Opinion
20-CV-5409 (AJN) (RWL)
2021-12-29
Leonardo Xum TAMBRIZ, Octaviano Xum Tambriz, Ruben Romero Robles, and on behalf of others similarly situated, Plaintiffs, v. TASTE AND SABOR LLC (d/b/a Taste and Sabor), Jacob R. Selechnik, and Nurkia DeLeon, Defendants.
Catalina Sojo, Khalil Patrick Huey, CSM Legal P.C., New York, NY, Michael Antonio Faillace, Michael Faillace & Associates, P.C., New York, NY, Gennadiy Naydenskiy, Naydenskiy Law Firm, LLC, Spotswood, NJ, for Plaintiffs. Jacob R. Selechnik, Bronx, NY, Pro Se.
Catalina Sojo, Khalil Patrick Huey, CSM Legal P.C., New York, NY, Michael Antonio Faillace, Michael Faillace & Associates, P.C., New York, NY, Gennadiy Naydenskiy, Naydenskiy Law Firm, LLC, Spotswood, NJ, for Plaintiffs.
Jacob R. Selechnik, Bronx, NY, Pro Se.
REPORT AND RECOMMENDATION TO HON. ALISON J. NATHAN: DEFAULT JUDGMENT
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiffs Leonardo Tambriz ("Leonardo"), Octaviano Xum Tambriz ("Octaviano"), and Ruben Romero Robles ("Robles") (together "Plaintiffs"), bring this action for violations of the Fair Labor Standards Act (the "FLSA") and the New York Labor Law (the "NYLL"). The Clerk of Court has issued certificates of default, and Plaintiffs have moved for default judgment. The matter has been referred to me for report and recommendation. For the reasons set forth below, I recommend that the Court enter default judgment in favor of Plaintiffs and award damages, pre-judgment interest, and reasonable attorneys’ fees and costs as set forth below.
The facts are drawn from well-plead allegations in the Complaint ("Compl." Dkt. 1); the documents filed with Plaintiffs’ Motion For Default Judgment (Dkt. 39), including the Declarations of Octaviano Xum Tambriz ("Octaviano Decl."), Leonardo Xum Tambriz ("Leonardo Decl."), and Ruben Romero Robles ("Robles Decl."). On December 6, 2021, Plaintiffs filed corrected copies of the Octaviano and Leonardo Declarations (Dkt. 50), as the copies previously filed on ECF had been missing the second page of each. (See Declaration Of Khalil Huey In Support Of Plaintiffs’ Motion For Default, Dkt. 50 ("Huey Decl.") at Ex. B.) Citations herein are to the corrected declarations. Plaintiffs also filed a revised damages schedule (the "Damages Schedule"), attached as Exhibit E to the Huey Decl.
Plaintiffs are former employees of a restaurant operated by Defendant Taste and Sabor LLC, d/b/a Taste and Sabor) (the "Restaurant"). Plaintiffs each worked as a cook at the Restaurant, which is located at 318 W. 231 Street in the Bronx. Defendant Nurkia DeLeon ("DeLeon") is a manager of the Restaurant who had the authority to hire and fire employees and determine employee compensation and work schedules. The Restaurant and DeLeon are referred collectively herein as Defendants.
The other named defendant, Jacob R. Selechnik, was voluntarily dismissed from the case on June 23, 2021. (Dkt. 31.)
Leonardo was employed by Defendants from approximately June 15, 2018 until February 12, 2020. He claims to have regularly worked in excess of 40 hours per week but provides his hours only for the period between September 1, 2019 and February 12, 2020. Specifically, Leonardo asserts that during that period, he worked from approximately 7:00 am or 8:00 a.m. until on or about 7:00 p.m. or 8:00 p.m., six or seven days a week, resulting in a typical work week of approximately 78 hours.
Plaintiffs’ damages schedule sets forth damages for only for the period from September 1, 2019 to February 12, 2020. See Huey Decl. at Ex. E.
Leonardo asserts that he typically worked 72 to 84 hours per week. For purposes of determining damages, Plaintiffs have used the midpoint of 78 hours per week. (See Damages Schedule.) The Court agrees with and adopts that number of hours.
Octaviano was employed by Defendants from approximately June 1, 2018 until on or about February 12, 2020. Like Leonardo, Octaviano claims to have worked in excess of 40 hours per week and provides his hours only for the period between September 1, 2019 and February 12, 2020. Specifically, Octaviano asserts that during that period he worked from approximately 2:00 p.m. to 10:00 p.m. six days a week and from approximately 10:00 a.m. until 10:00 p.m. two Sundays per month, resulting in a typical work week of 54 hours.
Octaviano asserts that he typically worked 48 to 60 hours per week. For purposes of determining damages, Plaintiffs have used the midpoint of 54 hours per week. (Damages Chart.) The Court agrees with and adopts that number of hours.
Robles was employed by Defendants from approximately May 1, 2018 until February 11, 2020. Robles typically worked 27 hours per week, from approximately 5:30 p.m. until 10:00 p.m. six days per week. Defendants paid Robles $15.00 per hour.
Robles’ statement that he worked 27 hours per week is at odds with an immediately preceding statement that he regularly worked in excess of 40 hours per week. (Robles Decl. ¶¶ 8-9.) The Court credits only the 27-hours figure as it is supported by the specific hours Robles claims to have worked, and it is the number used in Plaintiffs’ damages chart. The "excess of 40 hours" statement is quite clearly boilerplate language likely carried over from a template of some sort.
All three Plaintiffs assert that they were not paid at all for the last several weeks of their employment with Defendants. For Leonardo, that period was approximately ten weeks, from December 2019 until February 12, 2020; for Octaviano, the period was approximately six weeks, from January 2020 until February 12, 2020; for Robles, the period was approximately eight weeks, from December 20, 2019 to February 11, 2020.
Each also asserts that they never received any notice in English and Spanish (their native language) of their rate of pay, any information about minimum wage requirements, or any wage statements detailing their wages.
PROCEDURAL HISTORY
Plaintiffs commenced this action on July 14, 2020. (Dkt. 1.) Although filed as a collective action, Octaviano, Leonardo, and Robles are the only plaintiffs. In September 2020, Plaintiffs served Defendant DeLeon personally and the Restaurant through the New York State Secretary of State. (See Dkts. 12.) None of the Defendants filed an answer or other response to the Complaint. On July 13, 2021, Plaintiffs filed applications for certificates of default against the Defendants, which the Clerk of Court entered that same day. (Dkts. 34-38.) Plaintiffs then moved for default judgement on July 15, 2021. (Dkt. 39.) On November 5, 2021, the motion was referred to me for report and recommendation. (Dkt. 44.) Plaintiffs’ default motion papers included exhibits relating to damages and legal fees but did not contain any attestation as to those exhibits. Accordingly, the Court requested a supplemental affirmation attesting to damages and legal fees, which the Plaintiffs filed on December 6, 2021. (Dkt. 50.)
DEFAULT JUDGMENT REQUIREMENTS ARE MET
Federal Rule Of Civil Procedure ("Rule") 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Au Bon Pain Corp. v. Artect, Inc. , 653 F.2d 61 (2d Cir. 1981). Rule 55 establishes a two-step process for obtaining a judgment against a defaulting party. See Priestley v. Headminder, Inc. , 647 F.3d 497, 504-05 (2d Cir. 2011) ; City of New York v. Mickalis Pawn Shop , LLC, 645 F.3d 114, 128 (2d Cir. 2011) (quoting New York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) ). A plaintiff must first obtain from the Clerk of Court a certification of default indicating that a party has "failed to plead or otherwise defend." Fed. R. Civ. 55(a). Second, upon obtaining a certification of default, a plaintiff must move for default judgment pursuant to Rule 55(b). Green , 420 F.3d at 104. Here, Plaintiffs satisfied both the first steps by obtaining certificates of default and then moving for default judgment.
The decision to grant a motion for default judgment is left to the sound discretion of the district court. Cement And Concrete Workers District Council Welfare Fund v. Metro Foundation Contractors. Inc. , 699 F.3d 230, 233 (2d Cir. 2012) (quoting Finkel v. Romanowicz , 577 F.3d 79, 88 (2d Cir. 2009) ) (" Rule 55(b) commits this decision to the sound discretion of the district court"). To determine whether a motion for default judgment is warranted, courts within this district consider three factors: (1) whether the defendant's default was willful; (2) whether the defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment. Guggenheim Capital, LLC v. Birnbaum , 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment); Santana v. Latino Express Restaurants, Inc. , 198 F.Supp. 3d 285, 291 (S.D.N.Y. 2016) (same).
Here, all three factors weigh in Plaintiffs’ favor. First, Defendants’ non-appearance and failure to respond to the Complaint or otherwise appear indicate willful conduct. See Santana , 198 F.Supp.3d at 291 n.2 ; Indymac Bank, F.S.B. v. National Settlement Agency, Inc. , No. 07-CV-6865, 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007). Second, the Court is unable to determine that Defendants would be able to present any meritorious defense to Plaintiffs’ claims because Defendants have failed to appear. See Santana , 198 F. Supp. 3d at 291 n.2 (reaching same conclusion); Fermin v. Las Delicias Peruanas Restaurant, Inc. , 93 F. Supp. 3d 19, 31 (E.D.N.Y. 2015) (reasoning that a meritorious defense cannot be established where the defendant has not filed an answer, made an appearance and responded to the claims in the case). Third, "Plaintiff[s] will be prejudiced if, in light of Defendants’ default, [they are] unable to vindicate [their] rights and receive appropriate compensation for [their] hours worked." Santana , 198 F. Supp. 3d at 291 n.2.
The Court thus finds that default judgment should be entered in favor of Plaintiffs and against Defendants. That is not the end of the story, however. The Court also needs to address liability and damages.
When, as here, a defendant defaults, all well-pled facts alleged in the complaint, except those relating to the amount of damages, must be accepted as true. Mickalis Pawn Shop , 645 F.3d at 137 ("It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint" (internal quotations marks omitted)); Finkel , 577 F.3d at 84 (trial court is required to "accept all of [the plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.") "This principle applies regardless of whether default is entered as a discovery sanction or for failure to defend." Walpert v. Jaffrey , 127 F. Supp.3d 105, 129 (S.D.N.Y. 2015). The court may also rely on factual allegations pertaining to liability contained in affidavits and declarations submitted by the plaintiff. See, e.g. , Tamarin v. Adam Caterers, Inc. , 13 F.3d 51, 54 (2d Cir. 1993) ; Fustok v. ContiCommodity Services, Inc. , 873 F.2d 38, 40 (2d Cir. 1989). Nonetheless, the court "must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed." Shld, LLC v. Hall , No. 15-CV-6225, 2017 WL 1428864, at *3 (S.D.N.Y. April 20, 2017) ; see Finkel , 577 F.3d at 84.
Once liability has been established, a plaintiff must provide admissible evidence establishing the amount of damages with reasonable certainty. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Division of Ace Young Inc. , 109 F.3d 105, 111 (2d Cir. 1997) ; see also Lenard v. Design Studio , 889 F. Supp.2d 518, 527 (S.D.N.Y. 2012) (in an inquest following a default, "[a] plaintiff must ... substantiate a claim with evidence to prove the extent of damages").
To assess whether the plaintiff has established a sufficient basis for damages, a court has the discretion, but is not required, to hold a hearing. See Fed. R. Civ. P. 55(b)(2) ; Fustok , 873 F.2d at 40. An inquest into damages may be conducted on the papers, without an evidentiary hearing where there is a sufficient basis on which to make a calculation. See Bricklayers & Allied Craftworkers Local 2, Albany, New York Pension Fund v. Moulton Masonry & Construction, LLC , 779 F.3d 182, 189 (2d Cir. 2015) ; Tamarin 13 F.3d at 53-54 ; Maldonado v. La Nueva Rampa, Inc. , No. 10-CV-8195, 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012). There is sufficient basis to do so here; no party has requested a hearing; and the Court has determined that one is not needed.
As discussed next, the Court finds that Plaintiffs have established Defendants’ liability and that an award of damages can and should be made.
LIABILITY
Accepting the well-pled allegations of the Complaint as true, supplemented by the declarations and exhibits of record, the Court finds that Plaintiffs have established Defendants’ liability for unpaid minimum wage and overtime compensation under the FLSA and NYLL and violations of spread-of-hours, wage statement, and wage notice requirements under the NYLL.
A. Foundational Elements
The FLSA and NYLL generally require employers to pay a prescribed minimum wage as well as a premium overtime rate to employees who work more than forty hours in a workweek. 29 U.S.C. § 207(a)(1) ; NYLL § 232; 12 N.Y.C.R.R. § 142-2.2 ; see also Jacobs v. New York Foundling Hospital, 577 F.3d 93, 96 (2d Cir. 2009) (per curiam). An employer who fails to pay in accordance with the FLSA is "liable to the employee" for unpaid minimum wages, unpaid overtime compensation, and other damages. 29 U.S.C. § 216(b).
The FLSA enumerates certain categories of employees who are "exempt" from the overtime and minimum wage requirements. 29 U.S.C. § 213. Because none of those exemptions apply here, the Court does not discuss them.
"Whether an individual qualifies as an employer is substantially similar under the FLSA and NYLL, and courts commonly apply FLSA case law in deciding cases under both statutes." Yu Ling Shen v. Xue Mei Chen , No. 17-CV-1556, 2018 WL 2122819, at *3 (S.D.N.Y. May 8, 2018) (collecting cases); see Tapia v. Blch 3rd Ave LLC , 906 F.3d 58, 61 n.1 (2d Cir. 2018) ("For purposes of this appeal, we assume, without deciding, that the tests for employer status are the same under the FLSA and the NYLL." (internal quotation marks omitted)). Accordingly, courts in this circuit " ‘have interpreted the definition of ‘employer’ under the [NYLL] coextensively with the definition used by the FLSA.’ " Spicer v. Pier Sixty LLC , 269 F.R.D. 321, 335 n.13 (S.D.N.Y. 2010).
The NYLL defines employer as "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service." NYLL § 190. Under the FLSA's broad definition, 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).
The FLSA additionally has an interstate commerce requirement. The FLSA defines "commerce" to mean "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). An enterprise is "engaged in commerce or in the production of goods for commerce" if (1) it "has employees engaged in commerce or in the production of goods for commerce" or "has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person" and (2) its "annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are separately stated)." 29 U.S.C. § 203(s)(1)(A)(i)-(ii).
Plaintiffs have sufficiently alleged, and thus established, that Defendants were Plaintiffs’ employer under both the FLSA and the NYLL and that they worked for an enterprise having sales in excess of $500,000 and handling goods such as food and other supplies that originated outside of New York and traveled through interstate commerce daily. (Compl. ¶ 33-34; Leonardo Decl. ¶ 3; Octaviano Decl. ¶ 3; Robles Decl. ¶ 3.) B. Burden Of Proof
Plaintiffs’ assertions about interstate commerce are largely conclusory, as would be expected when an employer defaults and does not provide any discovery. Given reasonable inferences that can be made, and the remedial nature of the FLSA and NYLL, the Court finds these allegations sufficient in this case. See Cabrera v. Canela , 412 F. Supp.3d 167, 174 (E.D.N.Y. 2019) ("To decline to make reasonable inferences of interstate commerce in cases like this would frustrate the FLSA's remedial purpose and would give employers perverse incentives to default in FLSA actions, where plaintiff workers may lack specific information about their employers’ distribution networks. The Court refuses to handicap working men and women in such a manner.").
Under the FLSA, an employee bears the burden of proving that he was not properly compensated for his work. Daniels v. 1710 Realty LLC , 497 Fed App'x 137, 139 (2d Cir. 2012). "Where an employer's payroll records are inaccurate or incomplete, courts apply a burden-shifting scheme to determine whether an employee has established that he was underpaid, and what damages he suffered." Marcelino v. 374 Food, Inc. , No. 16-CV-6287, 2018 WL 1517205, at *15 (S.D.N.Y. March 27, 2018). In such instances, "an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Kuebel v. Black & Decker Inc. , 643 F.3d 352, 362 (2d Cir. 2011) (quoting Anderson v. Mount Clemens Pottery Co. , 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L.Ed. 1515 (1946) ). The Second Circuit has noted that this burden "is not high" and may be satisfied through an employee's "estimates based on his own recollection." Id. at 362.
If an employee satisfies this initial showing, the burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. Tyson Foods, Inc. v. Bouaphakeo , 577 U.S. 442, 136 S. Ct. 1036, 1047, 194 L.Ed.2d 124 (2016). "If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result may only be approximate." Gonzalez v. Masters Health Food Service Inc. , No. 14-CV-7603, 2017 WL 3835960, at *16 (S.D.N.Y. July 27, 2017) (quoting Kuebel , 643 F.3d at 362 ); see also Hosking v. New World Mortgage, Inc. , 570 F. App'x 28, 32 (2d Cir. 2014) (noting "that the employee's burden in proving damages under the FLSA is minimal, particularly when the employer does not keep records") The NYLL applies a similar framework to unpaid compensation claims, providing that "where an employer fails to ‘keep adequate records or provide statements of wages to employees as required’ by the statute, the employer ‘shall bear the burden of proving that the complaining employee was paid wages, benefits and wage supplements.’ " Gamero v. Koodo Sushi Corp. , 272 F. Supp. 3d 481, 498 (S.D.N.Y. 2017) (quoting NYLL § 196-a(a)).
Here, based on Defendants’ failure to appear, the Court does not have any payroll records before it to evaluate Plaintiffs’ claims. Accordingly, Plaintiffs may establish that they were underpaid through their own recollection of their estimated hours, wages, and the like.
C. Minimum Wage
The FLSA and the NYLL each require an employer to pay not less than a statutorily-set minimum wage for each hour of work. See 29 U.S.C. § 206(a)(1) ; N.Y. Lab. Law § 652(1) ; 12 N.Y.C.R.R. § 146-1.2.b. Plaintiffs are entitled to damages under only one statute. Gamero , 272 F. Supp. 3d at 498 ("[A]n employee ‘may not receive a "double recovery" of back wages under both the FLSA and they NYLL’ ") (quoting Hernandez v. Jrpac Inc. , No. 14-CV4176, 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016) ). "The federal minimum wage," however, "does not preempt the state minimum wage and a plaintiff may recover under whatever statute provides the highest measure of damages." Wicaksono v. XYZ 48 Corp. , No. 10-CV-3635, 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011), R & R adopted , 2011 WL 2038973, at *1 (S.D.N.Y. May 24, 2011) (internal citation omitted); see also Gamero , 272 F. Supp. 3d at 498 (the Court has discretion to award Plaintiffs damages under "the statute providing the greatest amount of relief").
To determine the extent of Plaintiffs’ damages under FLSA's or NYLL's minimum wage provisions, the Court typically must first address three items: (i) whether, for tipped-employees, Defendants are entitled to take a tip credit against their minimum wage and overtime obligations for tips received; (ii) whether Plaintiffs took breaks that reduce their hours, and (iii) the Plaintiffs’ "regular rate" of pay. As cooks, Plaintiffs were not tipped employees. Accordingly, the tip credit is not a factor to consider.
1. Meal Breaks
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 International, Inc. , 60 F.Supp.3d 447, 475 n.15 (S.D.N.Y. 2014) (citing IBP, Inc. v. Alvarez , 546 U.S. 21, 126 S. Ct. 514, 163 L.Ed.2d 288 (2005) ); see Reich v. Southern New England Telecommunications Corp. , 121 F.3d 58, 64-65 (2d Cir. 1997) (interpreting 29 C.F.R. § 785.19 ). For a break to so qualify, the employee "must be completely relieved from duty for the purposes of eating regular meals." 29 C.F.R. § 785.19(a). "Ordinarily 30 minutes or more is long enough for a bona fide meal period," id. , but "[r]est periods of short duration, running from 5 minutes to about 20 minutes ... are customarily paid for as working time [and] must be counted as hours worked." 29 C.F.R. § 785.18. Each Plaintiff asserts that he did not receive any meal breaks. The Court has no information before it to contradict their assertions. Accordingly, the Court finds that all of Plaintiffs’ workday time was compensable.
2. Regular Rate Of Pay vs. Minimum Wage
The remaining question is whether Plaintiffs’ "regular rate" of pay was less than the applicable minimum wage. Pursuant to the FLSA, the "regular rate" of pay is determined by "dividing an employee's total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him for which such compensation was paid." 29 C.F.R. § 778.109. "If the employee is employed solely on a weekly salary basis, the regular hourly rate of pay ... is computed by dividing the salary by the number of hours which the salary is intended to compensate. 29 C.F.R. § 778.113. "Under both the FLSA and NYLL, ... there is a presumption that such a weekly salary covers only the first forty hours, unless the parties ‘intend and understand the weekly salary to include overtime hours at the premium rate.’ " Guallpa v. N.Y. Pro Signs Inc. , No. 11-CV-3133, 2014 WL 2200393, at *3 (S.D.N.Y. May 27, 2014) (quoting Giles v. City of New York , 41 F.Supp. 2d 308, 317 (S.D.N.Y. 1999) ). Accordingly, "[a]n agreement for a fixed weekly salary for more than 40 hours of work per week only complies with the FLSA and [NYLL] if there is an explicit understanding between the employer and employee as to regular and overtime rates." Amaya v. Superior Tile And Granite Corp. , No. 10-CV-4525, 2012 WL 130425, at *9 (S.D.N.Y. Jan. 17, 2012).
Under the NYLL, the regular rate of pay of an employee in the hospitality industry (which includes restaurants) is calculated "by dividing 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." 12 N.Y.C.R.R. § 146-3.5(b). "Under both the FLSA and NYLL, once the Court determines the ‘actual number of hours worked’ per week and calculates the ‘regular rate’ based on those hours, the ‘regular rate’ is then compared to the statutorily-imposed minimum wage to determine whether the employee has been underpaid." Java v. Aguila Bar Restaurant Corp. , No. 16-CV-6691, 2018 WL 1953186, at *10 (S.D.N.Y. April 25, 2018).
Plaintiffs’ employment by the Restaurant spanned three years from 2018 to 2020. During those years, the federal minimum hourly wage rate was $7.25 per hour. 29 U.S.C. § 206(a)(1). New York State sets different hourly wages for different size employers, the dividing line being employers with ten or fewer employees and those with eleven or more employees. The state minimum wage rates for 2018-2020 were as follows:
| Year | 11 or more employees | 10 or fewer employees |
|---|---|---|
| 2018 | $13.00 | $12.00 |
| 2019 | $15.00 | $13.50 |
| 2020 | $15.00 | $15.00 |
NYLL § 652(1)(a)(ii). As can be seen, under either regime for the relevant years, the NYLL rate exceeds the federal minimum wage rate. The Court therefore will apply the higher NYLL minimum wage rates.
None of the Plaintiffs, nor the Complaint, indicates the number of persons employed by Defendants during the relevant period. A reasonable inference can be made, however, that the number of employees was eleven or more. All three Plaintiffs were employed as cooks, and the three had overlapping hours during dinner hours. The Restaurant necessarily required a complement of bussers, food preparers, waiters, and a cashier and/or host. Based on the range of hours worked by Plaintiffs, activity of some sort was taking place in the Restaurant between 7:00 a.m. and 10:00 p.m. At least some of the workers presumably were shift workers, meaning that more than one person would fill a given role during the course of the entire daily 15-hour work period. Taking all that into account, it is reasonable to infer that just as the Restaurant employed three cooks, it employed at least three bussers, three preparers, and three waiters, which puts the total employee count at least at twelve. The applicable minimum wage rates thus are $13.00 per hour for 2018 and $15.00 per hour for 2019 and 2020.
Determining the regular rate of pay that Plaintiffs actually received is not uniform. Leonardo attests to receiving a weekly flat salary of $750. Although he worked 78 hours per week, he does not assert, and there is no evidence of, "an explicit understanding between the employer and employee as to regular and overtime rates," Amaya, 2012 WL 130425 at *9, sufficient to rebut the "presumption that such a weekly salary covers only the first forty hours," Guallpa , 2014 WL 2200393 at *4. Dividing $750 by 40 results in a "regular rate" of pay of $17.50 per hour, which exceeds the minimum wage in each year he worked for Defendants. In contrast to Leonardo, the other Plaintiffs attest to being paid not on a flat weekly salary, but rather by an hourly rate of $15.00, which equals or exceeds the minimum wage for the relevant period.
As a result, none of the Plaintiffs have established Defendants’ liability with respect to failure to pay at a rate that complies with the minimum wage. That said, each Plaintiff avers without contradiction that he was not paid for the last several weeks of work he performed at the Restaurant. The Plaintiffs thus did not receive, and are entitled to recover, minimum wages for that period.
D. Overtime Pay
A successful claim for unpaid overtime requires proof that the plaintiff performed the work, with the employer's actual or constructive knowledge, and was not properly compensated. Kuebel , 643 F.3d at 361. A plaintiff must also show that he worked 40 hours in a given workweek, together with some uncompensated time in excess of the 40 hours. See Lundy v. Catholic Health System Of Long Island Inc. , 711 F.3d 106, 114 (2d Cir. 2013). Both Leonardo and Octaviano set forth sworn testimony demonstrating they were not appropriately paid for work in excess of forty hours per week. Leonardo worked about 78 hours per week (Leonardo Decl. ¶ 9), and Octaviano worked 54 hours per week (Octaviano Decl. ¶ 9). As discussed above, Leonardo's weekly salary is presumed to cover only 40 hours of work. He thus worked 38 hours per week for which he should have received time-and-a-half in pay. And whereas Octaviano received an hourly rate, he was not paid time-and-a-half for the hours he worked in excess of forty each week. (Octaviano Decl. ¶ 12.) By his own admission, Robles worked only 27 hours per week. (Robles Decl. ¶ 9.) He thus did not work any overtime hours. Plaintiffs thus have established Defendants’ liability for failure to pay overtime as to both Leonardo and Octaviano, but not Robles.
E. Spread-Of-Hours
In addition to the minimum wage and overtime requirements, the NYLL entitles an employee to receive "spread-of-hours" pay, which is defined as "one hour's pay at the basic minimum hourly wage rate" for any workday that lasts longer than 10 hours. 12 NYCRR § 142-2.4(a) ; see also 12 NYCRR § 146-1.6(a) ("On each day on which the spread of hours exceeds 10, an employee shall receive one additional hour of pay at the basic minimum hourly rate."); Shahriar v. Smith & Wollensky Restaurant Group, Inc. , 659 F.3d 234, 242 (2d Cir. 2011) (citing 12 NYCRR § 146-1.6 and its predecessor).
Two of the Plaintiffs have established Defendants’ liability for failure to pay spread-of-hours pay. Leonardo attests to working six days a week for a period of 72 to 84 hours per week. That means he worked a minimum of twelve hours per day, six days a week, for which he should have received spread-of-hours pay but did not. Octaviano attests to having worked 48 hours over the course of six days, or 8 hours per day, and an additional 12 hours on Sundays twice a month. Octaviano thus is entitled to spread-of-hours pay for those two days a month. Robles worked only four-and-a-half hours per day; Defendants thus were not obligated to pay him for any spread of hours.
F. Wage Notice And Pay Statements
The NYLL requires employers to provide employees, at the time of hiring, with a wage notice containing certain basic information such as the rate of pay. NYLL § 195(1)(a). The NYLL also requires employers to give employees a wage statement with each payment of wages. NYLL § 195(3). Each wage statement must list, inter alia , the dates of work covered by that payment of wages, the employer's address and phone number, the applicable rate or rates of pay, applicable deductions, and any allowances claimed as part of the minimum wage. Id. Plaintiffs assert that throughout their employment with Defendants, they never received either the requisite notice or wage statements required by the NYLL. (Leonardo Decl. ¶¶ 14-16, Octaviano Decl. ¶¶ 3-15, Robles Decl. ¶¶ 14-16.) Accordingly, Plaintiffs have demonstrated that Defendants violated the NYLL wage notice and wage statement requirements with respect to each of them.
DAMAGES
As Defendants’ liability has been established, the Court turns to evaluating damages. The same burden shifting regime that applies to liability also applies to damages, and in the absence of employer records, an employee may establish their hours worked and pay received with "estimates based on his own recollection." Kuebel , 643 F.3d at 362 ; see also Hosking , 570 F. App'x at 32 ("the employee's burden in proving damages under the FLSA is minimal, particularly when the employer does not keep records"). As noted above, the Court does not have any payroll records before it to evaluate Plaintiffs’ claims and damages. Accordingly, Plaintiffs may establish the extent to which they were underpaid through their own recollections of their estimated hours and wages. Except where otherwise noted herein, the Court accepts Plaintiffs’ reported hours and pay as sufficient to establish damages.
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 Services. Inc. , No. 13-CV-7274, 2016 WL 369681, at *1 (S.D.N.Y. Jan. 27, 2016). The NYLL permits greater or equal recovery than the FLSA at all relevant times during Plaintiffs’ applicable employment with Defendants; accordingly, the Court will apply the NYLL for all damages calculations. Moreover, there are no damages at issue that Plaintiffs could recover only under the FLSA and not the NYLL.
The discussion that follows first briefly addresses the applicable damages period and then the following categories of damages: unpaid minimum wages, unpaid overtime, unpaid spread-of-hours, liquidated damages, wage notice and statement penalties, attorneys’ fees, and costs.
The Court's damages calculations differ in various respects from what is set forth in Plaintiffs’ Damages Schedule, not because of different math, but because the Court has applied the correct figures and formulations. For instance, each Plaintiff claims he was not paid at all for the last several weeks of his employment. The Damages Schedule, however, does not account for that. The Damages Schedule also erred in its determination of the regular rate of pay and overtime pay for Leonardo. The end result is that the Plaintiffs are due more in damages than the Damages Schedule calculated.
A. The Applicable Damages Period
The statute of limitations is six years for claims under the NYLL, three years for claims under the FLSA if a defendant's acts are willful, and two years if they are not. 29 U.S.C. § 255(a) ; NYLL § 663(3); see also Angamarca v. Pita Grill 7 Inc. , No. 11-CV-7777, 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012). The Complaint was filed on July 14, 2020. Plaintiffs allege that the Defendants acted willfully, and Defendants’ willfulness can be inferred from their default. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc. , No. 14-CV-10234, 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) ("Courts deem defendants’ actions willful where they have defaulted"), R. & R. adopted , 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) ; Santillan v. Henao , 822 F. Supp. 2d 284, 297 (E.D.N.Y. 2011) ("Many courts have found that a defendant's default, in itself, may suffice to support a finding of wilfulness."). The period for which Plaintiffs seek damages, as reflected in their declarations and their Damages Chart, begins on September 1, 2019, which is less than a year before Plaintiffs filed their Complaint and is thus well within the statute of limitations under both the FLSA and NYLL.
B. Unpaid Minimum Wages
Each Plaintiff is entitled to their minimum (or regular rate of pay if higher) wages for the period they received no pay at all. Using the regular rates of pay calculated above, each Plaintiff is due unpaid minimum wages as follows and summarized in the chart below. Leonardo: 40 hours × 10 weeks × $17.50 per hour equals $7,000. Octaviano: 40 hours × 6 weeks × $15.00 per hour equals $3,600. Robles: 27 hours × 8 weeks × $15.00 per hour equals $3,240.
Unpaid Minimum Wages
| Leonardo | $7,000 |
|---|---|
| Octaviano | $3,600 |
| Robles | $3,240 |
C. Overtime Pay
New York requires employers to pay employees "a wage rate of 1 ½ times the employee's regular rate for hours worked in excess of 40 hours in one workweek." 12 NYCRR § 146-1.4 ; see also Nakahata v. New York-Presbyterian Healthcare System, Inc. , 723 F.3d 192, 200 (2d Cir. 2013) (citing 12 NYCRR § 142-2.2 ).
As discussed above, Leonardo's regular rate of pay was $17.50 per hour (his weekly salary divided by 40 hours). His overtime rate thus should have been $26.25 per hour, but he received no pay for his overtime hours. He worked 38 overtime hours per week. Accordingly, his unpaid overtime is $26.25 × 38 hours × 23 weeks, which equals $22,942.50. Octaviano, who received $15.00 per hour should have received overtime pay at the rate of $22.50 hour but instead received only his regular rate of pay for his overtime hours. As he worked 14 overtime hours per week, his unpaid overtime is $7.50 (the difference between regular rate of pay and overtime pay) × 14 hours × 23 weeks, which equals $2,415. Robles worked less than 40 hours per week and therefore has no unpaid overtime damages. Each Plaintiff thus is entitled to unpaid overtime wages as summarized in the following chart:
Unpaid Overtime Wages
| Leonardo | $22,942.50 |
|---|---|
| Octaviano | $2,415 |
| Robles | $0 |
D. Spread-Of-Hours Pay
As discussed above, Leonardo should have been paid an extra hour as spread-of-hours pay for six days each week and two days a month, which averages out to 6.5 hours per week. Leonardo's unpaid spread-of-hours damages thus equals $15.00 (the basic minimum wage rate) × 6.5 hours × 23 weeks = $2,242.50. Octaviano should have receive spread-of-hours pay for two days each month or half an hour per week. His unpaid spread-of-hours damages thus equals $15.00 × .5 hours × 23 weeks = $172.50. Robles, who worked only four and a half hours a day, does not qualify for any spread-of-hours pay. Each Plaintiff thus is entitled to unpaid spread-of-hours as follows:
Unpaid Spread Of Hours
| Leonardo | $2,242.50 |
|---|---|
| Octaviano | $172.50 |
| Robles | $0 |
E. Liquidated Damages
Both the FLSA and the NYLL provide for liquidated damages. Under the FLSA, any employer who violates the minimum wage and overtime provisions of the FLSA is presumptively liable to the affected employees, in addition to back pay, for 100% of the unpaid wages as liquidated damages. 29 U.S.C. § 216(b) ("Any employer who violates the provisions ... of this title [relating to minimum wages and overtime compensation] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation ... and in an additional equal amount as liquidated damages."). Liquidated damages are awarded unless the employer demonstrates that they acted in good faith, in which case the decision to impose liquidated damages is discretionary. 29 U.S.C. § 260.
The NYLL rules are similar. See Garcia v. Giorgio's Brick Oven & Wine Bar , No. 11-CV-4689, 2012 WL 3339220, at *4 (S.D.N.Y. Aug. 15, 2012) ("Effective April 9, 2011, Sections 198(1-a) and 663(1) of the NYLL were amended to provide for liquidated damages equal to one-hundred percent of the amounts underpaid."), R. & R. adopted , 2012 WL 3893537 (S.D.N.Y. Sept. 7, 2012). A plaintiff may recover liquidated damages for unpaid wages under either the FLSA or the NYLL, whichever provides for a greater recovery. Morales v. Mw Bronx, Inc. , No. 15-CV-6296, 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). However, a plaintiff is not entitled to double recovery of liquidated damages. Rana v. Islam , 887 F.3d 118, 123 (2d Cir. 2018) (per curiam) ("We therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages for the same course of conduct.").
Imposition of liquidated damages in this case is mandatory. There is no proof before the Court that Defendants acted in good faith. To the contrary, the facts are indicative of willfulness, particularly given Defendants’ failure to maintain records, the violations established by default, and Defendants’ failure to participate in this case. Accordingly, Plaintiffs are each entitled to recover liquidated damages equal to 100% of the amount owed to them in unpaid wages, which includes unpaid minimum wages, overtime wages, and spread-of-hours. See Villanueva v. 179 Third Avenue Rest, Inc. , 500 F. Supp.3d 219, 239 (S.D.N.Y. 2020) ("The amount of liquidated damages is equal to 100% of the amount owed to the Plaintiffs in unpaid wages, which includes unpaid minimum wage, unpaid overtime, and unpaid spread-of-hours"). Leonardo's total unpaid wages are $32,185, Octaviano's are $6,187.50, and Robles are $3,240. Each Plaintiff thus is entitled to liquidated damages in the following amounts:
Liquidated Wages
| Leonardo | $32,185 |
|---|---|
| Octaviano | $6,187.50 |
| Robles | $3,240 |
The NYLL requires employers to provide employees, at the time of hiring, with a wage notice containing basic information such as rate of pay. NYLL § 195(1)(a). The penalty for an employer's failure to provide the requisite wage notice within ten business days of the first day of employment is $50 for each workday that a violation occurs or continues to occur, not to exceed a total of $5,000. NYLL § 198(1-b). The NYLL also requires employers to provide employees with a wage statement with each payment of wages. NYLL § 195(3). An employee can recover $250 for each workday that a wage statement violation occurs or continues to occur, not to exceed a total of $5,000. NYLL § 198(1-d).
Here, Defendants failed to provide Plaintiffs with both the requisite wage notice and wage statements over a period of time that surpasses the statutory penalty caps. Accordingly, each Plaintiff is entitled to a total of $10,000.00 in statutory penalties:
The $5,000 cap for failure to provide a wage notice would be reached after 100 days (at $50.00 per day). The $5,000 cap for failure to provide wage statements would be reached after 20 days (at $250 per day). Each of the three Plaintiffs worked at the Restaurant from mid-2018 to February 2020, well in excess of 100 days.
Wage Notice And Statement Penalties
| Leonardo | $10,000 |
|---|---|
| Octaviano | $10,000 |
| Robles | $10,000 |
G. Pre-Judgment Interest
Under the FLSA, awards of federal liquidated damages serve, in part, as a form of compensatory pre-judgment interest. See, e.g. , Galeana v. Lemongrass on Broadway Corp. , 120 F. Supp.3d 306, 321 (S.D.N.Y. 2014) ; Yu G. Ke v. Saigon Grill, Inc. , 595 F. Supp.2d 240, 261 (S.D.N.Y. 2008). Thus, a plaintiff who receives FLSA liquidated damages may not also receive pre-judgment interest. Brock v. Superior Care, Inc. , 840 F.2d 1054, 1064 (2d Cir. 1988).
In contrast, liquidated damages under the NYLL are considered punitive in nature, thus enabling a plaintiff to recover both liquidated damages and pre-judgment interest. Yu G. Ke, 595 F. Supp. 2d at 262 (citing Reilly v. Natwest Markets Group, Inc. , 181 F.3d 253, 265 (2d Cir. 1999) ); Ting Yao Lin v. Hayashi Ya II, Inc. , No. 08-CV-6071, 2009 WL 289653, at *7 (S.D.N.Y. Jan. 30, 2009), ("The Second Circuit has held that even where a plaintiff is awarded liquidated damages under New York Labor Law, prejudgment interest ... is appropriate."), R. & R. adopted sub nom., Yao Lin v. Hayashi Ya II, Inc. , 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009). Accordingly, each Plaintiff is eligible to recover pre-judgment interest on his state law unpaid wage claims at the statutory rate of 9% per annum. See NY CPLR §§ 5001, 5004 ; see, e.g. , Gurung v. Malhotra , 851 F. Supp.2d 583, 594 (S.D.N.Y. 2012) (applying pre-judgment interest rate to NYLL claims); Santillan , 822 F. Supp. 2d at 298 (same).
"The Court has discretion to choose a reasonable date from which prejudgment interest should accrue." Junmin Shen v. Number One Fresco Tortillas, Inc. , No. 16-CV-2015, 2018 WL 6712771, at *14 (S.D.N.Y. Nov. 26, 2018) (citing Santana v. Latino Express Restaurants, Inc. , 198 F. Supp.3d 285, 294-95 (S.D.N.Y. 2016) ). Where, as here, unpaid wages accumulate over time rather than all being payable at once, courts "often choose the midpoint of the plaintiff's employment within the limitations period." Junmin Shen , 2018 WL 6712771 at *14 (quoting Gamero , 272 F. Supp. 3d at 515 (internal quotation marks omitted)). Here, Plaintiffs seek unpaid wages for only a portion of their employment, specifically the period starting September 1, 2019. The appropriate midpoint thus should be midway between September 1, 2019 and the date of Judgment.
Plaintiffs should be awarded pre-judgment interest on their unpaid wage damages (but not on liquidated damages or wage notice and statement penalties) running from the midpoint between September 1, 2019 and the date of judgment at the statutory rate, or as summarized in the following chart:
Pre-Judgment Interest
| Unpaid Wages | Start Date | Percentage | |
|---|---|---|---|
| Leonardo | $32,185 | Midpoint between Sept. 1, 2019 and Judgment | 9% |
| Octaviano | $6,187.50 | Same | Same |
| Robles | $3,240 | Same | Same |
H. Attorneys’ Fees
Plaintiff seeks compensation for $2,032.50 in attorneys’ fees. (Huey Decl. ¶ 22.) The billing records submitted in support of that request total fees (exclusive of costs) of $2,570. (Huey Decl. Ex. F.) Although Plaintiffs’ counsel does not provide an explanation for that discrepancy, the Court infers that the lesser amount was mistakenly taken from the amount identified on the billing records before the Court requested and the Plaintiffs submitted supplemental damages information. (See Declaration of Michael Faillace, Dkt 39 Ex. F.)
The FLSA and NYLL provide for an award of reasonable attorneys’ fees and costs to a prevailing plaintiff in a wage-and-hour action such as this one. 29 U.S.C. § 216(b) ; N.Y. Lab. Law § 198 -1; Callari v. Blackman Plumbing Supply, Inc. , No. 11-CV-3655, 2020 WL 2771008, at *6 (E.D.N.Y. May 4, 2020) ("Both the FLSA and NYLL are fee-shifting statutes which entitle a plaintiff to an award of reasonable attorney's fees and costs in wage-and-hour actions."), R. & R. adopted , 2020 WL 2769266 (E.D.N.Y. May 28, 2020).
The traditional approach to determining a fee award is the "lodestar" calculation, which is the number of hours expended multiplied by a reasonable hourly rate. See Healey v. Leavitt , 485 F.3d 63, 71 (2d Cir. 2007) ; Tackie v. Keff Enterprises LLC , No. 14-CV-2074, 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014). The Second Circuit has held that "the lodestar ... creates a ‘presumptively reasonable fee.’ " Millea v. Metro-North Railroad Co. , 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany , 522 F.3d 182, 183 (2d Cir. 2008) ; and then citing Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 552, 130 S. Ct. 1662, 1673, 176 L.Ed.2d 494 (2010) ); see also Stanczyk v. City Of New York , 752 F.3d 273, 284-85 (2d Cir. 2014) (reaffirming Millea ). To arrive at a lodestar calculation, "[t]he party seeking an award of [attorneys’] fees should submit evidence supporting the hours worked and rates claimed." Hensley v. Eckerhart , 461 U.S. 424, 433, 103 S. Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Plaintiff has submitted such evidence here, consisting of contemporaneous records of time expended by specific attorneys. (Huey Decl. Ex. F.)
Hourly Rates: Courts assess the reasonableness of a proposed hourly rate by considering the prevailing market rate for lawyers in the district in which the ruling court sits. Polk v. New York State Department of Correctional Services , 722 F.2d 23, 25 (2d Cir. 1983). "The rates used by the court should be current rather than historic hourly rates." Reiter v. Metropolitan Transportation Authority Of New York , 457 F.3d 224, 232 (2d Cir. 2006) (internal quotation marks omitted). "[C]ourts may conduct an empirical inquiry based on the parties’ evidence or may rely on the court's own familiarity with the rates if no such evidence is submitted." Wong v. Hunda Glass Corp. , No. 09-CV-4402, 2010 WL 3452417, at *2 (S.D.N.Y. Sept. 1, 2010) (internal quotation marks omitted). Additionally, "the range of rates that a plaintiff's counsel actually charges their clients ... is obviously strong evidence of what the market will bear." Rozell v. Ross-Holst , 576 F. Supp. 2d 527, 544 (S.D.N.Y. 2008) ; see also Lilly v. County Of Orange , 910 F. Supp. 945, 949 (S.D.N.Y. 1996) ("The actual rate that counsel can command in the market place is evidence of the prevailing market rate").
Plaintiffs were represented in this action until recently by Michael Faillace & Associates, P.C. and seek reimbursement of fees for the work of two attorneys from that firm: Michael Faillace, who billed at an hourly rate of $450 for 2.4 hours; and Gennadiy Naydenskiy, who billed at an hourly rate of $350 for 1.4 hours. The fees sought also include a paralegal at the rate of $125 per hour for 8 hours. (Huey Decl. ¶ 21 and Ex. F.) The Court is familiar with the experience and credentials of both Mr. Faillace and Mr. Naydenskiy as they have frequently appeared before the Court in wage and hour cases such as the instant one.
On November 4, 2021, new counsel Catalina Sojo appeared for Plaintiffs. (Dkt 43.) On November 6, 2021 the Faillace firm moved to withdraw as counsel, which the Court granted on November 8, 2021. (Dkts. 45, 46.)
Plaintiffs provide a billing rate of $375 for a third attorney, Khalil Huey, but the billing records do not show any time charged for his work despite submission of a supplemental declaration under his name. (See Huey Decl. Ex. F.)
Mr. Faillace recently was suspended from the practice of law for two years.
The attorney rates requested are on the high end. See, e.g. , Shanfa Li v. Chinatown Take-Out Inc., No. 16-CV-7787, 2019 WL 3715086, at *6 (S.D.N.Y. Aug. 7, 2019) ("Experienced litigators and partners are commonly awarded between $300 and $400 per hour in FLSA cases within the Southern District of New York"), aff'd , 812 F. App'x 49 (2d Cir. 2020) ; Bisono v. TDL Restoration, Inc. , No. 17-CV-9431, 2019 WL 4733599, at *2 (S.D.N.Y. Sept. 27, 2019) (same); Villar v. Prana Hospitality, Inc. , No. 14-CV-8211, 2019 WL 1387412, at *10-11 (S.D.N.Y. Feb. 4, 2019) (approving hourly fees of $350/hour and $400/hour for two attorneys on FLSA matter), R. & R. adopted , 2019 WL 1382803 (S.D.N.Y. March 27, 2019).
Moreover, the work product is sloppy, incomplete, and internally contradictory. Examples include: the Complaint alleges that at all relevant times Plaintiffs worked for Defendants in excess of 40 hours per week without overtime pay (Compl. ¶ 5) while at the same time alleging that Plaintiff Robles worked only 27 hours per week (Compl. ¶ 73). Plaintiffs’ default judgment submission omitted key substantive pages from the declarations of two of the plaintiffs, (Dkt 39 Ex. B), which was remedied only after the Court detected the omission and ordered counsel to file corrected declarations. The initial attorney affirmation submitted in support of Plaintiffs’ motion for default judgment attached several exhibits but neither identified them or confirmed that they are complete and accurate copies. The damages chart originally submitted with Plaintiffs’ default judgment filing was designated as a privileged settlement communication and subject to revision/correction. (Dkt. 39 Ex. E.)
Accordingly, the Court finds the rates requested for Plaintiff's attorneys are not reasonable and that Mr. Faillace's rate for this case should be reduced to $300 per hour, and Mr. Naydenskiy's rate to $250 per hour.
Hours Worked: To determine the compensable hours, "the court must examine the hours expended by counsel and the value of the work product of the particular expenditures to the client's case." Tlacoapa v. Carregal , 386 F. Supp. 2d 362, 371 (S.D.N.Y. 2005) (citing Gierlinger v. Gleason , 160 F.3d 858, 873, 876 (2d Cir. 1998) ). "In making this examination, the district court does not play the role of an uninformed arbiter but may look to its own familiarity with the case and its experience generally as well as to the evidentiary submissions and arguments of the parties." Gierlinger , 160 F.3d at 876. (quoting DiFilippo v. Morizio, 759 F.2d 231, 235–36 (2d Cir. 1985) ). "The relevant issue ... is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures." Grant v. Martinez , 973 F.2d 96, 99 (2d Cir. 1992) ; see also Mugavero v. Arms Acres, Inc. , No. 03-CV-5724, 2010 WL 451045, at *6 (S.D.N.Y. Feb. 9, 2010) (same). A court thus should exclude from the lodestar calculation "excessive, redundant or otherwise unnecessary hours." Quaratino v. Tiffany & Co. , 166 F.3d 422, 425 (2d Cir. 1999) ; see also Luciano v. Olsten Corp. , 109 F.3d 111, 116 (2d Cir. 1997) ("If the district court concludes that any expenditure of time was unreasonable, it should exclude these hours from the lodestar calculation").
A prevailing party can recover fees for several categories of work, including failed efforts otherwise reasonably pursued. See, e.g. , Gortat v. Capala Brothers, Inc. , 621 F. App'x. 19, 23 (2d Cir. 2015) ("there is no rule that [p]laintiffs need achieve total victory on every motion in pursuit of a successful claim in order to be compensated for the full number of hours spent litigating that claim"); Ni , 2016 WL 369681 at *8 (awarding attorneys’ fees for hours spent on discovery, discovery-related motions, failed settlement negotiations, and summary judgment motions); Easterly v. Tri-Star Transportation Corp. , No. 11-CV-6365, 2015 WL 337565, at *10 (S.D.N.Y. Jan. 23, 2015) (approving fees for time spent, inter alia , preparing pleadings prior to the commencement of the action, discovery, discovery disputes, summary judgment motions, and a damages inquest).
The time records submitted reflect that Plaintiffs’ attorneys and paralegals worked a modest 11.8 hours. The Court finds the overall number of hours to be reasonable for the period of preparing to file a complaint and filing for default in a wage-and-hour case such as this one. But having reviewed the records, the Court has some concerns, particularly regarding the entries of Mr. Faillace. There are eight separate entries for him, and each one is for the same amount of time of .3 hours. The Court finds it odd that every entry is for the exact same amount of time. Additionally, Mr. Faillace's entries are block entries that do not distinguish the time performed for each task and include administrative tasks such as filing that are not reasonable for a partner to bill. The Court therefore finds that the hours billed by Mr. Faillace should be reduced by a third, resulting in 1.6 hours.
Additionally, the time spent on submitting the supplemental damages information, which the Court requested, was incurred to remedy the lapses in the initial default filing. Plaintiffs should not be reimbursed for attorneys’ fees incurred to remedy those attorneys’ errant work product. Accordingly, attorneys’ fees for that remedial work should not be awarded.
Considering the adjustments explained above, the Court finds that Plaintiffs should be awarded fees of $1,292.50.
The total fee number of $1,292.50 is comprised of the discounted fees for Mr. Faillace ($300 × 1.6 equals $480) and Mr. Naydenskiy ($250 × 1.4 equals $350) together with the paralegal fees (3.7 × $125 equals $462.50). As explained above, the hours do not include the time spent on the supplemental damages submission.
I. Costs
Plaintiff seeks $622.80 in costs for the court filing fee and costs or serving Defendants with the complaint and summons. (Huey Decl. ¶ 22 and Ex. F.) Those expenses are routinely recoverable. See e.g. , Angamarca , 2012 WL 3578781 at *14 (approving $350 court filing fee and $600 in service of process fees for default judgment in FLSA and NYLL case); Malletier v. Artex Creative International Corp. , 687 F. Supp. 2d 347, 365 (S.D.N.Y. 2010) (costs such as filing fees, shipping costs, and research fees are "typically awarded when a defendant defaults") (citing Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany , 369 F.3d 91, 98 (2d Cir. 2004) ); Tips Exports, Inc. v. Music Mahal, Inc., No. 01-CV-5412, 2007 WL 962036 at *11 (E.D.N.Y. Mar. 27, 2007) (reimbursing plaintiff for process servers, postage and photocopying); Shannon v. Fireman's Fund Insurance Co., 156 F. Supp. 2d 279, 305 (S.D.N.Y. 2001) (reimbursing plaintiff for filing fees and shipping costs). Costs associated with copying, docket fees, and other miscellaneous fees may also be recovered pursuant to Local Civil Rule 54.1.
The Court has reviewed Plaintiffs’ submissions and finds the costs set forth are recoverable. Accordingly, Plaintiffs should be awarded $622.80 in costs.
CONCLUSION
For the foregoing reasons, I recommend entering default judgment in favor of Plaintiffs and against Defendants as summarized in the following chart, together with attorneys’ fees in the amount of $1,292.50 and costs in the amount of $622.80 :
| Leonardo | Octaviano | Robles | |
|---|---|---|---|
| Minimum Wages | $7,000 | $3,600 | $3,240 |
| Overtime Wages | $22,942.50 | $2,415 | $0 |
| Spread-of-Hours | $2,242.50 | $172.50 | $0 |
| Liquidated Damages | $32,185 | $6,187.50 | $3,240 |
| NYLL Penalties | $10,000 | $10,000 | $10,000 |
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Alison J. Nathan, United States Courthouse, 40 Foley Square, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.