Opinion
22 Civ. 03131 (CS)(JCM)
08-09-2023
FRANCISCO ZAMBRANO & JAMIE HUAYLLASACA, Plaintiffs, v. JERMYN CONTRACTING CORP., GOLIATH CONSTRUCTION, INC., MEADOWBROOK BUILDERS, INC., MEADOWBROOK BUILDERS AND REMODELING CORP., PETER GLASS in his individual Capacity and as Officer of JERMYN CONTRACTING CORP., as Officer of GOLIATH CONSTRUCTION, INC. as Officer of MEADOWBROOK BUILDERS, INC. and as Officer of MEADOWBROOK BUILDERS AND REMODELING CORP., Defendants.
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY United States Magistrate Judge
To the Honorable Cathy Seibel, United States District Judge:
On July 29, 2021, Plaintiff Francisco Zambrano (“Zambrano”) and Plaintiff Jamie Huayllasaca (“Huayllasaca”) (collectively, “Plaintiffs”) commenced this action against Jermyn Contracting Corp. (“Jermyn”), Goliath Construction, Inc. (“Goliath”), Meadowbrook Builders Inc. (“Meadowbrook”), Meadowbrook Builders and Remodeling Corp., (“Meadowbrook Builders”), and Peter Glass (“Glass”) (collectively, “Defendants”), seeking unpaid overtime wages, liquidated damages, statutory damages for wage and notice statement violations, and attorney's fees and costs pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206 et seq., New York Labor Law (“NYLL”), §§ 650 et seq., and New York Codes, Rules, and Regulations (“NYCRR”) Title 12 § 142-2.2. (See generally Docket No. 1) (“Complaint”). Defendants were served. (Docket Nos. 13-17). However, they failed to timely answer, move, or otherwise respond to the Complaint. On March 7, 2023, the Honorable Cathy Seibel granted a default judgment against all parties and, on March 8, 2023, referred the matter to the undersigned for an inquest on damages. (March 7, 2023 Minute Entry; Docket No. 39).
On March 9, 2023, the Court issued a scheduling order directing the parties to appear on March 23, 2023, and directing Plaintiffs to serve a copy of the scheduling order on Defendants. (Docket No. 40). On March 20, 2023, Plaintiffs moved to adjourn the conference and to hold the conference telephonically, (Docket No. 41), which the Court granted the same day, (Docket No. 42). The Court held an inquest hearing on March 27, 2023. Defendants failed to appear. Furthermore, Defendants have failed to file an opposition to the instant motion, nor have they contacted the court.
I. FINDINGS OF FACT
Jermyn is a corporation organized and existing under Pennsylvania law and is headquartered at 574 North Washington Avenue, Jermyn, Pennsylvania 18433. (Complaint ¶ 11). Goliath, Meadowbrook, and Meadowbrook Builders are New York corporations and are headquartered in Westchester County, New York. (Id. ¶¶ 14, 18, 24). Both Goliath and Meadowbrook have a New York State Department of State Process Server address listed as “Outside GC, LLC,” 51 Cypress Lane, Briarcliff Manor, New York, 10510. (Id. ¶¶ 15, 20). Meadowbrook Builders has a New York State Department of State Process Server address listed as “Meadowbrook Builders, Inc.,” 12B-2 West Main Street, Elmsford, NY 10523. (Id. ¶ 23).
Glass is an officer, as well as the President, Owner, and Founder of all Defendants. (Id. ¶¶ 32-35, 54). The Defendants are companies engaging in construction-related work and specifically, in the design, building, and renovation of luxury homes. (Id. ¶¶ 53, 55). The employees of Defendants are engaged in interstate commerce, as Defendants' business operations cross state lines between Pennsylvania, New Jersey, and New York. (Id. ¶¶ 45-46). The annual volume of business for each Defendant exceeds $500,000.00. (Id. ¶¶ 28-31).
Zambrano worked for Defendants from May 2018 to March 2020 as a painter. (Id. ¶ 59; Docket No. 36-2 at 2-4 ¶¶ 3-4 (“Zambrano Decl.”)). His primary language is Spanish. (Zambrano Decl. ¶ 2). Zambrano's duties included “repairing walls, spackling, sanding, and painting.” (Id. ¶¶ 5-6). Zambrano worked under the direction of Glass for the duration of his employment. (Id. ¶ 3). Zambrano worked Monday through Saturday and occasionally on Sundays (when asked to by Glass). (Id. ¶ 8). He worked approximately sixty hours per week and earned $24.00 per hour in compensation, even when he worked more than forty hours in a given week. (Id. ¶¶ 7, 10). Zambrano received a portion of his pay via check and the remainder in cash. (Id. ¶ 12). He was paid directly by Glass. (Id. ¶ 13). Zambrano was neither provided with wage statements, nor was he provided with written notices (either in English or Spanish) when he was hired. (Id. ¶¶ 14-15).
Huayllasaca worked for Defendants (under the direction of Glass) from February 2011 through September 2019. (Docket No. 36-2 at 5-7 ¶ 3 (“Huayllasaca Decl.”)). His primary language is Spanish. (Id. ¶ 2). Huayllasaca worked as a contractor/wood worker and his responsibilities included cutting wood, installing plywood, framing houses, sanding, hammering, and nailing. (Id. ¶¶ 5-6). He worked approximately 60 hours per week and received $22.00 per hour in payment, even when he worked more than 40 hours in a week. (Id. ¶¶ 7, 10-11). Glass paid him directly; he was paid partially by check and partially in cash. (Id. ¶¶ 12-13). Throughout his employment, Defendants failed to provide Huayllasaca with proper wage statements. (Id. ¶ 14).
II. LEGAL STANDARD
The court must accept as true all of the well-pleaded factual allegations in the complaint pertaining to liability when a defendant defaults. See Finkel v. Romanowicz, 577 F.3d 79, 83 n.6, 84 (2d Cir. 2009); Fed.R.Civ.P. 8(b)(6). Nevertheless, since a defaulting defendant does not admit conclusions of law, see Amer. Trans. Ins. Co. v. Bilyk, 514 F.Supp.3d 463, 471 (E.D.N.Y. Jan. 21, 2021), the court is required to determine whether the “well-pleaded” factual allegations establish liability as a matter of law, Finkel, 577 F.3d at 84. Therefore, “[a] default [] only establishes a defendant's liability if those allegations are sufficient to state a cause of action . . .” Taizhou Zhongneng Import and Export Co., LTD v. Koutsobinas, 509 App'x 54, 56 (2d Cir. 2013).
However, a defendant's default “is not considered an admission of damages.” Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (quoting Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012)). Thus, “the plaintiff bears the burden of proof and must introduce admissible evidence to establish, with reasonable certainty, a basis for the amount of damages it seeks.” Flores v. Jermyn Contracting Corp., 21 Civ. 5360 (VB) (PED), 2022 WL 4636900, at *3 (S.D.N.Y. Aug. 22, 2022), report and recommendation adopted, 2022 WL 4661998 (S.D.N.Y. Sept.30, 2022). The Court has “wide discretion” in conducting this inquiry. Anglo-Iberia Underwriting Mgmt. Co. v. Lodderhose, 282 F.Supp.2d 126, 129 (S.D.N.Y. 2003). Furthermore, Plaintiffs are entitled to all reasonable inferences from the evidence they offer. House v Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010).
III. DISCUSSION
A. FLSA Overtime Claim
Under the FLSA, an employer is required to pay employees for the hours worked in excess of forty hours during a workweek “at a rate not less than one and one-half times the regular rate at which [they are] employed.” Espinoza v. Broadway Pizza & Rest. Corp., 17-CV-7995 (RA) (KHP), 2021 WL 7903991, at *4 (S.D.N.Y. Nov. 18, 2021) (citing 29 U.S.C. § 207(a)(1)), report and recommendation adopted, 2022 WL 977068 (S.D.N.Y. Mar. 31, 2022). “There is a presumption that an employee is entitled to overtime[.]” Id.
“To state a claim for overtime wages under the FLSA, plaintiff must allege that: (1) he was defendants' employee; (2) his work involved interstate activity; and (3) he worked hours for which he did not receive overtime wages.” Flores, 2022 WL 4636900, at *3 (citing Suriel v. Cruz, CIVIL ACTION NO.: 20 Civ. 8442 (VSB) (SLC), 2022 WL 1750232, at *10 (S.D.N.Y. Jan. 10, 2022), report and recommendation adopted, 2022 WL 1751163 (S.D.N.Y. May 31, 2022)). When an individual has multiple employers for the purposes of the FLSA, “all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA].” Guzman v. Primo Installation, Inc., 18-CV-7226 (AT) (BCM), 2022 WL 3230095, at *6 (S.D.N.Y. June 8, 2022) (alteration in original), report and recommendation adopted, 2022 WL 3229219 (S.D.N.Y. Aug. 10, 2022) (quoting Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 421 (S.D.N.Y. 2017)).
To satisfy the “interstate activity” element, a plaintiff must be personally engaged in commerce or employed by an entity engaged in commerce. See Suriel, 2022 WL 1750232, at *11. An entity is “engaged in commerce” if that entity “has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.” Shi v. TL & CG Inc., 19-CV-08502 (SN), 2022 WL 2669156, at *4 (S.D.N.Y. July 11, 2022) (quoting 29 U.S.C. § 203(s)(1)(A)(i)-(ii)). In addition, an entity's “annual gross volume of sales made or business done” must be “not less than $500,000.” Id. (quoting 29 U.S.C. § 203(s)(1)(A)(ii)).
Plaintiffs allege that they were employed by Defendants as a painter and contractor/wood-worker, respectively, and that they worked at the behest of Glass, who runs Defendants' daily operations including hiring, firing, and the amount and manner of payment. (See Complaint ¶¶ 59, 61, 65, 68-69, 79, 81, 85, 88-89). Plaintiffs contend that each Defendant is engaged in interstate commerce valued in excess of $500,000.00 annually. (Id. ¶¶ 28-31). Furthermore, Plaintiffs maintain that they worked more than forty hours per week throughout their employment with Defendants, but that Defendants paid them “straight time,” i.e., their base hourly rate, for all their hours, despite their entitlement to the additional “half-time” premium afforded by the FLSA. (See Zambrano Decl. ¶¶ 7, 10-11; Huayllasaca Decl. ¶¶ 7, 10-11); see also 29 U.S.C. § 207(a)(1).
Defendants have failed to appear. (See Docket Nos. 25-29). As a result, they have not rebutted the presumption that Plaintiffs are entitled to overtime compensation for hours worked in excess of forty hours per week. See Espinoza, 2021 WL 7903991, at *4. Accordingly, the undersigned recommends that Defendants be found jointly and severally liable under the FLSA for failing to properly compensate Plaintiffs for overtime.
B. NYLL Overtime Claim
“The NYLL's wage and overtime protections are analogous to those of the FLSA.” Chen v. Oceanica Chinese Rest., Inc., 13-CV-4623 (NGG) (PK), 2016 WL 11818202, at *6 (E.D.N.Y. Mar. 31, 2016). Like the FLSA, the NYLL obligates employers to pay overtime rates calculated at “one and one-half times the employee's regular rate” of pay for all hours worked in excess of forty in a single work week. 12 NYCRR §142-2.2. Plaintiff bears the burden of demonstrating that he was an “employee[],” and “that defendants were ‘employers' as defined by the statute and its accompanying regulations.” Chen, 2016 WL 11818202, at *7 (citing N.Y. Lab. Law § 650; 12 NYCRR § 142-2.2). An employee is “any individual employed or permitted to work by an employer in an occupation.” N.Y. Lab. Law § 651(5). An employer is “any individual, partnership, association, corporation, limited liability company, business trust, legal representative, or any organized group of persons acting as an employer.” Id. § 651(6).
Whether an entity qualifies as an “employer”-which has been interpreted synonymously under the NYLL and FLSA, see Tambriz v. Taste & Sabor LLC, 577 F.Supp.3d 314, 323 (S.D.N.Y. 2021), report and recommendation adopted, 2022 WL 282918 (S.D.N.Y. Jan. 31, 2022)-is based off a “four factor ‘economic reality' test, which assesses whether the supposed employer: “(1) had the power to hire and fire 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,” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). Here, Plaintiffs' unrebutted allegations demonstrate that Defendants are jointly and severally liable under the FLSA for failure to pay overtime in compliance with 29 U.S.C. § 207(a)(1). Accordingly, the undersigned respectfully recommends finding that Defendants are jointly and severally liable under the NYLL for failing to compensate Plaintiffs for their overtime.
C. NYLL Wage Statement Violations
The NYLL mandates that “every employer shall [] provide [their] employees” a wage notice in writing and in the employee's primary language “at the time of hiring,” N.Y. Lab. L. § 195(a)(1), and will “furnish each employee with a statement with every payment of wages,” id. § 195(3). New York law further requires that “[e]very employer shall establish, maintain, and preserve, for not less than six years, weekly payroll records . . . for each employee.” N.Y.C.R.R. § 142-2.6. Zambrano alleges that Defendants did not provide him with proper wage statements, nor did Defendants provide him with a written notice when he was hired. (Zambrano Decl. ¶¶ 14-15).Huayllasaca alleges that Defendants never provided him with proper wage statements. (Huayllasaca Decl. ¶ 14). Plaintiffs' allegations are unrebutted. Accordingly, the undersigned respectfully recommends finding Defendants jointly and severally liable for wage statement violations under New York law.
Plaintiffs allege in the Complaint that Defendants failed to establish, maintain, and preserve accurate payroll records. (Complaint ¶ 110). Plaintiffs also allege that Huayllasaca was not given a wage notice at the time of hiring. (Id. ¶ 108; see also Huayllasaca Decl. ¶15). These claims appear to have been abandoned. In his inquest submission, Zambrano seeks damages only for Defendants' failure to provide wage statements and provide written notice at the time he was hired. (Docket No. 34-3 at 9; Docket No. 36-4 at 1). Huayllasaca seeks damages only for Defendants' failure to provide wage statements. (Docket No. 34-3 at 9; Docket No. 36-4 at 2).
IV. DAMAGES
Zambrano seeks the following damages: (1) $23,280.00 in back pay for unpaid overtime; (2) $23,280.00 in liquidated damages for overtime violations; (3) $5,000.00 for failure to provide notices upon hiring; (4) $5,000.00 for failure to provide wage statements; and (5) $8,013.04 in prejudgment interest. (Docket No. 36-4 at 2). Huayllasaca seeks the following damages: (1) $39,600.00 in back pay for unpaid overtime; (2) $39,600.00 in liquidated damages for overtime violations; (3) $5,000.00 for failure to provide wage statements; and (4) $18,085.28 in prejudgment interest. (Id. at 3). Plaintiffs further seek $7,441.00 in attorneys' fees and $854.05 in costs. Plaintiffs submit the following in support: (1) declarations from Zambrano and Huayllasaca detailing their work for Defendants, (Docket No. 36-2); (2) a calculation of Plaintiffs' damages, (Docket No. 36-4); (3) contemporaneous attorney billing records, (Docket No. 36-6); and (4) documentation substantiating costs, (Docket No. 36-5). After careful review of Plaintiffs' submission, the undersigned respectfully recommends that Plaintiffs be awarded damages.
A. Compensatory Damages for Overtime Violations
“Lawsuits arising from a violation of the FLSA are subject to a two-year statute of limitations.” Mark v. Gawker Media LLC, 13-cv-4347(AJN), 2016 WL 1271064, at *2 (S.D.N.Y. Mar. 29, 2016) (citing 29 U.S.C. § 255(a)). If the employer's violation was “willful,” the FLSA's statute of limitations is extended to three years. Id. “[T]o prove a willful violation of the FLSA within the meaning of § 255(a), it must be established that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (quoting Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995)). Where a plaintiff alleges that defendant's actions were willful and the defendant defaults, plaintiff is entitled to a willfulness finding and application of the three-year limitations period. See Angamarca v. Pita Grill 7 Inc., No. 11 Civ. 7777 (JGK)(JLC), 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012). On the other hand, claims brought under the NYLL are subject to a six-year statute of limitations. N.Y. Lab. L. § 663(3). While Plaintiffs “may not recover under both the FLSA and NYLL for the same injury,” they may recover damages pursuant to the statute that entitles them to greater relief. See, e.g., Suriel, 2022 WL 1750232, at *9.
Zambrano worked for Defendants from May 2018 through March 2020 and filed his Complaint on April 15, 2022. (Complaint ¶ 58). Under the FLSA, the earliest date from which Zambrano can recover damages is April 15, 2019. See Angamarca, 2012 WL 3578781, at *4. Accordingly, Zambrano cannot recover lost wages under the FLSA for his employment between May 2018 and April 15, 2019. See id. The Court will, therefore, calculate compensatory damages for Zambrano under the NYLL as of May 2018, as the NYLL “provides for the greatest relief” because of its extended limitations period. Id.; see also Garcia v. Saigon Grill, Inc., 15-CV-9433 (VSB), 2022 WL 1218482, at *2 (S.D.N.Y. Apr. 25, 2022) (“Courts in this Circuit routinely apply NYLL's six-year statute of limitations when plaintiffs bring minimum wage and overtime claims pursuant to both laws.”) (collecting cases). Accordingly, the undersigned respectfully recommends awarding Zambrano damages for unpaid overtime wages under the NYLL in the amount of $23,280.00, which is calculated as follows:
Straight-time hourly wage = $24.00/hour
Overtime hourly wage = $36.00/hour ($24.00 x 1.5)
Unpaid overtime hourly wage = $12.00/hour ($36.00 - $24.00)
Unpaid overtime hours worked = 1,940 (20 hours/week x 97 weeks)
TOTAL UNPAID OVERTIME OWED: $23,280.00 (1,940 x $12.00)
The Court credits Zambrano's unrebutted representation that he worked from May 1, 2018 to March 15, 2020. (Docket No. 36-4 at 2).
Huayllasaca worked for Defendants from February 2011 through September 2019 and filed his Complaint on April 15, 2022. (Complaint ¶ 78). Under the FLSA, Huayllasaca cannot recover damages prior to April 15, 2019. However, under the NYLL, Huayllasaca can recover damages back to April 15, 2016. Since the NYLL provides the greatest relief, Garcia, 2022 WL 1218482, at *2, the undersigned respectfully recommends awarding Huayllasaca damages for unpaid overtime wages under the NYLL in the amount of $39,600.00, which is calculated as follows:
Straight-time hourly wage = $22.00/hour
Overtime hourly wage = $33.00/hour ($22.00 x 1.5)
Unpaid overtime hourly wage = $11.00/hour ($33.00 - $22.00)
Unpaid overtime hours worked = 3,600 (20 hours/week x 180 weeks)
TOTAL UNPAID OVERTIME OWED: $39,600.00 (3,600 x $11.00)
The Court credits Huayllasaca's unrebutted representation that he worked from April 15, 2016 to September 30, 2019, which does not include the non-compensable hours worked by Huayllasaca outside of the limitations period. (Docket No. 36-4 at 3).
B. Plaintiffs' Liquidated Damages and Prejudgment Interest
“Under the FLSA, a plaintiff who demonstrates that he was improperly denied either minimum or overtime wages may recover, in addition to reimbursement of these unpaid wages, an ‘additional equal amount as liquidated damages.'” Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) (quoting 29 U.S.C. § 216(b)), report and recommendation adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). The NYLL also authorizes liquidated damages equaling “100%” of the employee's unpaid wages. Id. (citing N.Y. Lab. L. §§ 198(1-a), 663). In addition to liquidated damages, the NYLL allows for recovery of prejudgment interest. Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (wage-and-hour plaintiff may recover both liquidated damages and prejudgment interest under NYLL because such awards “serve fundamentally different purposes”).
While a plaintiff may not recover liquidated damages under both the FLSA and the NYLL, he may recover liquidated damages “under the statute that provides the greatest relief.” See Guzman, 2022 WL 3230095, at *14 (quoting Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., 14-CV-7850 (VEC) (DF), 2016 WL 8650464, at *27-28 (S.D.N.Y. Nov. 7, 2016)). Here, the NYLL provides both Zambrano and Huayllasaca greater relief than that provided by the FLSA because of its longer limitations period and the availability of prejudgment interest, see N.Y. Lab. L. § 198(1)(a), which is not available under the FLSA, see Guzman, 2022 WL 3230095, at *15 n.67. Furthermore, under the NYLL “liquidated damages are presumed unless Defendant[s] can show subjective good faith.” Espinoza, 2021 WL 7903991, at *8 (quoting Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012)). Since Defendants have defaulted “they have not established good faith to rebut the liquidated damages presumption and therefore, Defendant[s'] violation is deemed to be willful.” Id. Accordingly, the undersigned respectfully recommends that Zambrano be awarded liquidated damages under the NYLL in the amount of $23,280.00, and that Huayllasaca be awarded liquidated damages under the NYLL in the amount of $39,600.00.
Furthermore, NYLL § 198(1-a) allows plaintiffs to recover prejudgment interest, which applies “only to the amount of compensatory damages[] and excludes the amount of liquidated damages.” Xochimitl, 2016 WL 4704917, at *18. New York's prejudgment interest rate is nine percent per annum. N.Y. C.P.L.R. § 5004(a). Where a plaintiff's damages were incurred at various times, interest may be computed “upon all of the damages from a single reasonable intermediate date.” Id. § 5001(b). “In NYLL cases, courts often calculate prejudgment interest from the midpoint of the plaintiff's employment.” Guzman, 2022 WL 3230095, at *15 (citing Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 93 (E.D.N.Y. 2012) (collecting cases). Interest accrues “until and including the date judgment is entered.” Garcia, 2022 WL 1218482, at *3 (quoting Maldonado v. La Nueva Rampa, Inc., No. 10 Civ. 8195(LLS)(JLC), 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012)).
Zambrano seeks $8,013.04 in prejudgment interest. Zambrano arrives at this figure by multiplying $23,280.00 (compensatory damages) by 0.09 (9% statutory rate), to arrive at an annual interest of $2,095.00. Zambrano divides the annual interest rate by 365 to arrive at an approximate daily interest of $5.74. Zambrano then multiplies the daily interest rate by 1396 days (which represents the number of days from the midpoint of Zambrano's employment to February 3, 2023, the date that Zambrano submitted documents supporting the proposed default judgment). While Zambrano correctly calculates the approximate daily interest ($5.74/day), the end date from which he proposes interest should be calculated is incorrect. Zambrano is entitled to receive prejudgment interest until the date of the entry of judgment, see Garcia, 2022 WL 1218482, at *3, rather than the date that he submitted a proposed default judgment (February 3, 2023). Nevertheless, the undersigned does not recommend that Plaintiff be awarded more prejudgment interest than he seeks. Consequently, the undersigned respectfully recommends that Zambrano's request for $8,013.04 in prejudgment interest be granted, which represents the interest that accrued from the midpoint of his employment to the date that he submitted the proposed default judgment. See, e.g., Conway v. Icahn & Co., 16 F.3d 504, 512 (2d Cir. 1994) (courts applying N.Y. C.P.L.R. § 5001(b) have “wide discretion in determining a reasonable date from which to award pre-judgment interest.”).
Huayllasaca requests $18,085.28 in prejudgment interest. As is the case with Zambrano, Huayllasaca calculates a correct daily interest of $9.76/day, which is based off the statutory 9% interest rate set by N.Y. C.P.L.R. § 5004(a). Huayllasaca uses the midpoint of his employment as the start date to calculate prejudgment interest, but uses the incorrect end date (i.e., the date he submitted his proposed default judgment). For the reasons set forth above, the undersigned respectfully recommends that Huayllasaca's request for $18,085.28 in prejudgment interest be granted.
C. Wage Statement Violations
Plaintiffs each seek $5,000.00 in statutory damages for Defendants' failure to provide them with wage statements in violation of NYLL § 195(3). (Zambrano Decl. ¶ 14; Huayllasaca Decl. ¶ 14). “Violations of Section 195(3) result in damages of $250 per workday, for a maximum of $5,000, which is reached after 20 days.” Suriel, 2022 WL 1750232, at *16. Here, each Plaintiff alleges that he was not provided with wage notices throughout his entire employment, which spanned two and seven years, respectively. (Zambrano Decl. ¶ 14; Huayllasaca Decl. ¶ 14). Accordingly, the undersigned respectfully recommends that Zambrano and Huayllasaca each be awarded $5,000.00 for Defendants' violations of NYLL § 195(3).
Zambrano also alleges that he was not provided with a wage notice when he was hired. (Zambrano Decl. ¶ 15). An employer's failure to comply with NYLL § 195(1)(a) results in a damages award of $50.00 per day up to a total of $5,000.00. See Ji v. Jling Inc., 15-CV-4194 (SIL), 2022 WL 1080989, at *9 (E.D.N.Y. Apr. 11, 2022) (citing N.Y. Lab. L. § 195(1-b)). Zambrano alleges that he worked more than 100 days. Thus, the undersigned respectfully recommends that Zambrano be awarded $5,000.00 for Defendants' violation of NYLL § 195(1)(a).
V. Attorney's Fees and Costs
A successful plaintiff may recover reasonable attorney's fees under both the FLSA and NYLL. See Suriel, 2022 WL 1750232, at *17 (citing 29 U.S.C. § 216(b); N.Y. Lab. L. §§ 198, 663). Here, counsel asks for $7,441.00 in attorney's fees. “District courts have broad discretion when awarding a fee, but must clearly explain the reasons supporting an award.” Ortega v. JR Primos 2 Rest. Corp., 15 Civ. 9183 (JCF), 2017 WL 2634172, at *6 (S.D.N.Y. June 16, 2017). “Courts ordinarily award a lodestar fee, which is the product of the prevailing market rate for lawyers in the district and the number of hours a reasonable attorney would spend to litigate the case effectively.” Id. (quoting Tackie v. Keff Enters. LLC, No. 14-CV-2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014)). In assessing the reasonableness of attorneys' fees, the court must: “(1) determine the reasonable hourly rate; (2) determine the number of hours reasonably expended; (3) multiply the reasonable hourly rate by the number of hours reasonably expended to determine the presumptively reasonable fee; and (4) make an appropriate adjustment to arrive at the final fee award.” Creighton v. Dominican Coll., No. C09-3983Z, 2011 WL 4914724, at *6 (S.D.N.Y. Aug. 16, 2011).
A. Reasonable Hourly Rate
A court evaluating a request for attorneys' fees must base its award on a “‘reasonable hourly rate,' i.e., ‘the rate a paying client would be willing to pay,'” bearing in mind that a client “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); Salama v. City of New York, No. 13-cv-9006 (PKC), 2015 WL 4111873, at *1 (S.D.N.Y. July 8, 2015) (quoting id.). A reasonable hourly rate is one “in line with prevailing rates” in the district where the court sits “for similar services by lawyers of reasonably comparable skill, expertise and reputation.” McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006) (alterations omitted) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). In setting a reasonable hourly rate, “a court should consider all of the ‘casespecific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorneys' fees' . . . including the so-called Johnson factors.” New York Youth Club v. Town of Harrison, 12-CV-7534 (CS), 2016 WL 3676690, at *2 (S.D.N.Y. July 6, 2016) (alterations in original) (quoting Arbor Hill, 522 F.3d at 190).
The Johnson factors, as set forth by the Fifth Circuit, are: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability' of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” Arbor Hill, 522 F.3d at 186 n.3 (internal quotations omitted).
Counsel, Robert P. Valletti (“Valletti”), charged Plaintiffs an hourly rate of $350.00 in 2021 and $385.00 in 2022 and 2023. (Docket No. 36 ¶ 16 (“Valletti Decl.”)). Valletti affirmed that he received his Juris Doctorate from Benjamin N. Cardozo School of Law in 2011 and has been practicing law in New York for over ten years. (Id. ¶¶ 21-22). Valletti practiced labor and employment law at two firms before founding his own firm, Valletti & Associates, LLC, in 2015, which specializes in employment law. (Id. ¶¶ 22, 24-25).
The Court finds that Valletti's rates are reasonable and fall within the range of rates approved in wage-and-hour cases in the Southern District of New York. See, e.g., Guzman, 2022 WL 3230095, at *16-17 (approving award of $450.00/hour to “well-seasoned” employment litigator); Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour.”); Flores, 2022 WL 4636900, at *7 (approving Valletti's hourly rate in matter bringing the same claims against the same Defendants).
B. Reasonable Number of Hours Expended
“The party seeking attorneys' fees bears the burden of demonstrating that the claimed . . . number of hours [is] reasonable,” and the “amount of time expended” is “adequately supported by contemporaneous time records specifying relevant dates, time spent, and work done.” Creighton, 2011 WL 4914724, at *6 (internal quotations and citations omitted). “Adjustments must be made to the number of hours expended based on case-specific factors, including deductions for ‘excessive, redundant, or otherwise unnecessary hours.'” Id. (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)).
Valletti submitted contemporaneous time records for 19.5 hours of work. (Docket No. 36-6). The hours are adequately documented and are reasonable for this type of case. Accordingly, the undersigned respectfully recommends that Valletti be compensated at $350.00/hour for 1.9 hours of work in 2021 and $385.00/hour for 17.6 hours of work in 2022 and 2023 for a total award of $7,441.00.
C. Costs
Counsel requests $1,256.05 in costs, specifically for service and filing fees. (Docket Nos. 36-5, 36-6). Plaintiffs “[are] entitled to ‘those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'” Polit v. Glob. Foods Int'l Corp., No. 14-CV-07360 (SN), 2017 WL 1373907, at *9 (S.D.N.Y. Apr. 13, 2017) (quoting LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998)). The undersigned finds that Plaintiffs' costs are reasonable and respectfully recommends that Plaintiffs be awarded $1,256.05 in costs.
VI. CONCLUSION
For the reasons stated herein, I conclude and respectfully recommend that Plaintiffs be awarded damages against the defaulting Defendants in the total amount of $175,555.37, which is broken down as follows:
1. Unpaid overtime to Zambrano in the amount of $23,280.00;
2. Unpaid overtime to Huayllacasa in the amount of 39,600.00;
3. Liquidated Damages to Zambrano in the amount of $23,280.00;
4. Liquidated Damages to Huayllacasa in the amount of 39,600.00;
5. Prejudgment interest to Zambrano in the amount of $8,013.04;
6. Prejudgment interest to Huayllacasa in the amount of $18,085.28;
7. Statutory damages for wage statement violations to Zambrano in the amount of $10,000.00;
8. Statutory damages for wage statement violations to Huayllacasa in the amount of $5,000.00;
9. Attorney's fees in the amount of $7,441.00; and
10. Costs in the amount of 1,256.05.
Plaintiffs' counsel is directed to serve a copy of this Report and Recommendation on Defendants and file proof of service promptly.
Additionally, I respectfully recommend that “if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.” N.Y. Lab. L. § 198(4).
VII. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed.R.Civ.P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Cathy Seibel at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Cathy Seibel and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).