursement for expenses incurred in this action, and attorneys' fees and costs. Id. Plaintiffs filed affidavits of service on Defendants on August 1, 2018. ECF Nos. 6 & 9. Defendants filed an answer to Plaintiff's complaint on August 24, 2018, and attorney Michael Aaron Brand entered an appearance on behalf of Defendants. ECF Nos. 13 & 17.
Brand, however, withdrew as Defendants' attorney on November 20, 2020, after they terminated his services and stopped cooperating with his office. See ECF Nos. 81, 82, & 90. Defendants were ordered to indicate by January 4, 2021, whether Defendants retained new counsel or, in Zheng's case, whether he elected to proceed pro se. ECF No. 90. In this same order, the Court warned that failure to notify the Court or retain an attorney may result in entry of a default judgment against them. Id. Defendants never notified the Court of how they wished to proceed and so Plaintiffs moved to strike Defendants' answer. Judge Carter granted the motion to strike Defendants' answer and the Clerk entered a default judgment on June 15, 2022. ECF Nos. 109, 110. Judge Carter subsequently referred this matter to me for an inquest on damages. Plaintiffs filed their proposed findings of fact and conclusion of law and a motion for attorneys' fees and costs. ECF No. 113-117. To date, Defendants have failed to respond to Plaintiffs' proposed findings of fact or notify the Court how they wish to proceed.
DISCUSSION
I. Legal Standard
The Court of Appeals set forth the procedural rules applicable to the entry of a default judgment in City of New York v. Mickalis Pawn Shop, LLC:
“Federal Rule of Civil Procedure 55 is the basic procedure to be followed when there is a default in the course of litigation.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004). Rule 55 provides a “two-step process” for the entry ofjudgment against a party who fails to defend: first, the entry of a default, and second, the entry of a default judgment. New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). The first step, entry of a default, formalizes a judicial recognition that a defendant has, through its failure to defend the action, admitted liability to the plaintiff.... The second step, entry of a default judgment, converts the defendant's admission of liability into a final judgment that terminates the litigation and awards the plaintiff any relief to which the court decides it is entitled, to the extent permitted by Rule 54(c).645 F.3d 114, 128 (2d Cir. 2011).
Where default has been entered against a defendant, courts accept as true all the well-pleaded facts alleged in the complaint, except those concerning the amount of damages. See In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. 2000).
In an inquest for damages where the plaintiff has sufficiently pleaded a claim on which relief can be granted, the only remaining issue is to determine the amount of damages owed. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must provide adequate support for the requested relief. Id.; see also Malletier v. Carducci Leather Fashions, Inc., 648 F.Supp.2d. 501, 503 (S.D.N.Y. 2009) (“[A] plaintiff seeking to recover damages against a defaulting defendant must prove its claim th[r]ough the submission of evidence ....”). A court may determine the amount a plaintiff is entitled to recover without a hearing, so long as: (1) the court determines the proper rule for calculating damages, and (2) the evidence submitted by the plaintiff establishes “with reasonable certainty” the basis for the damages. Id.
II. Liability under FLSA and NYLL
To plead a FLSA claim, a plaintiff must show, “(1) the defendant is an enterprise participating in commerce or the production of goods for the purpose of commerce; (2) the plaintiff is an ‘employee' within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA.” Pelgrift v. 335 W. 41st Tavern Inc., No. 14-cv-8934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017) (quoting Jiaren Wei v. Lingtou Zhengs Corp., No. 13-cv-5164 (FB)(CLP), 2015 WL 739943, at *5 (E.D.N.Y. Feb. 20, 2005)).
An enterprise engaged in commerce is an enterprise that “has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and has an “annual gross volume of sales made or business done . . . not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)(i), (ii).
Plaintiffs' complaint states Defendants were engaged in interstate commerce, as a business that had gross sales over $500,000 per year and purchased and handled goods that moved outside of New York. Compl. ¶¶ 9-10. “Ordinarily, allegations detailing statutory definitions without providing additional facts may not be sufficient to infer a nexus to interstate commerce. In the context of default, however, the Court may accept these uncontested allegations as true and make reasonable inferences.” Singh v. Meadow Hill Mobile Inc., No. 20-cv-3853 (CS)(AEK), 2021 WL 3862665, at *4 (Aug. 29, 2021), rep. and rec. adopted, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021); see also Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (E.D.N.Y. 2015) (“[I]t is reasonable to infer that [a restaurant] requires a wide variety of materials to operate .... It is also reasonable to infer that some of these materials moved or were produced in interstate commerce.”). Given the forgoing, Plaintiffs have adequately claimed that Defendants were participating in commerce.
Plaintiffs properly claim they were employees of Defendants for the relevant time period. An employee is “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The burden on Plaintiffs to demonstrate their status as employees is low. Fermin, 93 F.Supp.3d at 32 (“Insofar as Plaintiffs' complaint alleges that Defendants employed Plaintiffs within this statutory meaning, it follows that for purposes of this default, they qualify as employees under the FLSA.”) (cleaned up). Plaintiffs, who were employed as delivery workers are not exempt from the FLSA's overtime requirement. See Fermin, 93 F.Supp.3d at 32. Therefore, Plaintiffs have adequately claimed they were employees of Defendants for the relevant period.
The definitions of employer and employee are almost identical under NYLL, except an employer is not required to meet a certain minimum in sales to be liable for a violation. See Pelgrift, 2017 WL 4712482, at *7; see also N.Y. Lab. Law §§ 651(5)-(6). Defendants are liable as employers under the FLSA and NYLL because the tests are not meaningfully different. Pelgrift, 2017 WL 4712482, at *7. According to the FLSA and NYLL, each Defendant is jointly and severally liable for any damages awarded to Plaintiffs. See Pineda v. Masonry Constr., Inc., 831 F.Supp.2d 666, 685-86 (S.D.N.Y. 2011).
Plaintiffs allege Defendants violated the FLSA and NYLL by failing to adhere to rules on minimum wage and overtime wage compensation. Compl. ¶¶ 73, 77, 83, 89, 90. They further allege Defendants violated the NYLL's spread-of-hours, meal period, notice and record keeping, and wage statement provisions. Id. at ¶ ¶ 97, 101, 106, 112. Because Plaintiffs properly allege an employer-employee relationship with Defendants under both the FLSA and NYLL, I consider Defendants' alleged violations of both statutes.
A. Minimum Wage
The Defendants violated the FLSA and NYLL's minimum wage provisions. An employer may not pay an employee less than the statutory minimum wage for each hour the employee worked in any week. 29 U.S.C. § 206(a); N.Y. Lab. Law § 652(1). New York has an additional minimum wage order applicable to the hospitality industry. See 12 N.Y.C.R.R. § 146-1.1(a) (“Every employer in the hospitality industry must pay to each employee . . . at least the minimum wage rates provided in this Part.”).
Employees bear the initial burden of proving they were not properly compensated for their work. de Los Santos v. Marte Constr., Inc., No. 18-cv-10748 (PAE)(KHP), 2020 WL 8549054, at *5 (Nov. 25, 2020), rep. and rec. adopted, 2020 WL 8549055 (S.D.N.Y. Dec. 17, 2020). “In the context of a default,” and where Plaintiffs “lack access to the employment records necessary to prove they were not properly compensated, Plaintiffs” may meet their burden of proof “by relying on recollection alone.” Id. (internal quotation marks and citation omitted).
1. Employer Size
Under New York law, the minimum wage rate is determined by the size of the employer. 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(a). Plaintiffs seek compensation at the minimum wage rate applicable to large employers in New York City. See Troy Decl., Ex. 11. Plaintiffs do not show the Defendants employed the minimum number of employees necessary to be considered a large employer, which is 11 or more employees. See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(a).
Where a plaintiff's complaint is silent as to the employer's size, district courts have taken varying approaches to determine the proper minimum wage rate to apply in a default judgment. One court determined plaintiffs would be awarded at the minimum wage rate of a large employer because of defendants' default. See Sanchez v. Jyp Foods Inc., No. 16-cv-4472 (JLC), 2018 WL 4502008, at *9 n.13 (S.D.N.Y. Sept. 20, 2018) (“[I]n light of defendants' default, the Court gives plaintiffs the benefit of the doubt and applies the rate [for large employers].”). Other courts in the district have declined to award plaintiffs the rate of large employers if they do not attest to the number of employees that worked for the defendant. See Anzurez v. La Unica Caridad Inc., No. 20-cv-3828 (JMF)(GWG), 2021 WL 2909521, at *4 (July 12, 2021) (finding plaintiff did not prove their employer employed 11 or more employees and therefore “must be compensated at the rate for small employers”), rep. and rec. adopted, 2021 WL 3173734 (S.D.N.Y. July 27, 2021).
The Court joins those who decline to award the rate of large employers absent evidentiary support. Plaintiffs do not to attest to any facts in the complaint regarding the number of employees at the Defendants' restaurant. Accordingly, the Court recommends Plaintiffs be compensated at the rate for small employers. See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(b).
The minimum wage for small employers in New York during Plaintiffs' employment was $8.00 in 2014, $8.75 in 2015, $9.00 in 2016, $10.50 in 2017, $12.00 in 2018, and $13.50 in 2019. The federal minimum wage for these same periods was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C). The Court will calculate damages using the New York wage rate because it is higher. See 29 U.S.C. § 218(a) (“No provision of this chapter . . . shall excuse noncompliance with . . . a minimum wage higher than the minimum wage established under this chapter ....”).
See 12 N.Y.C.R.R. § 146-1.2(a)(1)(i)(b); History of the Minimum Wage in New York State, https://dolny.gov/history-minimum-wage-new-york-state.
2. Regular Rate of Pay
Defendants are liable for violating the FLSA and NYLL minimum wage provisions for failure to pay Plaintiffs at a rate set by the federal and state statutory minimum wages. “If an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings, not including exclusions ....” N.Y.C.R.R. § 146-3.5(b). “To determine the regular rate of pay for restaurant employees, the court must divide the employee's total weekly earnings, not including exclusions from the regular rate, by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.” Anzurez, 2021 WL 2909521, at *3 (internal quotation marks and citation omitted).
Gao worked for Defendants from approximately November 11, 2017, to April 12, 2018. Compl. ¶ 45. From approximately November 11, 2017, to April 12, 2018, Gao was paid a flat compensation of $1,200 per month. ECF No. 113 at ¶ 28. He typically worked 61.33 hours each week during this period. Id. at ¶ 23. Plaintiffs allege that Gao was paid an hourly rate of $6.92 during this period. Id. at ¶ 72. As his presumptive regular rate of pay was less than the New York minimum wage, he is entitled to backpay for the first 40 hours worked during this period.
Peng worked for Defendants from approximately September 24, 2014, to September 20, 2017, and then again from June 10, 2019, to June 28, 2019. ECF No. 113 at ¶¶ 24-25. From approximately September 23, 2014, to October 31, 2014, Defendants paid Peng a fixed salary of $800 per month, and he typically worked 60.67 hours per week. Id. at ¶¶ 24 & 37. Plaintiffs allege Peng was paid an hourly rate of $4.62 during this time. Id. at ¶ 83. From approximately November 1, 2014, to December 31, 2016, Defendants paid Peng a fixed salary of $1,000 per month, and he typically worked 60.67 hours per week. Id. at ¶¶ 24 & 38. Plaintiffs allege Peng was paid an hourly rate of $5.77 during this time. Id. at ¶ 84. From approximately January 1, 2017, to September 20, 2017, Defendants paid Peng a fixed salary of $1,200 a month, and he typically worked 60.67 hours per week. Id. at ¶¶ 26 & 81. Plaintiffs allege Peng was paid an hourly rate of $6.92 during this time. Id. at ¶ 85. From approximately June 10, 2019, to June 28, 2019, Defendants paid Peng a fixed salary of $300 a week, and he typically worked 50.17 hours per week. Id. at ¶¶ 26 & 39. Plaintiffs allege Peng was paid an hourly rate of $5.98 during this time. Id. at ¶ 86. Accordingly, Peng is entitled backpay for unpaid minimum wages during his term of employment.
60.67 hours is the number reflected in Plaintiffs' damages calculations, which the Court adopts. ECF No. 114-11.
B. Overtime Compensation
Defendants violated the FLSA and NYLL overtime compensation requirements by failing to pay Plaintiffs overtime wages for hours worked in excess of 40 hours a week. Under both the FLSA and NYLL, employees must be paid an overtime premium for hours worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 146-1.4. Employees are entitled to be paid at a “rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1); see also 12 N.Y.C.R.R. § 146-1.4.
To state a claim for failure to pay overtime compensation, a plaintiff “must sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.” Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). An employer who violates 29 U.S.C. § 207 “shall be liable to the employee or employees affected in the amount of their unpaid . . . overtime compensation . . . and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b); see also N.Y. Lab. Law § 663(1).
Plaintiffs sufficiently pleaded that they “regularly worked in excess of 40 hours per week. See ECF No. 113 at ¶ 24-26; Compl. ¶ 46. Gao typically worked 61.33 hours per week from November 11, 2017, to April 12, 2018. Compl. ¶ 46. Peng typically worked 60.67 hours per week from September 23, 2014, to September 20, 2017, and 50.17 hours per week from June 10, 2019, to June 28, 2019. ECF No. 113 at ¶¶ 24-26.
Plaintiffs were not compensated for the additional overtime hours they worked and were paid only fixed salaries. ECF No. 113 at ¶ 41; Compl. ¶ 57. Because Plaintiffs properly claim they typically worked in excess of 40 hours per week without receiving overtime compensation, the Defendants are liable for unpaid overtime wages as well as liquidated damages.
C. Spread-of-Hours Pay
Defendants are liable for unpaid spread-of-hours pay under N.Y.C.R.R. § 146-1.6. Spread-of-hours refers to the “length of the interval between the beginning and end of an employee's workday.” Id. On each workday that the spread-of-hours is greater than ten, an employee is entitled to one additional hour of pay at the minimum hourly rate. Id. The spread-of-hours regulation applies to employers that are “restaurants.” Id. A restaurant is “any eating or drinking place that prepares and offers food or beverage for human consumption ....” 12 N.Y.C.R.R. § 146-3.1(b). Umi Sushi, where Plaintiffs worked, is a sushi restaurant in Manhattan. Compl. ¶ 30. Accordingly, the spread-of-hours regulation applies to Defendants.
Gao worked shifts exceeding ten hours a day from approximately November 11, 2017, to April 12, 2018. Compl. ¶ 46. He worked from approximately 12:00 p.m. to 11:00 p.m. (11 hours) on Tuesday, Wednesdays, Thursdays, and Fridays. Id. Thus, Gao sufficiently pleaded entitlement to spread-of-pay at the minimum wage for each of those days. From September 23, 2014, to September 20, 2017, Peng alternated between two schedules, working either from 10:30 a.m. to 9:30 p.m. (11 hours) or from 11:30 a.m. to 10:30 p.m. (11 hours) on Mondays through Fridays. ECF No. 113 at ¶ 24. During this period, he also worked from 5:00 p.m. to 10:30 p.m. (five hours and 30 minutes) every Saturday or Sunday. Id. Later, from June 10, 2019, to approximately, June 28, 2019, Peng worked from 11:30 a.m. to 9:30 p.m. (ten hours) every Monday through Friday. Thus, Peng sufficiently pled entitlement to spread-of-hours pay only for the 11-hour shifts he worked from September 23, 2014, until September 20, 2017.
D. Meal Period Requirement
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). A meal is “bona fide” when then employee is “completely relieved from duty for the purposes of eating regular meals.” 29 C.F.R. § 785.19(a). When a plaintiff does not receive any meal or rest breaks, their time worked will be compensated. 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 N.Y. Lab. Law § 162(2)-(4).
Both Plaintiffs allege that they never received a meal break although their shifts lasted more than six hours and either started between 1:00 p.m. and 6:00 a.m. or encompassed a period of time between 11:00 a.m. to 2:00 p.m. ECF No. 113 at ¶¶ 24 & 40; Compl. ¶¶ 46, 49, 50. Accordingly, all the time worked during these periods should be compensated.
E. Wage Statement, Notice, and Record Keeping Requirements
The Wage Theft Prevention Act requires employers to provide annual wage notices to employees hired after April 9, 2011, and to provide each employee with accurate wage statements each time wages are paid. See N.Y. Lab. Law §§ 195(1)(a), 195(3). Section 195(1) requires an employer to provide employees a notice at the time of hiring, containing, among other things, “the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; [and] allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances ....” N.Y. Lab. Law § 195(1)(a).
Section 195(3) requires that employers provide employees with certain wage statement information “with every payment of wages.” N.Y. Lab. Law § 195(3). An employer's failure to comply with either section of the law makes them liable for damages for each instance that the violations occurred or continued to occur. See N.Y. Lab. Law § 198(1-b) (stating that damages for wage notice violations under § 195(1) accumulate at a rate of $50 per day, but not to exceed $5,000); § 198(1-d) (stating that damages for wage statement violations under § 195(3) accumulate at a rate of $50 per day but may not exceed $5,000).
Plaintiffs sufficiently pleaded that the Defendants failed to comply with NYLL § 195(1)(a) and § 195(3). Compl. ¶¶ 107, 112. Plaintiffs nevertheless lack standing to maintain these claims. “Article III standing requires plaintiffs to show (1) an ‘injury in fact,' (2) a ‘causal connection' between that injury and the conduct at issue, and (3) a likelihood ‘that the injury will be redressed by a favorable decision.'” Maddox v. Bank of N.Y. Mellon Tr. Co., N.A., 19 F.4th 58, 62 (2d Cir. 2021) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). To demonstrate an injury in fact, a plaintiff “must show the invasion of a [1] legally protected interest that is [2] concrete and [3] particularized and [4] actual or imminent, not conjectural or hypothetical.” Id. (quoting Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016)). While a so-called “informational injury” (i.e., failure to receive required information) can give rise to standing, see TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2214 (2021), the plaintiff must allege “downstream consequences” from failing to receive that information that show an interest in using the information “beyond bringing [this] lawsuit,” Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022) (first quoting TransUnion, 141 S.Ct. at 2214, then Laufer v. Looper, 22 F.4th 871, 881 (10th Cir. 2022)).
Plaintiffs fail to allege an injury in fact sufficient to confer standing and have not demonstrated how their lack of notice resulted in an injury greater than Defendants' minimum wage, overtime, and spread-of-hours wage violations. Nor have Plaintiffs identified an informational injury with consequences beyond this lawsuit. Accordingly, Plaintiffs cannot recover under NYLL wage notice and statement provisions.
III. Breach of Implied Contract
Plaintiffs contend that Defendants breached an implied contract by not paying them for costs and expenses related to the Plaintiffs' use and maintenance of bicycles in the course of their employment. “To succeed on a claim for breach of implied-in-fact contract under New York law, a plaintiff must demonstrate (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages.” Tecocoatzi-Ortiz v. Just Salad LLC, No. 18-cv-7342 (JGK), 2022 WL 596831, at *16 (S.D.N.Y. Feb. 25, 2022). Plaintiffs did not address any of these requirements in their complaint or otherwise point to any evidence that supports the existence of an implied-in-fact contract. Accordingly, Plaintiffs cannot recover damages on their claim for breach of implied contract.
In an earlier decision, the Court granted summary judgment in favor of Defendants Ong and Zheng, finding that they were not Plaintiffs' “employers.” ECF No. 74. The Court granted Plaintiff an opportunity to support their claim for an implied breach of contract against these defendants and subsequently concluded that Plaintiffs did “not offer any facts tending to show that Ong and Zheng entered an implied contract with Plaintiffs.” ECF No. 77.
IV. Damages
Because I find that Plaintiffs have demonstrated that the Defendants are liable for the FLSA and NYLL violations, it is appropriate to award them damages as supported by the evidence submitted for this inquest. See Troy Decl., Ex. 11; Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (damages following default must be established by the plaintiff). Determining the appropriate amount of damages “involves two tasks: determining the proper rule for calculating damages on such a claim, and assessing plaintiff's evidence supporting the damages to be determined under this rule.” Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 291 (S.D.N.Y. 2016). A court need not hold an evidentiary hearing to determine damages but must take the necessary steps to establish damages with reasonable certainty. Id.
A. Backpay Under FLSA and NYLL
The FLSA and NYLL require an employer to pay at least the statutory set minimum wage for each hour an employee works in any workweek. 29 U.S.C. § 206(a); 12 N.Y.C.R.R. § 146-1.1(a). Plaintiffs sufficiently pleaded that Defendants violated the minimum wage and overtime provisions of both the FLSA and NYLL. But they are entitled to recovery under only one statute. See Hernandez v. Jrpac Inc., No. 14-cv-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016) (“Plaintiffs may not receive a double recovery of back wages under both the FLSA and NYLL.”) (cleaned up).
Under New York and federal law, a court has discretion to award damages under whichever statute offers the greatest amount of relief. Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498 (S.D.N.Y. 2017), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018); see also 29 U.S.C. § 218(a). Because New York's minimum wage exceeds the federal rate, Plaintiffs' damage calculations will be governed by NYLL provisions. See Hernandez, 2016 WL 3248493, at *31 (awarding plaintiffs damages under NYLL “because of the higher minimum” and acknowledging that those damages “will subsume their award under the FLSA”).
Both FLSA and NYLL require employers to pay their employees a premium (150 percent of the employee's regular rate of pay) for hours worked above 40 hours per week. See 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2.
1. Plaintiff Gao's Unpaid Minimum and Overtime Wages
Gao alleges he was paid a flat monthly rate of $1,200 during his term of employment. Plaintiffs suggests that this amounts to an hourly rate of $6.92, calculated by multiplying $1,200 by 12 (months) and dividing by 52 (weeks) and dividing again by 40 (hours), and a weekly rate of $276.92.
Gao worked 7.29 weeks in 2017, when the New York minimum wage was $10.50. Accordingly, in 2017, his weekly rate of pay for the first 40 hours should have been $420 but he was instead paid $276.92, resulting in a weekly short fall of $143.08. In addition, Gao should have been paid $15.75 for overtime hours. He worked 21.33 overtime hours each week, entitling him to an additional weekly pay of $335.95.
Thus, for 2017, Gao is entitled to ($143.08 x 7.29) + ($335.95 x 7.29) = $3,492.13.
Gao worked 14.57 weeks in 2018, when the New York minimum wage was $12. Accordingly, in 2018, his weekly rate of pay for the first 40 hours should have been $480 but he was instead paid $276.92, resulting in a weekly short fall of $203.08. In addition, Gao should have been paid $18 for overtime hours. He worked 21.33 overtime hours each week, entitling him to an additional weekly pay of $383.94.
Thus, for 2018, Gao is entitled to ($203.08 x 14.57) + ($383.94 x 14.57) = $8,552.88.
Gao's total unpaid wages are $12,045.01.
2. Plaintiff Peng's Unpaid Minimum and Overtime Wages
Peng is entitled to backpay for unpaid minimum wages from September 23, 2014, to September 20, 2017, and from June 10, 2019, to June 28, 2019.
Peng alleges he was paid a flat monthly rate of $800 when he worked from September 23-October 31, 2014. Plaintiffs suggest that this amounts to an hourly rate of $4.62, calculated by multiplying $800 by 12 (months) and dividing by 52 (weeks) and dividing again by 40 hours, and a weekly rate of $184.62.
Peng worked for 5.57 weeks from September 23-October 21, 2014, when the New York minimum wage was $8. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $320 but he was instead paid $184.62, resulting in a weekly short fall of $135.38. In addition, Peng should have been paid $12 for overtime hours. He worked 20.67 overtime hours each week, entitling him to an additional weekly pay of $248.04. Thus, his total owed compensation for this first period is ($135.38 x 5.57) + ($248.04 x 5.57) = $2,135.65.
Peng alleges he was paid a flat monthly rate of $1,000 when he worked from November 1, 2014-December 31, 2016. Plaintiffs suggest that this amounts to an hourly rate of $5.77, calculated by multiplying $1,000 by 12 (months) and dividing by 52 (weeks) and dividing again by 40 (hours), and a weekly rate of $230.77.
Peng worked 8.71 weeks from November 1-December 31, 2014, when the New York minimum wage was $8. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $320 but he was instead paid $230.77, resulting in a weekly short fall of $89.23. In addition, Peng should have been paid $12 for overtime hours. He worked 20.67 overtime hours each week, entitling him to an additional weekly pay of $248.04. Thus, his total owed compensation for this second period is ($89.23 x 8.71) + ($248.04 x 8.71) = $2,937.62.
Peng worked the full year in 2015. In 2015, the New York minimum wage increased to $8.75. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $350 but he was instead paid $230.77, resulting in a weekly short fall of $119.23. In addition, Peng should have been paid $13.13 for overtime hours. He worked 20.67 overtime hours each week, entitling him to an additional weekly pay of $271.29. Thus, his total owed compensation for 2015 is ($119.23 x 52.14) + ($271.29 x 52.14) = $20,361.71.
Peng worked the full year in 2016. In 2016, the New York minimum wage increased to $9. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $360 but he was instead paid $230.77, resulting in a weekly short fall of $129.23. In addition, Peng should have been paid $13.50 for overtime hours. He worked 20.67 overtime hours each week, entitling him to an additional weekly pay of $279.05. Thus, his total owed compensation for 2016 is ($129.23 x 52.14) + ($279.05 x 52.14) = $21,287.72.
Peng alleges he was paid a flat monthly rate of $1,200 when he worked from January 1-September 20, 2017. Plaintiffs suggest that this amounts to an hourly rate of $6.92, calculated by multiplying $1,200 by 12 (months) and dividing by 52 (weeks) and dividing again by 40 (hours), and a weekly rate of $276.92.
Peng worked 37.57 weeks from January 1-September 20, 2017, when the New York minimum wage was $10.50. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $420 but he was instead paid $276.92, resulting in a weekly short fall of $143.08. In addition, Peng should have been paid $15.75 for overtime hours. He worked 20.67 overtime hours each week, entitling him to an additional weekly pay of $325.55. Thus, his total owed compensation for 2017 is ($143.08 x 37.57) + ($325.55 x 37.57) = $17,606.43.
Peng alleges he was paid a flat weekly rate of $300 when he worked 2.71 weeks from June 10-28, 2019. Plaintiffs suggests that this amounts to an hourly rate of $7.50, calculated by dividing $300 by 40 (hours). During this period, New York's minimum wage rate was $13.50. Accordingly, during this period, his weekly rate of pay for the first 40 hours should have been $540, but he was instead paid $300, resulting in a weekly short fall of $240. In addition, Peng should have been paid $20.25 for overtime hours. He worked 10.17 overtime hours each week, entitling him to an additional weekly pay of $205.94. This his total owed compensation for 2019 is ($240 x 2.71) + ($205.94 x 2.71) = $1,208.50.
Peng's total unpaid wages are $65,537.63.
B. Spread-of-hours Pay
Under the NYLL, “on each day on which [an employee's] spread of hours exceeds 10, [the] employee shall receive one additional hour of pay at the basic minimum hourly rate.” 12 N.Y.C.R.R. § 146-1.6(a). The additional hour of pay is not included in the regular rate of pay when calculating overtime wages because it “is not a payment for time worked or work performed ....” 12 N.Y.C.R.R. § 146-1.6(c).
Gao established he worked shifts exceeding 10 hours for four days a week from November 11, 2017, to April 12, 2018. Accordingly, I recommend the Court award Gao spread-of-hours pay. In 2017 and 2018, the minimum hourly wage in New York was $10.50 and $12.00, respectively. Therefore, Gao should be awarded spread-of-hours pay for 2017 calculated as 4 (hours) multiplied by 7.29 (weeks) multiplied by $10.50, totaling $306.18. For 2018, Gao should be awarded spread-of-hours pay calculated as 4 (hours) multiplied by 14.57 (weeks) multiplied by $12, totaling $699.36. His total spread of hours pay is $1,005.54.
Peng established he worked shifts exceeding ten hours on five days a week from September 23, 2014, until September 20, 2017. Accordingly, I recommend the Court award Peng spread-of-hours pay.
In 2014, the New York minimum hourly wage was $8. Therefore, Peng should be awarded spread-of-hours pay for 2014 calculated as 5 (hours) multiplied by 14.28 (weeks) multiplied by $8, totaling $571.20.
In 2015, the New York minimum hourly wage was $8.75. Therefore, Peng should be awarded spread-of-hours pay for 2015 calculated as 5 (hours) multiplied by 52.14 (weeks) multiplied by $8.75, totaling $2,281.13.
In 2016, the New York minimum hourly wage was $9. Therefore, Peng should be awarded spread-of-hours pay for 2016 calculated as 5 (hours) multiplied by 52.14 (weeks) multiplied by $9, totaling $2,346.30.
In 2017, the New York minimum hourly wage was $10.50. Therefore, Peng should be awarded spread-of-hours pay for 2017 calculated as 5 (hours) multiplied by 37.57 (weeks) multiplied by $10.50, totaling $1,972.43.
Peng's total owed spread-of-hours pay is $7,171.05.
C. Liquidated Damages
Under the FLSA and NYLL, a plaintiff who is owed minimum or overtime wages may recover an “additional equal amount as liquidated damages.” 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(1-a). Liquidated damages may also include unlawfully retained tips as well as spread of hours pay. See Schalaudek v. Chateau 20th St. LLC, No. 16-cv-11 (WHP)(JLC), 2017 WL 729544, at *10 (S.D.N.Y. Feb. 24, 2017) (awarding liquidated damages in an amount equal to unlawfully retained tips); Wicaksono v. XYZ 48 Corp., No. 10-cv 3635 (LAK)(JCF), 2011 WL 2022644, at *7 (S.D.N.Y. May 2, 2011) (same); Reyes v. Cafe Cousina Rest. Inc., No. 18-cv-1873 (PAE)(DF), 2019 WL 5722475, at *6 (S.D.N.Y. Aug. 27, 2019) (awarding liquidated damages for unpaid spread-of-hours pay).
The court may reduce or deny liquidated damages if the employer can show that “the act or omission giving rise to [the FLSA] action was in good faith and that he had reasonable grounds for believing it was not a violation of [FLSA].” 29 U.S.C. § 260. Similarly, under the NYLL, an employee is entitled to liquidated damages equal to the amount of the overtime pay “unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.” N.Y. Lab. Law § 198(1-a).
To establish “good faith” under the FLSA, an employer must show that it took “active steps to ascertain the dictates of the FLSA and . . . comply with them.” Barfield v. New York City Health & Hosp. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)). “NYLL's willfulness standard does not appreciably differ from the FLSA's willfulness standard.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d. Cir. 2011) (internal quotation marks and citation omitted). Defendants defaulted, and therefore have made no showing of good faith to merit reducing or denying liquidated damages. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-cv-10234 (JGK)(JLC), 2016 WL 4704917, at *15 (Sept. 8, 2016), rep. and rec. adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) (“Courts deem defendants' actions willful where they have defaulted . . . consequently, such defaulting defendants will have obviously made no showing of good faith.”) (cleaned up).
Plaintiffs may not, however, recover “duplicative liquidated damages for the same course of conduct” under both the FLSA and NYLL. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018). Accordingly, the Court recommends awarding Plaintiffs liquidated damages under NYLL only. Gao is entitled to an additional $13,050.55, representing 100% of his unpaid wages and spread-of-hours pay. Peng is entitled to an additional $72,708.68, representing 100% of his unpaid wages and spread-of-hours pay.
D. Pre-Judgment and Post Judgment Interest
New York law provides for an award of pre-judgment interest in addition to liquidated damages. N.Y. Lab. Law § 198(1-a); Underwood v. TAFSC Hous. Dev. Fund Corp., No. 18-cv-6664 (JPO), 2019 WL 5485211, at *5 (S.D.N.Y. Oct. 25, 2019) (citing Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999)). Pre-judgment interest is available only on actual damages, not liquidated damages. Id.
Under New York law pre-judgment interest is calculated at nine percent per year. N.Y. Lab. Law § 198(1-a); N.Y. CPLR § 5004. “Where damages are incurred at various times interest shall be computed upon all of the damages from a single reasonable intermediate date.” Underwood, 2019 WL 5485211, at *5 (cleaned up). The “reasonable intermediate date” is often the midpoint of a plaintiff's employment. Id.
For the purposes of calculating pre-judgment interest for Plaintiff Gao's damages, the Court selects January 26, 2018 (the midpoint between November 11, 2017, and Plaintiffs' end date of April 12, 2018). For purposes of calculating pre-judgment interest for Plaintiff Peng's damages, the Court selects February 8, 2017 (the midpoint between September 23, 2014, and Plaintiffs' end date of June 28, 2019) as a reasonable intermediate date. Accordingly, I recommend that Plaintiff Gao and Plaintiff Peng be granted prejudgment interest on their total actual damages from January 26, 2018, and February 8, 2017, respectively, at the rate of nine percent per year, until the date of entry of judgment.
Plaintiffs also ask to be awarded post-judgment interest if applicable. Under 28 U.S.C. § 1961(a), “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court.” Under this statute, an award of post-judgment interest is mandatory in any civil case where monetary damages have been awarded. Fermin, 93 F.Supp.3d 19, 53; see, e.g. Begum v. Ariba Disc., Inc., No. 12-cv-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case).
I therefore recommend that Plaintiffs be awarded post-judgment interest, to be calculated at the federal rate from the date the Clerk of this Court enters judgment until the date the Defendants pay.
V. Attorney's Fees and Costs
A prevailing plaintiff, under both federal and state statutes, is entitled to reasonable attorney's fees and costs. 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(4). Courts determine the “presumptively reasonable fee” for an attorney's services by looking to “what a reasonable, paying client would be willing to pay,” “who wishes to pay the least amount necessary to litigate the case effectively.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 184 (2d Cir. 2008).
The “presumptively reasonable fee” is the product of a reasonable hourly rate and the reasonable number of hours required by the case. See Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011). Requested fees must be supported “by contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983).
Plaintiffs request a total of $90,638.50 in fees for 187.83 hours of attorney, translator, and clerk work. Declaration of John Troy, dated July 14, 2022 (“Troy Fee Decl.”), at ECF No. 116, at ¶ 69. Attorney John Troy is the principal of Troy Law, PLLC and has practiced law since 1989. Id. at ¶ 28. Since then, he has owned and worked at his own law firm and represented at least 207 wage-and-hour matters in the Southern District of New York. Id. at ¶ 31. He has written extensively on the Fair Labor Standards Act and New York Labor Law and taught a wage-and-hour seminar at the “Public Law Institute.” Id. at ¶ 34. He requests an hourly rate of $650 for 91.05 hours of work. Id. ¶ 69.
Managing Associate Aaron Schweitzer graduated from Fordham University School of Law in 2016 and was admitted to practice in New York in 2018. Id. at ¶ 39. Before joining Troy Law in April 2017, he advised worker cooperatives at Lincoln Square Legal Services and coordinated with multiple unions. Id. To date, he has litigated over 99 wage-and-hour actions in federal courts. Id. Mr. Schweitzer requests an hourly rate of $400 for 60.50 hours of work. Id. at ¶ 69.
Associate and Certified Translator Tiffany Troy graduated from Fordham University School of Law and was admitted to practice law in New York in 2021. Id. at ¶¶ 55-56. She is the attorney of record for 25 cases in the Southern District of New York and has been a NYS Unified Court System Mandarin Chinese interpreter since 2019. Id. at ¶¶ 57 & 61. Ms. Troy requests $200 per hour for 9.81 hours of work. Id. at ¶ 69.
Managing Clerk Preethi Kilaru graduated from Southern Methodist University Dedman School of Law with an LLM in 2017 and from Karnataka State Law University, CMR Law School in 2016. Id. at ¶ 51. Before joining Troy Law, she worked as a legal assistant and advisor in Bangalore, India. Id. Ms. Kilaru requests $200 for 26.47 hours of work. Id. at ¶ 69.
A. Reasonable Rates
In determining reasonable fees for a particular case, courts rely on reasonable hourly rates prevailing in the same district for similar services provided by attorneys with comparable skill and experience. See Arbor Hill, 522 F.3d at 184; Sub-Zero, Inc. v. Sub Zero NY Refrigeration & Appliances Servs., Inc., No. 13-cv-02548 (KMW)(JLC), 2014 WL 1303434, at *8 (S.D.N.Y. Apr. 1, 2014) (“It is the fee movant's burden to establish the prevailing market rate.”).
“Courts in this District have recently determined that a reasonable rate for senior attorneys handling wage-and-hour cases, in this market, typically ranges from $300 to $400 per hour.” Wan v. YWL USA Inc., No. 18-cv-10334 (CS), 2021 WL 1905036, at *5 (S.D.N.Y. May 12, 2021) (cleaned up). But see, e.g., Ashkinazi v. Sapir, No. 02-cv-0002 (RCC)(MHD), 2005 WL 1123732, at *3 (S.D.N.Y. May 10, 2005) (awarding $425 per hour to a partner in a small firm specializing in employment law, with 26 years of experience). Higher rates may, however, be awarded where they are “unopposed and awarded in the context of a default judgment.” Wan, 2021 WL 1905036 at *6.
No court, however, has awarded Troy the $600 hourly rate he seeks here and only a few have allowed Troy to recover attorneys' fees based on a $550 hourly rate. See Zhang v. Chongqing Liuyishou Gourmet N.J. Inc., No. 18-cv-10359 (CCC), 2019 WL 6318341, at *4 (D.N.J. Nov. 26, 2019) (awarding Troy $550 per hour); Hu v. 226 Wild Ginger Inc., No. 17-cv-10161, 2020 WL 6324090, at *8 (S.D.N.Y. Oct. 7, 2020) (without citing any cases, awarding $550 per hour for John Troy, $350 per hour for Schweitzer, $200 per hour for Kilaru, and $150 per hour for Tiffany Troy in a default judgment), rep. and rec. adopted, 2020 WL 6324088 (S.D.N.Y. Oct. 27, 2020). “By contrast, courts that have thoroughly scrutinized Troy Law's requests for fees have awarded lower rates.” Wan 2021 WL 1905036, at *6; see Yuajian Lin v. La Vie En Schezuan Rest. Corp, No. 15-cv-9507 (DF), 2020 WL 1819941, at *3-6 (S.D.N.Y. Apr. 9, 2020) (collecting cases); Singh v. A & A Market Plaza, Inc., No. 15-cv-7396 (AKT), 2019 WL 4861882, at *9 (E.D.N.Y. Sept. 30, 2019) (reducing rate of $450/hour requested by Troy to $375/hour); Suarez Castaneda v. F&R Cleaning Servs. Corp., No. 17-cv-7603 (SJ) (PK), 2019 WL 5694118, at *15 (E.D.N.Y. Mar. 15, 2019) (recommending that Troy be awarded a reduced rate of $375/hour); Zhong Fa Qin v. Sensation Neo Shanghai Cuisine, Inc., No. 15-cv-6399 (KAM), 2018 WL 4853041, at *3 (E.D.N.Y. Oct. 4, 2018) (adopting report and recommendation and modifying on other grounds) (awarding Troy $375/hour). “This Court agrees that an hourly rate in the range of $300 to $400 is generally an appropriate rate for an attorney with a similar level of experience to Troy, engaged in FLSA and NYLL litigation in this Court.” Lin, 2020 WL 1819941, at *4. I recommend that his hourly rate be reduced to $375.
An appropriate associate rate depends upon their level of experience. Thor 725 8th Ave. LLC v. Goonetilleke, No. 14-cv-04968 (PAE), 2015 WL 8784211, at *11 (S.D.N.Y. Dec. 15, 2015); see Rosendo v. Everbrighten Inc., No. 13-cv-7256 (JGK)(FM), 2015 WL 1600057, at *9 (Apr. 7, 2015), rep. and rec. adopted, 2015 WL 4557147 (S.D.N.Y. July 28, 2015) (finding that the reasonable hourly rate for a senior attorney with ten years of experience is $300, and for an associate with three years of experience is $225); Hernandez, 2017 WL 6311868, at *2 (finding that a reasonable hourly rate for associates with three to four years of experience is $250).
The requested hourly rates for Mr. Schweitzer, Ms. Troy, Ms. Kilaru are unreasonable, and the Court joins other courts in recommending their fees be reduced. See Garcia v. Francis Gen. Constr. Inc., No. 20-cv-4323 (JPC), 2022 WL 2698434, at *8 (S.D.N.Y. July 12, 2022) (reducing Mr. Schweitzer's and Ms. Troy's hourly rate to $150 hourly and Ms. Kilaru's to $70); Lin, 2020 WL 1819941, at *5-6 (S.D.N.Y. Apr. 9, 2020) (identifying $100-$150 as a reasonable hourly rate for Aaron Schweitzer and $70 as a reasonable hourly rate for Preethi Kilaru); Shanfa Li v. Chinatown Take-Out Inc., No. 16-cv-7787 (JCM), 2019 WL 3715086, at *7 (S.D.N.Y. Aug. 7, 2019), aff'd, 812 Fed.Appx. 49 (2d Cir. 2020) (reducing Aaron Schweitzer's hourly rate from $450 to $150). As Mr. Schweitzer has less than five years of experience as a lawyer, I recommend his hourly rate be reduced to $250. In line with other courts and her year and a half of legal experience, I recommend Ms. Troy's hourly rate be reduced to $150. Given Ms. Kilaru's experience, I recommend her hourly rate be reduced to $100.
B. Reasonable Hours
Counsel seeks fees for 187.83 hours. Specifically, Plaintiffs' time records reflect that Mr. Troy performed 91.05 hours of work; Mr. Schweitzer performed 60.50 hours of work; Ms. Troy performed 9.81 hours of work; and Ms. Kilaru performed 26.47 hours of work. Troy Fee Decl., ¶ 69. “As the most experienced attorney with the highest billable rate, John Troy should not have been the one to perform the majority of the work in this matter.” Meadow Hill Mobile Inc., 2021 WL 3862665, at *17. The Court has review counsel's billing records and finds evidence of substantial overbilling. See ECF 116-1. For example, Mr. Troy seeks nearly 20 hours to draft and prepare a boiler-plate single-Plaintiff complaint. This work includes, allegedly, nearly three and a half hours of internet research, including on Yelp, Grubhub, and FaceBook; 1.3 hours of “Research: Lexis Nexis/Legal/Others”; and 1.6 hours to draft and revise the damages chart for Gao. Mr. Troy - the senior lawyer at his firm - also billed 4.5 hours to file with the Court the complaint and related documents, and 1.0 hours to review the judges' individual practices. Later, on one day, Mr. Troy billed 7.5 hours to draft Gao's initial disclosures and discovery demands. When Plaintiff Peng joined the case, Mr. Troy allegedly spent 2.5 hours drafting a damages calculation on Friday, July 5, 2019, even though Mr. Schweitzer already billed 1.5 hours to draft damages calculations on July 1, 2019. Id. Setting aside whether it is credible that a managing partner was the actual drafter, filer, or researcher of these documents, no client would reasonably pay his rate for drafting materials related to a boilerplate wage-and-hour complaint-a rate that is certainly not “the least amount necessary to litigate the case effectively.” Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 184. More alarmingly, Mr. Troy seeks 2.25 hours for the initial pre-trial conference scheduled on September 25, 2018, despite the record indicating this conference lasted only 30 minutes. This irregularity raises concerns regarding the overall accuracy of counsel's records.
Plaintiffs also seek $53.35 for travel to and parking for this conference, suggesting that much of the time Mr. Troy billed at a full rate was for travel. Even assuming it took Mr. Troy 1.75 hours to travel to and from the conference, a reasonable time entry at his full rate would be .5 hours for the conference + .875 hours (or half the travel time).
Mr. Schweitzer first appears in the billing invoices on August 26, 2018. He alleges that he billed 2.1 hours to review the Defendants' (stock) answer. Other entries, however, appear more reasonable.
Ms. Troy's work is primarily as a paralegal. Her billing entries appear inflated. For example, she bills 1.3 hours to “Create Binder, Set Up/Key in Database,” .5 hours to “Set Up the Text Message, WeChat & Line” for Gao, and .5 hours to send a “follow up text.” Ms. Kilaru's entries are similar, also billing .5 hours to “Set Up the Text Message, WeChat & Line” for Peng, and 3.1 hours to review the proofs of service for accuracy.
Given the errors and unreasonable entries in the billing record, the Court has reservations about awarding attorneys' fees. See, e.g., Maria, et al. v. Rouge Tomate Chelsea, LLC, et al., No. 18-cv-09826 (VSB)(GWG), WL 6049893, at *8 (Oct. 14, 2020). Because the Defendants did not contest Plaintiffs' submission and because of the irregularities above, I recommend that the Court reduce Mr. Troy's hours by 50% and the remaining hours by 20%. Accordingly, Mr. Troy should be awarded fees for 45.53 hours at $375/hour, Mr. Schweitzer for 48.40 hours at $250/hour, Ms. Troy for 7.85 hours at $150/hour, and Ms. Kilaru for 21.18 hours at $100/hour, for a total attorneys' fees award of $32,466.68
C. Costs and Remedies
Plaintiffs seek $2,118.62 in costs for filing and service fees, translation services, mail and printing, and deposition transcripts, and parking. ECF No. 16, Ex. 1. The Court finds the filing and service fees to be reasonable and comparable to other amounts awarded upon default judgment. See Romita v. Anchor Tank Lines Corp., No. 09-cv-09997 (DLC), 2011 WL 1641981, at *2 (S.D.N.Y. Apr. 29, 2011) (awarding $504 in court costs for filing and process server fees); Int'l Ass'n of Heat & Frost Insulators & Asbestos Workers Loc. Union No. 12A v. Trade Winds Envtl., No. 09-cv-01771 (RJH)(JLC), 2010 WL 8020302, at *6 (S.D.N.Y. Dec. 23, 2010) (awarding $701.75 in court costs for filing and process server fees). Further, the Court finds the fees related to translation services, printing, parking, and deposition transcripts to be “reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989); see Meadow Hill Mobile Inc., 2021 WL 3862665, at *4 (awarding printing costs); Perez-Luna v. Ageha Japanese Fusion, Inc., No. 16-cv-6040 (AT)(BCM), 2018 WL 8996336, at *1 (S.D.N.Y. Sept. 28, 2018) awarding travel, transcript, and interpreter costs). I recommend Plaintiffs' request be granted.
CONCLUSION
I recommend that the Court find Defendants liable for $206,103.76 plus applicable interest, as follows:
(1) $13,050.55 in back pay and spread-of-hours damages to Plaintiff Gao, plus nine percent prejudgment simple interest, calculated from January 26, 2018, to the date of judgment;
(2) $72,708.68 in back pay and spread-of-hours damages to Plaintiff Peng, plus nine percent prejudgment simple interest, calculated from February 8, 2017, to the date of judgment
(3) $13,050.55 in liquidated damages to Plaintiff Gao;
(4) $72,708.68 in liquidated damages to Plaintiff Peng;
(5) $32,466.68 in attorneys' fees; and
(6) $2,118.62 in costs.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Andrew L. Carter,
Jr. at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).