Opinion
15 Civ. 10078 (LGS) (GWG)
06-12-2019
GUADALUPE DE LA CRUZ MORENO and ROSA TOLEDO CABRERA, individually and in behalf of all other persons similarly situated, Plaintiffs, v. HAPPY ANGEL NAIL SPA INC. and WANG DONG, jointly and severally, Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Guadalupe De La Cruz Moreno and Rosa Toledo Cabrera brought this action against defendants Happy Angel Nail Spa Inc. and Wang Dong to recover unpaid wages and other damages arising out of defendants' violations of the Fair Labor Standards Act ("FLSA"), the New York Labor Law ("NYLL"), and New York state labor regulations. Plaintiffs now seek a default judgment against defendants. Judgment should be entered against defendants in the amounts described below.
I. BACKGROUND
A. Procedural Background
Plaintiffs filed the complaint in this action on December 28, 2015. Complaint and Jury Demand, filed Dec. 28, 2015 (Docket # 1) ("Compl."). Defendants were served as of April 6, 2016. See Affidavit of Service, filed Feb. 25, 2016 (Docket # 11); Affidavit of Service, filed Apr. 6, 2016 (Docket # 18). On August 19, 2016, defendants, through counsel, answered the complaint. Answer, filed Aug. 19, 2016 (Docket # 34). Several months later, however, defendants' counsel moved to withdraw and that motion was granted. See Notice of Motion to Withdraw as Counsel of Record and Stay Proceeding, filed Nov. 21, 2016 (Docket # 42); Order, filed Dec. 9, 2016 (Docket # 45) ("December 9 Order"). At the argument on the motion to withdraw, the Court explained to Wang Dong that he could not proceed pro se on behalf of Happy Angel Nail Spa Inc., and that "his decision not to hire an attorney for Happy Angel Nail Spa, Inc. could result in a default judgment against Happy Angel Nail Spa, Inc." December 9 Order.
Plaintiffs state that Happy Angel Nail Spa Inc. dissolved on March 2, 2017. Affirmation in Support of Order to Show Cause for Default Judgment, filed Oct. 17, 2018 (Docket # 99), ¶ 7.
Some discovery then took place with Wang Dong proceeding pro se. See, e.g., Letter from Brandon D. Sherr, filed Aug. 7, 2017 (Docket # 65). At one point, plaintiffs sought sanctions against Wang Dong for leaving his deposition early. Letter from Brandon D. Sherr, filed Jan. 5, 2018 (Docket # 70). The Court ordered Wang Dong to respond to this application. Order, filed Jan. 8, 2018 (Docket # 71). Wang Dong sent a letter explaining that he had child care issues and that he was unable to speak English. Letter from Wang Dong, filed Jan. 23, 2018 (Docket # 73). The Court denied plaintiffs' request for sanctions and directed plaintiffs to communicate with Wang Dong via a Mandarin interpreter in order to complete his deposition and file the required pretrial statement. Order, filed Jan. 24, 2018 (Docket # 74).
The parties missed a number of deadlines for filing the pretrial statement, with plaintiffs invariably seeking additional time after the deadline had been missed and after the Court had issued an order directing them to explain their conduct. See Order, filed Apr. 3, 2018 (Docket # 77); Order, filed Apr. 30, 2018 (Docket # 80); Order, filed May 29, 2018 (Docket # 83). Plaintiffs then filed a letter seeking sanctions against Wang Dong for failing to cooperate in the scheduling of his deposition and in the filing of the required pretrial statement. Letter from Brandon D. Sherr, filed June 19, 2018 (Docket # 89). Judge Schofield ordered defendants to respond to the letter and that a conference be held on July 19, 2018. Order, filed June 20, 2018 (Docket # 91). It appears that Wang Dong did not appear at this conference or respond to the order inasmuch as Judge Schofield subsequently directed plaintiffs to make an application for a default judgment. See Order, filed Sept. 12, 2018 (Docket # 92). Plaintiffs applied for a certificate of default against Wang Dong on the ground that Judge Schofield had "ordered the defendants' answer struck as a sanction pursuant to rules 16(f)(1)(C) and 30(d)(2) of the Federal Rules of Civil Procedure." Affirmation in Support of Request for Certificate of Default, filed Oct. 12, 2018 (Docket # 94), ¶ 5. The Clerk issued a certificate of default against Wang Dong on October 12, 2018. Clerk's Certificate of Default, filed Oct. 12, 2018 (Docket # 95).
On October 17, 2018, plaintiffs filed this motion for default judgment against defendants pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. On the same date, Judge Schofield ordered Wang Dong to show cause why an order should not be issued pursuant to Rule 55(b)(2) granting a default judgment against him, and also ordered plaintiffs to mail a copy of the order and relevant papers to Wang Dong pursuant to Local Civil Rule 55.2(c). Order to Show Cause, filed Oct. 17, 2018 (Docket # 103). Judge Schofield filed a Second Amended Order to Show Cause on November 28, 2018, following plaintiffs' second request for an extension of time to serve the Order to Show Cause and supporting papers on Wang Dong. Second Amended Order to Show Cause, filed Nov. 28, 2018 (Docket # 108). That Order directed plaintiffs to serve Wang Dong with the relevant papers by December 3, 2018, and a hearing regarding the Order to Show Cause was set for December 13, 2018. Id. On January 4, 2019, plaintiffs filed a Certificate of Service affirming that copies of the Second Amended Order to Show Cause, supporting documentation, the complaint, the Clerk's Certificate of Default, and the plaintiffs' Proposed Judgment were served upon Wang Dong by first class mail. Certificate of Service, filed Jan. 4, 2019 (Docket # 114). Plaintiffs also filed a letter regarding their computation of prejudgment interest. Letter from Brandon D. Sherr, filed Jan. 4, 2019 (Docket # 115).
See Affirmation in Support of Order to Show Cause for Default Judgment, filed Oct. 17, 2018 (Docket # 99) ("Pl. Mem."); Affidavit of Plaintiff in Support of Motion for Default Judgment, filed Oct. 17, 2018 (Docket # 100) ("Moreno Aff."); Affidavit of Plaintiff in Support of Motion for Default Judgment, filed Oct. 17, 2018 (Docket # 101) ("Cabrera Aff."); Proposed Judgment, filed Oct. 17, 2018 (Docket # 102).
Because plaintiffs failed to appear at a hearing on the order to show cause, Judge Schofield dismissed the case for failure to prosecute. Order, filed Dec. 13, 2018 (Docket # 109). Later that day, plaintiffs filed a memorandum explaining that the missed hearing was due to a clerical error, see Notice of Motion for Relief from Judgment or Order, filed Dec. 13, 2018 (Docket # 110); Memorandum of Law in Support of Motion for Relief from Judgment or Order, filed Dec. 13, 2018 (Docket # 111); Affirmation in Support of Motion for Relief from Judgment or Order, filed Dec. 13, 2018 (Docket # 112), and the court granted plaintiffs' motion to vacate the dismissal, see Order, filed Dec. 14, 2018 (Docket # 113).
Plaintiffs later filed an Amended Certificate of Service in response to the Court's order regarding whether service upon Wang Dong was made at the proper address. See Order, filed Apr. 10, 2019 (Docket # 117); Amended Certificate of Service, filed Apr. 10, 2019 (Docket # 118); Letter from Brandon D. Sherr, filed Apr. 10, 2019 (Docket # 119).
While there has been no certificate of default issued as to Happy Nail Spa, Inc., that defendant is deemed to be in default because it is a corporation not represented by counsel. See, e.g., Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983); accord First Tech. Capital, Inc. v. Airborne, Inc., 2019 WL 1995546, at *2 (W.D.N.Y. May 6, 2019) ("because Defendant [corporation] failed to secure legal counsel and file a notice of appearance within the prescribed time permitted by the Court, Defendant is in default for its failure to 'otherwise defend' against this action") (citations omitted); Ideavillage Prod. Corp. v. Bling Boutique Store, 2018 WL 3559085, at *2 (S.D.N.Y. July 24, 2018) ("Because corporations cannot proceed pro se, default is warranted when a corporation is not represented by an attorney.") (citations omitted); Carlone v. Lion & the Bull Films, Inc., 861 F. Supp. 2d 312, 318 (S.D.N.Y. 2012) ("A corporation may not appear pro se, but must retain counsel to avoid default.") (citation omitted); see also Cabrera v. Canela, 2018 WL 3742686, at *2 (E.D.N.Y. Apr. 19, 2018) ("the court need not go through the formal step of ordering the Clerk to enter the default, as 'a district judge also possesses the inherent power to enter a default'") (quoting City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011)).
Because the default establishes defendants' liability, see, e.g., Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 849, 854 (2d Cir. 1995), the only issue remaining is whether plaintiffs have supplied adequate proof of their damages, see GAKM Res. LLC v. Jaylyn Sales Inc., 2009 WL 2150891, at *2 (S.D.N.Y. July 20, 2009) ("A default judgment that is entered on the well-pleaded allegations in a complaint establishes a defendant's liability, . . . and the sole issue that remains before the court is whether the plaintiff has provided adequate support for the relief it seeks.") (citations omitted); accord Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). The Second Circuit has held that an inquest into damages may be held on the basis of documentary evidence alone, "as long as [the court has] ensured that there was a basis for the damages specified in [the] default judgment." Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991), cert. denied, 503 U.S. 1006 (1992). Plaintiffs' submissions consist of a memorandum containing damages calculations, and sworn affidavits from the two plaintiffs. As these submissions provide a sufficient basis for an award of damages, no evidentiary hearing is required. The findings of fact herein are based on the allegations in the complaint regarding liability, and the admissible evidence regarding damages in plaintiffs' submissions.
B. Facts Relating to Liability
In light of the defendants' default, the Court accepts as true the well-pleaded allegations in the complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F. Supp. 2d 434, 436 (S.D.N.Y. 2009) ("When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true. The Court must conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.") (internal citations, alterations, and quotation marks omitted).
Defendant Happy Angel Nail Spa Inc. was a New York business corporation, which operated a nail salon in Manhattan. Compl. ¶¶ 9, 13; Moreno Aff. ¶ 3; Cabrera Aff. ¶ 3. Defendant Wang Dong was the "owner, shareholder, officer, or manager" of Happy Angel Nail Spa Inc. Compl. ¶ 14.
Plaintiff Moreno was employed by the defendants as a "manicurist and masseuse" from approximately February 2013 to February 2014. Id. ¶¶ 18-19. Moreno worked six days per week for around 63 hours per week and was paid a rate of approximately $70.00 per day in cash. Id. ¶¶ 20-22. Moreno wore a uniform in the form of an apron, and defendants required her to purchase a box of masks and two boxes of gloves per week at the cost of $21.00 per week. Moreno Aff. ¶ 9. Plaintiff Cabrera was also employed by the defendants as a "manicurist and masseuse" and worked from approximately March 2013 to November 2015. Compl. ¶¶ 24-25. From March 2013 to September 2015, Cabrera worked five days per week for around 50 hours per week and was paid a rate of approximately $70.00 per day in cash. Id. ¶¶ 26-28. From September 2015 to November 2015, Cabrera worked between two and three days per week for around 20 to 30 hours per week, and was paid in cash at the same rate. Id. Cabrera was required to purchase and wear an apron as part of her job, and spent $40.00 ($20.00 each) on two aprons. See Compl. ¶ 30; Cabrera Aff. ¶ 9. Cabrera was also required to purchase a box of masks and two boxes of gloves per week at a cost of $21.00 per week. Cabrera Aff. ¶ 9.
Cabrera's affidavit details the breakdown of her work schedule. From March 2013 through September 17, 2015, she worked one week per month for 50 hours per week (five days per week), and three weeks per month for 60 hours per week (six days per week). Cabrera Aff. ¶ 6. She then worked 60 hours from September 18, 2015, to September 24, 2015 (over six days); 30 hours from September 25, 2015, to October 1, 2015 (over three days); and 20 hours per week over the course of five weeks from October 2, 2015, to November 6, 2015 (two days per week). Id.
During the plaintiffs' employment with defendants, defendants failed to pay plaintiffs the applicable minimum wage. Compl. ¶ 31. Also, when plaintiffs worked more than 40 hours in a work week, they were not paid the proper overtime wage. Id. ¶ 32. Further, while plaintiffs were required to purchase their work uniforms, defendants did not reimburse plaintiffs for any associated costs, nor did defendants launder or maintain the uniforms. Id. ¶¶ 33-34. Finally, defendants failed to provide plaintiffs with a required notice and acknowledgment when they were hired and failed to provide plaintiffs with proper wage statements. Id. ¶¶ 35-37; Moreno Aff. ¶¶ 13-14; Cabrera Aff. ¶¶ 13-14.
Plaintiffs allege that both Happy Angel Nail Spa Inc. and Wang Dong were their employer and thus are liable under the FLSA and NYLL. See Compl. ¶¶ 15, 17, 40. The complaint alleges that Wang Dong, as the "owner, shareholder, officer, or manager" of Happy Angel Nail Spa Inc., "actively participated in the business of [Happy Nail Spa Inc.]," set wage and hour policies, managed the company's business in general, and had the authority to hire, fire, direct, and control employees who worked at Happy Nail Spa Inc. See id. ¶¶ 14-16; Moreno Aff. ¶ 2; Cabrera Aff. ¶ 2.
These allegations are sufficient to show that Wang Dong was plaintiffs' employer. See N.Y. Lab. L. § 2(6), (7); 29 U.S.C. §§ 203(a), (d); see generally Garcia v. La Revise Assocs. LLC, 2011 WL 135009, at *5 (S.D.N.Y. Jan. 13, 2011).
II. DISCUSSION
The complaint in this matter was filed on December 28, 2015. See Compl. The statute of limitations to bring an FLSA claim is either two or three years, depending on whether the violation was "willful," while the statute of limitations under the NYLL is six years. 29 U.S.C. § 255(a); N.Y. Lab. L. § 663(3). Here, as explained below, plaintiffs are entitled to greater damages under the NYLL so it is not necessary to address the willfulness issue under the FLSA. We discuss each category of damages separately.
While plaintiffs also seek certain liquidated damages under the FLSA, they are not entitled to such damages for the reasons stated in section II.C below.
A. Back Pay - Minimum Wages and Overtime Owed
Failure to pay the required minimum wage is actionable under both the FLSA and the NYLL. See 29 U.S.C. § 216; N.Y. Lab. L. § 663. Plaintiffs have proffered evidence, in the form of sworn affidavits, of the hours they worked, the wage they received per day, the number of days per week they worked, and the actual weeks they worked. See Moreno Aff. ¶¶ 4, 6, 7; Cabrera Aff. ¶¶ 4, 6, 7. Moreno affirms that she worked for defendants from February 2013 to February 2014. Moreno Aff. ¶ 4. She worked approximately 63 hours per week and six days per week. Id. ¶ 6. Defendants paid her a flat rate of $70 per day in cash. Id. ¶ 7. Cabrera affirms that she worked for defendants from March 2013 to November 2015. Cabrera Aff. ¶ 4. She explains how in different periods and at different times she worked between two to six days per week and for 20 to 60 hours per work. Id. ¶ 6. Defendants also paid her a flat rate of $70 per day in cash. Id. ¶¶ 7-8.
Thus, from February 2013 to February 2014, Moreno was paid at an effective hourly rate of approximately $6.67 per hour. Moreno Aff. ¶¶ 4, 6, 7; Pl. Mem. at 12; see also 29 C.F.R. § 778.112 (providing method of calculating regular rate and overtime rate where employee is "paid a flat sum for a day's work"); N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.16 ("When an employee is paid on . . . any basis other than hourly rate, the regular hourly wage rate shall be determined by dividing the total hours worked during the week into the employee's total earnings."). For the bulk of her employment, Cabrera was paid an effective hourly rate of approximately $7.00 per hour. Cabrera Aff. ¶¶ 4, 6, 7; Pl. Mem. at 13-15. These wages were below the federal and state minimum wages at the start of each plaintiff's employment with defendants. See 29 U.S.C. § 206(a)(1)(C) (providing a federal minimum wage of $7.25 per hour as of July 24, 2009); N.Y. Lab. L. § 652 (2013) (providing a minium wage of $7.15 "or, if greater, such other wage as may be established by federal law pursuant to 29 U.S.C. § 206 or its successors" as of January 1, 2007). Additionally, the New York state minimum wage increased during the plaintiffs' employment. See N.Y. Lab. L. § 652 (increase in the minimum wage to $8.00 per hour beginning December 31, 2013, and an increase to $8.75 per hour beginning December 31, 2014). Accordingly, defendants were in violation of the minimum wage provisions of the FLSA and the NYLL.
Both the FLSA and NYLL also require that an employee be paid an overtime rate not less than one and one-half times his or her regular rate for hours worked in excess of 40 hours per work week. See 29 U.S.C. § 207(a)(1); N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2; Changxing Li v. Kai Xiang Dong, 2017 WL 892611, at *4 (S.D.N.Y. Mar. 7, 2017); Rios v. Neighborhood Const. Corp., 2009 WL 3335354, at *1 (S.D.N.Y. Oct. 14, 2009); Bennett v. Progressive Corp., 225 F. Supp. 2d 190, 215 (N.D.N.Y. 2002). Here, plaintiffs' regular rates were consistently below the minimum wage required in New York. See N.Y. Lab. L. § 652. Thus, plaintiffs' overtime rates are calculated with reference to the minimum wage to which they were actually entitled. See 29 C.F.R. § 778.100 (regular rate, for purposes of calculating overtime, may not be less than statutory minimum wage); N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2 (providing that overtime rate should be computed in the same manner as under the FLSA).
However, while the period of FLSA and NYLL claims overlap, the claims for unpaid minimum wages and overtime wages are not identical because the damages for the NYLL minimum wage violations are greater than the damages for the FLSA minimum wage violations. Accordingly, damages for wage violations should be awarded pursuant to the NYLL. See Hernandez v. Delta Deli Mkt. Inc., 2019 WL 643735, at *6 (E.D.N.Y. Feb. 12, 2019) ("The federal minimum wage does not preempt the state minimum wage. . . . A plaintiff may recover under whichever statute provides the highest measure of damages.") (citations omitted); Changxing Li v. Kai Xiang Dong, 2017 WL 892611, at *4 (S.D.N.Y. Mar. 7, 2017) ("Where the state minimum wage exceeds the federal minimum wage, federal law does not preempt the higher state minimum."); Wicaksono v. XYZ 48 Corp., 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) ("[P]laintiffs are entitled to recover whichever minimum wage—state or federal—was the highest at any given period of their employment.") (citing cases).
Plaintiffs have provided worksheets containing damages calculations for the unpaid minimum wages and overtime owed. See Pl. Mem. at 12 (Table 1: Actual Damages for Guadalupe De La Cruz Moreno); id. at 13-17 (Table 2: Actual Damages for Rosa Toledo Cabrera). We have reviewed these tables and while there are some minor discrepancies due to rounding, they accurately reflect the plaintiffs' claims. Accordingly, we accept the accuracy of the tables for purposes of this motion, especially "in the absence of any rebuttal evidence proffered by Defendants." Rios, 2009 WL 3335354, at *1 (citation omitted). The total amount in minimum wage and overtime violation payments is $6744.98 for Moreno and $17,041.25 for Cabrera. See Pl. Mem. at 12, 15, 17.
B. Failure to Reimburse Uniform Costs and Pay Maintenance
Under New York regulations "[n]o allowance for the supply, maintenance or laundering of required uniforms shall be permitted as part of the minimum wage. Where an employee purchases a required uniform, he shall be reimbursed by the employer for the cost thereof not later than the time of the next payment of wages." N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.5(c). The regulations also require reimbursement for maintenance of uniforms in certain specified amounts per week depending on the time period involved or the number of hours worked. See id. Because neither plaintiff was paid the minimum wage, each would be entitled to any unreimbursed uniform costs. In addition, they are entitled to payments for uniform maintenance as stated in the regulation.
Both plaintiffs assert that they were required to wear an "apron" as a uniform. Cabrera Aff. ¶ 9; Moreno Aff. ¶ 9. Only Cabrera, however, states the cost of that uniform ($40). See id. Thus, only she is entitled to payment of that cost. Both plaintiffs assert that they were required to purchase gloves and masks at a cost of $21.00 per week, which we accept were part of their uniforms given that defendants have not refuted this assertion. See Cabrera Aff. ¶ 9; Moreno Aff. ¶ 9. Cabrera worked a total of 141 weeks. See Pl. Mem. at 17. Moreno worked a total of 52 weeks. See id. at 12. Thus Cabrera is entitled to $3001 in uniform costs, and Moreno is entitled to $1092 in uniform costs.
As to the maintenance of the aprons, each plaintiff is entitled to the maintenance amounts provided in the regulation, which are set forth in the tables included in plaintiffs' memorandum. See Pl. Mem. at 12, 17-18. The total for Moreno is $479.46. The total for Cabrera is $1363.62.
C. Liquidated Damages
"'Under the FLSA, a district court is generally required to award a plaintiff liquidated damages equal in amount to actual damages' for violations of the FLSA's minimum wage and overtime provisions." Inclan v. New York Hosp. Grp., Inc., 95 F. Supp. 3d 490, 504 (S.D.N.Y. 2015) (citing Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008)) (additional citation omitted). While a district court has "discretion to deny liquidated damages where the employer shows that, despite its failure to pay appropriate wages, it acted in subjective good faith with objectively reasonable grounds for believing that its acts or omissions did not violate the FLSA," id. (citations and internal quotation marks omitted), clearly no such showing has been made here. Since 2010, the NYLL has provided in relevant part:
In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.N.Y. Lab. L. § 198(1-a) (emphasis added).
Noting that "[t]he New York State Legislature has amended the NYLL liquidated damages provision twice since 2009, making it easier for employees to claim liquidated damages," the Second Circuit in Rana v. Islam, 887 F.3d 118 (2d Cir. 2018), ruled that because "[d]ouble recovery is generally disfavored," the NYLL and FLSA do not "allow[] duplicative liquidated damages for the same course of conduct." Id. at 122. Here, because defendants are in default and have thus not made any showing that the underpayment of wages was in good faith compliance with the law, plaintiffs are entitled to liquidated damages under the NYLL in the amount of 100% of the minimum wage and overtime damages totals. See Rana, 887 F.3d at 123 (citing N.Y. Lab. L. § 198).
While plaintiffs seek double recovery of liquidated damages under both the FLSA and the NYLL, see Pl. Mem. ¶ 28, they fail to cite Rana, and instead cite to cases decided before Rana. Because we award plaintiffs minimum wage and overtime violation damages pursuant to the NYLL, rather than the FLSA, we award liquidated damages pursuant to the NYLL. See, e.g., Mei Chun Poon v. Apple NYC Corp., 2019 WL 75674, at *8 (S.D.N.Y. Jan. 2, 2019); see also Manzanares v. Your Favorite Auto Repair & Diagnostic Ctr., Inc., 2018 WL 6718766, at *10 (E.D.N.Y. Nov. 7, 2018) ("When two forms of damages are available for the same violation, courts have generally awarded the higher of the two.") (citing Rana, 887 F.3d at 119) (additional citation omitted).
Plaintiffs include in their liquidated damages calculation under the NYLL not only the minimum wage and overtime violations but also the uniform costs. See Pl. Mem. at 27 (Table 5: Liquidated Damages). We recognize that New York's liquidated damages provision applies only to the underpayment of "wages." See N.Y. Lab. L. § 198(1-a) ("the court shall allow [an] employee to recover the full amount of any underpayment, . . . and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due") (emphasis added). However, here plaintiffs were not paid even the minimum wage for their hours worked. Thus any payments they made toward uniform costs were effectively deductions from their minimum wage rate. See generally N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.5(c) ("No allowance for the supply, maintenance or laundering of required uniforms shall be permitted as part of the minimum wage.") (emphasis added). Accordingly, plaintiffs are entitled to liquidated damages for the expenditures they made for gloves and masks.
In sum, plaintiffs are entitled to liquidated damages in the amount of 100% of their unpaid minimum wages, unpaid overtime, and uniform expenses:
We do not include the uniform maintenance allowance in the liquidated damages calculation because plaintiffs have made no argument as to why these unpaid allowances constitute "wages."
| Minimum Wage | Unpaid Overtime | Uniform Expenses | Total | |
| Moreno | $2304.75 | $4440.23 | $1092 | $7836.98 |
| Cabrera | $7715 | $9326.25 | $3001 | $20,042.25 |
D. Failure to Provide Wage Statements
Since April 9, 2011, the NYLL has required employers to "furnish each employee with a statement with every payment of wages," which includes, inter alia, the rate of payment, the gross wages provided, and the applicable overtime rate. N.Y. Lab. L. § 195(3). Defendants failed to provide plaintiffs with such statements. See Compl. ¶ 36; Moreno Aff. ¶ 14; Cabrera Aff. ¶ 14.
Prior to February 27, 2015, when Moreno worked for defendants, statutory damages for violating this provision of the NYLL were limited to $100 per work week, not to exceed $2500. See 2010 N.Y. Laws ch. 564 § 7; accord Poon, 2019 WL 75674, at *9. The penalty was mandatory. See id. (employee "shall" recover the statutory damages). All of Moreno's hours were worked prior to February 27, 2015, and she worked more than 25 work weeks. See Moreno Aff. ¶ 4, 6; Pl. Mem. at 12. Therefore, she is entitled to $2500 in statutory damages.
Since February 27, 2015, the statute requires a penalty of $250 for each work day that the violations occurred, not to exceed $5000. See N.Y. Lab. L. § 198(1-d). The penalty remains mandatory. See id. (employee "shall" recover the statutory damages). The statutory maximum is accordingly reached after 20 work days. Cabrera worked more than 20 work days and thus she is entitled to $5000 in statutory damages.
E. Failure to Provide Notices
NYLL § 195(1) requires that, at the time of hiring, an employer "provide his or her employees, in writing in English and in the language identified by each employee as [their] primary language," notice of
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; the name of the employer; any "doing business as" names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary.Id. § 195(1)(a); accord Franco v. Jubilee First Ave. Corp., 2016 WL 4487788, at *13 (S.D.N.Y. Aug. 25, 2016). The notice must also state an employee's regular hourly rate and overtime rate of pay. N.Y. Lab. L. § 195(1)(a).
Prior to February 27, 2015, the statue provided for statutory damages of up to $50 per work week, not to exceed $2500, for failure to comply with this provision. See id. § 198(1-b) (effective Apr. 9, 2011 to Feb. 26, 2015). After February 27, 2015, statutory damages of $50 accrue per work day, not to exceed $5000, for failure to comply with this provision. See id. § 198(1-b).
Here, defendants did not provide plaintiffs with the required notice at the time of hiring or thereafter. See Compl. ¶ 35; Moreno Aff. ¶ 13; Cabrera Aff. ¶ 13. Defendants have provided no reason why the statutory maximum should not be awarded and thus we view the maximum as an appropriate award. Moreno worked more than 50 weeks prior to February 27, 2015, and thus she should be awarded $2500. Cabrera worked more than 100 days after February 27, 2015, and thus she should be awarded $5000.
F. Pre-Judgment Interest
A plaintiff who prevails on a NYLL wage claim is entitled to prejudgment interest on any "underpayment" of wages. See N.Y. Lab. L. § 198(1-a); Poon, 2019 WL 75674, at *9; Santana v. Latino Express Rests., Inc., 198 F. Supp. 3d 285, 294 (S.D.N.Y. 2016); Castillo v. RV Transport, Inc., 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016). Prejudgment interest is not available for violations of the wage statement or wage notice provisions. See N.Y. Lab. L. §§ 198(1-b), (1-d); Poon, 2019 WL 75674, at *9. Also, the award of prejudgment interest applies only to the amount of underpayment of wages, not to liquidated damages. See Poon, 2019 WL 75674, at *9; Ortega v. JR Primos 2 Rest. Corp., 2017 WL 2634172, at *6 (S.D.N.Y. June 16, 2017); Qui Hua Tan v. Voyage Express Inc., 2017 WL 2334969, at *8 (E.D.N.Y. May 25, 2017).
Prejudgment interest in New York runs at a rate of nine percent per annum. N.Y. C.P.L.R. 5001(a), 5004. The starting date from which a court computes this interest is "the earliest ascertainable date the cause of action existed." Conway v. Icahn & Co. Inc., 16 F.3d 504, 512 (2d Cir. 1994) (quoting N.Y. C.P.L.R. 5001(b)). However, "[w]here such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." N.Y. C.P.L.R. § 5001(b); see also Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998) ("New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or 'a single reasonable intermediate date'") (quoting 155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559 (2d Dep't 1996)).
Here, plaintiffs' claims for unpaid wages arose on different dates: from February 23, 2013, to February 24, 2014, for Moreno, and from March 1, 2013, to November 6, 2015, for Cabrera. The midpoints of these days are: August 25, 2013, for Moreno, and July 4, 2014, for Cabrera. We elect to use these dates to award plaintiffs prejudgment interest on the wage portions of their awards. Moreno is therefore entitled to nine percent annual interest on her unpaid wages (including the uniform expenses) of $7836.98 from August 25, 2013, until the date judgment is entered, or $1.93 per day ($7836.98 times .09 divided by 365). Cabrera is entitled to nine percent annual interest on her unpaid wages (including the uniform expenses) of $20,042.25 from July 4, 2014, until the date judgment is entered, or $4.94 per day ($20,042.25 times .09 divided by 365).
G. Attorney's Fees
Because they have made successful claims under the NYLL and FLSA, plaintiffs are entitled to an award of reasonable attorney's fees. 29 U.S.C. § 216(b); N.Y. Lab. L. § 663(1); accord Baltierra v. Advantage Pest Control Co., 2015 WL 5474093, at *12 (S.D.N.Y. Sept. 18, 2015). In determining this fee award, "[t]he most useful starting point . . . is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 186 (2d Cir. 2008) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a "presumptively reasonable fee," Arbor Hill, 522 F.3d at 183, and is commonly referred to as the "lodestar." Although district courts remain free to modify this award to ensure that it represents a reasonable fee and incorporates important or unique aspects of the case, see, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992), the lodestar figure "includes most, if not all, of the relevant factors constituting a reasonable attorney's fee." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010) (citation and internal quotation marks omitted).
1. Reasonable Number of Hours
It is well established that "any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records. . . . specify[ing], 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, 1148 (2d Cir. 1983); accord Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 149-50 (2d Cir. 2014). With regard to the review of such records, a court's task is to make "a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended." Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994). "The critical inquiry is 'whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'" Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993)).
Additionally, if a court finds that claimed hours are "excessive, redundant, or otherwise unnecessary," it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, "[t]here is no precise rule or formula for making these determinations." 461 U.S. at 436. Because "it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application," Carey, 711 F.2d at 1146, "the court has discretion simply to deduct a reasonable percentage of the number of hours claimed 'as a practical means of trimming fat from a fee application,'" Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146). Thus, a district court is not required to "set forth item-by-item findings concerning what may be countless objections to individual billing items." Lunday, 42 F.3d at 134.
Here, plaintiffs have submitted contemporaneous time records for litigation work performed in this matter by plaintiffs' law firm, the Law Office of Justin A. Zeller, P.C. See Time Sheet for Cabrera v. Happy Angel (annexed as Docket # 99-1 to Pl. Mem.) ("Time Sheet"). Four attorneys devoted billable hours to work on this matter: Justin A. Zeller, Brandon D. Sherr, John M. Gurrieri, and an attorney identified as "MEL" who billed 24.4 hours. See Pl. Mem. ¶ 43; see generally Time Sheet. Plaintiffs do not provide any information as to "MEL," see Pl. Mem. ¶¶ 43, 45-47, 49, 51, and thus we exclude the 24.4 hours from our calculation.. The other hours claimed are 0.5 for Zeller, 25.8 for Sherr, and 22.8 for Gurrieri. Id. ¶ 51.
The time logs provide descriptions of the tasks completed, and the time expended on each task appears to be reasonable. The total number of hours sought — 49.1 (excluding the 24.4 hours billed by "MEL") — is reasonable given that this case was litigated for a significant period, and included the taking of a partial deposition of Wang Dong and various discovery applications and court conferences, before the defendants decided to stop defending the matter.
Accordingly, the hours awarded should be 0.5 for Zeller, 25.8 for Sherr, and 22.8 for Gurrieri.
2. Reasonable Hourly Rate
In determining whether the hourly rate is reasonable, "the burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
To determine an appropriate hourly rate, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original). The "Johnson factors" are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These 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 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill specifically identifies the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill holds that a court must "step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively." 522 F.3d at 184 (emphasis added). "In other words, whether the attorneys on the case properly command the rates they seek in the marketplace is not dispositive of the rate that they are to be awarded. Rather, Arbor Hill demands that we determine the cheapest hourly rate an effective attorney would have charged." O.R. v. New York City Dept. of Educ., 340 F. Supp. 3d 357, 364 (S.D.N.Y. 2018) (emphasis in original).
Here, one of plaintiffs' attorneys has attested to the experience and qualifications of Zeller, Sherr, and Gurrieri. See Pl. Mem. at 6 & id. ¶ 43. Plaintiffs request hourly rates of $375 for Zeller, $325 for Sherr, and $275 for Gurrieri. Pl. Mem. ¶ 49. The Court has considered all of the factors in Johnson and Arbor Hill, and notes that this case was not unusually complex; that it did not demand great resources; that it involved little contested litigation; and that there were no unusual timing demands on the case. On the other hand, counsel and his firm practice extensively in the field of labor and employment law, specializing in wage and hour cases. See Pl. Mem. ¶ 43. And, as already noted, the case involved the taking of a partial deposition of Wang Dong and various discovery applications and court conferences.
Zeller graduated from law school in 2002, and is currently the sole shareholder of his firm, the Law Office of Justin A. Zeller, P.C., which specializes in wage and hour litigation. Pl. Mem. ¶ 43. Zeller has specialized in wage and hour law for more than 12 years. Id. In May 2017, a court in this district found Zeller's reasonable hourly rate to be $350. Rodriguez-Hernandez v. K Bread & Co., Inc., 2017 WL 2266874, at *6 (S.D.N.Y. May 23, 2017). In light of the fact that Arbor Hill requires that we must award the "least amount necessary to litigate the case effectively," 522 F.3d at 184, and considering Zeller spent only 0.5 hours on this matter, we conclude that a reasonable paying client would expect to pay no more than $350 per hour for the services of the type offered here by Zeller. Accordingly, the Court finds Zeller's reasonable hourly rate to be $350.
Sherr, an associate, graduated from law school in 2010 and has since been associated with the Law Office of Justin A. Zeller, P.C. Pl. Mem. ¶ 43. He has thus been practicing wage and hour law for at least eight years. See id. He requests an hourly rate of $325. Id. ¶ 49. In a recent case in this circuit involving the Law Office of Justin A. Zeller, P.C., Sherr requested and was awarded a rate of $300. See Kotuwage v. NSS Petroleum Inc., 2019 WL 1370692, at *2 (E.D.N.Y. Mar. 6, 2019). The court in Sai Qin Chen v. E. Mkt. Rest., Inc., 2018 WL 3970894 (S.D.N.Y. Aug. 20, 2018), similarly awarded an hourly rate of $300 to attorneys with eight years of experience in an FLSA and NYLL action. See id. at *3. Here, we agree that $300 is a reasonable hourly rate for Sherr.
Gurrieri, an associate, graduated from law school in 2013 and was associated with the Law Office of Justin A. Zeller, P.C., specializing in wage and hour law, from 2013 to June 2017. Pl. Mem. ¶ 43. Thus, he practiced law and specialized in wage and hour law for at least four years. Gurrieri seeks a rate of $275. Id. ¶ 49. In a recent case, Gurrieri was awarded a rate of $200, which the court found to be "at the high end of the normal range for junior associates in wage-and-hour cases." Kotuwage, 2019 WL 1370692, at *2 (citation omitted). We find persuasive Kotuwage's reasoning and find that $200 is a reasonable hourly rate for Gurrieri.
The hours and rates described above produce a total award of $12,475 as described in the following table:
| Name | Hours | Rate | Amount Awarded |
| Justin A. Zeller | 0.5 | $350.00 | $175 |
| Brandon D. Sherr | 25.8 | $300.00 | $7740 |
| John M. Gurrieri | 22.8 | $200.00 | $4560 |
| Total Award | $12,475 |
|---|
H. Costs
Plaintiffs successful under FLSA and NYLL are also entitled to costs, which "'include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.'" LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (quoting U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir. 1989)); accord Febus v. Guardian First Funding Grp., LLC, 870 F. Supp. 2d 337, 341 (S.D.N.Y. 2012). Here, plaintiffs' counsel has requested $1352.52 in costs, Pl. Mem. ¶ 54, which includes $400.20 in court reporting fees, see Court Reporting Statement (annexed as Docket # 99-2 to Pl. Mem.), $392 in translation fees, see Translators & Interpreters Invoice (annexed as Docket # 99-2 to Pl. Mem.), various process server fees, and a $400 filing fee. These costs are recoverable. See, e.g., Soto v. Armstrong Realty Mgmt. Corp., 2016 WL 7396687, at *5 (S.D.N.Y. Dec. 21, 2016) (awarding reasonable costs for mailing, court reporting, filing fees, and service fees); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 52 (E.D.N.Y. 2015) (awarding costs for a filing fee and service of process fees); Tacuri v. Nithin Constr. Co., 2015 WL 790060, at *14 (E.D.N.Y. Feb. 24, 2015) (noting that "a court can take judicial notice of the court's filing fee and award it"); Marquez v. Erenler, Inc., 2014 WL 5847441, at *4 (S.D.N.Y. Nov. 10, 2014) (finding costs for hiring an interpreter to be reasonable). Accordingly, plaintiffs should be awarded $1352.52 in costs.
I. Post-Judgement Interest
Finally, plaintiffs seek post-judgment interest pursuant to N.Y. Lab. L. § 198(4). See Pl. Mem. ¶ 55. Courts routinely grant requests for post-judgment interest under that statute. See, e.g., Java v. El Aguila Bar Rest. Corp., 2018 WL 1953186, at *13 (S.D.N.Y. Apr. 25, 2018); Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 516 (S.D.N.Y. 2017), aff'd, 752 F. App'x 33 (2d Cir. 2018); Elisama v. Ghzali Gourmet Deli Inc., 2016 WL 11523365, at *19 (S.D.N.Y. Nov. 7, 2016). Under N.Y. Lab. L. § 198(4), "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."
III. TOTAL SUMS AWARDED
Moreno is entitled to a judgment in the amount of $21,153.42. That figure consists of: (1) $6744.98 in unpaid minimum wages and overtime wages; (2) $1092 in uniform costs; (3) $479.46 in uniform maintenance; (4) $7836.98 in liquidated damages; (5) $2500 for failure to provide wage statements; and (6) $2500 for failure to provide notices. Cabrera is entitled to a judgment in the amount of $51,448.12. That figure consists of (1) $17,041.25 in unpaid minimum wages and overtime wages; (2) $3001 in uniform costs; (3) $1363.62 in uniform maintenance; (4) $20,042.25 in liquidated damages; (5) $5000 for failure to provide wage statements; and (6) $5000 for failure to provide notices. Plaintiffs are also entitled to an award of $12,475 in attorney's fees and $1352.52 in costs. Finally, Moreno should be awarded $1.93 per day in prejudgment interest from August 25, 2013, until the date judgment is entered, and Cabrera should be awarded $4.94 per day in prejudgment interest from July 4, 2014, until the date judgment is entered. Plaintiffs should also be awarded post-judgment interest if necessary as detailed by New York Lab. L. § 198(4).
The total sum due for both plaintiffs, including attorneys's fees and costs, is $86,429.06, plus pre- and post-judgment interest as noted above.
IV. CONCLUSION
Judgment should be awarded in favor of Guadalupe De La Cruz Moreno against defendants Happy Angel Nail Spa Inc. and Wang Dong in the amount of $21,153.42 plus $1.93 per day in prejudgment interest from August 25, 2013, until the date judgment is entered. Judgment should be awarded in favor Rosa Toledo Cabrera against defendants Happy Angel Nail Spa Inc. and Wang Dong in the amount of $51,448.12 plus $4.94 per day in prejudgment interest from July 4, 2014, until the date judgment is entered. Plaintiffs should be jointly awarded attorneys' fees and costs in the amount of $13,827.52. Plaintiffs are entitled to post-judgment interest in accordance with New York Lab. L. § 198(4).
PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Lorna G. Schofield at 40 Foley Square, New York, NY, 10007. Any request for an extension of time to file objections or responses must be directed to Judge Schofield. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010). Dated: June 12, 2019
New York, New York
/s/_________
GABRIEL W. GORENSTEIN
United States Magistrate Judge Copies sent to: Wang Dong
Chinese-American Nail Salon Assoc.
5409 8th Ave.
3rd Floor
Brooklyn, NY 11220 Wang Dong
Chinese-American Nail Salon Assoc.
231 60th Street
2nd Floor
Brooklyn, NY 11220-3711 Dong Wang
412 Oak Avenue
1st Floor
Flushing, New York 11355