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declining to award a plaintiff statutory damages under the NYLL despite defendant's default because plaintiff “merely state[d] that he was not provided the new hire notice or wage statements” and failed to “assert any other facts describing the injury in fact caused by not receiving these documents”
Summary of this case from Jaramillo v. Latino Regal Corp.Opinion
20-CV-1055 (GBD) (KHP)
03-06-2023
RAMON A. BELLIARD, Plaintiff, v. VADIM TARNOVSKY and OLYA PLOTNIKOVA, Defendants.
HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DAMAGES INQUEST
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
Plaintiff is a former employee of Defendants, who were owners/principles of Eagle Team NYC. Plaintiff asserts claims under the Fair Labor Standards Act (“FLSA”) 29 U.S.C. § 203(d) et seq., as well as pendent state claims under the New York Labor Law §§ 190 et seq. and 650 et seq. (“NYLL”), for violations of minimum wage and overtime laws, wage notice and statement violations, liquidated damages, and attorneys' fees and costs. After entry of default against the Defendants (ECF No. 32), the Honorable George B. Daniels referred this action to me for a report and recommendation on damages (ECF No. 33). Defendants did not file an opposition to the Plaintiff's Motion for a Default Judgment, nor did they appear at any point in the damages inquest proceedings. After review of the submissions, I respectfully recommend that Plaintiff be awarded damages as set forth in detail below.
FACTUAL AND PROCEDURAL BACKGROUND ]
The facts are taken from the Complaint and an affidavit submitted by Plaintiff.
Plaintiff was employed by Defendants from May 9, 2017 through May 18, 2018.(Compl. ¶¶ 4-6, 12; Belliard Declaration (“Belliard Decl.”) ¶ 4.) His responsibilities included work as a painter, plasterer, van driver, framer and sheet rock installer. (Compl. ¶ 12; Belliard Decl. ¶ 5.) He asserts that his work included production of goods for commerce and/or that he was engaged in commerce within the meaning of the FLSA. (Compl. ¶ 14.) He does not state whether Defendants' gross revenues were $500,000 or more.
The Complaint states November 12, 2021 was Plaintiff's last day worked, but Plaintiff's Declaration states he was paid through November 15, 2021. Thus, the Court treats November 15, 2021 as Plaintiff's last day of work.
Both defendants are alleged to have ownership interest in Eagle Team NYC, the entity that employed Plaintiff, and to have had the power to hire and fire employees, set wages and schedules and maintain records. (Compl. ¶¶ 4-6)
Throughout his employment, Plaintiff worked six days per week, Monday through Saturday from 8:00 a.m. to 5:00 p.m. (Compl. ¶¶ 15-16; Belliard Decl. ¶¶ 7-8.) He worked 54 hours per week and was paid $200 per day. (Compl. ¶¶ 17-18; Belliard Decl. ¶¶ 9, 12.) This amounts to an hourly rate per day of $22.22. Defendants did not provide any method for Plaintiff to track his hours worked. (Belliard Decl. ¶ 10.) Plaintiff did not receive any overtime premium pay for the hours worked over forty each week. (Compl. ¶ 19; Belliard Decl. ¶ 13.) Plaintiff asserts Defendants' failure to pay overtime was willful. (Compl. ¶¶ 20, 32-33, 42-43.) He states that Defendants failed to pay spread-of-hours pay when he worked more than 10 hours in a day but does not identify any days when he worked more than 10 hours. (Compl. ¶ 21.) In addition, Plaintiff asserts that he was not provided with any notice of his wage rates and pay days or any compliant “paystubs” as required under New York law. (Compl. ¶¶ 22-23.) Belliard was paid in cash. (Belliard Decl. ¶ 11)
Plaintiff filed his complaint on February 7, 2020 and properly served all of the Defendants in this action, but they failed to appear. (ECF Nos. 1, 10-11.) On April 2, 2021, a clerk's default was entered against defendants. (ECF No. 17.) On May 13, 2022, Plaintiff moved for a default judgment and damages. (ECF Nos. 24-31.) Plaintiff filed papers in support of the damages he seeks. On October 17, 2022, the Honorable George B. Daniels issued a default judgment against Defendants and referred the matter to the undersigned for an inquest on damages. (ECF Nos. 32-33.)
Plaintiff subsequently filed affidavits of service on Defendants of the default judgment by posting near the residence and by first class mail. (ECF Nos. 40, 41.) Defendants have made no appearance in this matter or otherwise objected to the request for a default judgment and damages.
Plaintiff seeks an award of $8,288.89 for unpaid overtime; $8,288.89 in liquidated damages under the FLSA; $8,288.89 in liquidated damages under the NYLL; $10,000 for violation of New York's wage notice and wage statement requirements; $3,355.98 prejudgment interest; $5,480 in attorneys' fees and $400 in costs associated with the filing fee. (Samuel Declaration (“Samuel Decl.”) ¶¶ 10, 13.)
DISCUSSION
I. Default Judgment
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, 65-66 (2d Cir. 1981) (defendant's ongoing failure to appear supported failure to plead for the purpose of entry of default). Rule 55 requires a two-step process for an entry of a default judgement. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). First, upon notification from the moving party, the court clerk enters a default of the party who failed to defend. Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir. 2011) (citing Fed.R.Civ.P. 55(a)). Second, once the clerk issues a certificate of default, the moving party may apply for entry of default judgment pursuant to Rule 55(b). Id. A default constitutes an admission of all well-pleaded factual allegations in the complaint, and the allegations as they pertain to liability are deemed true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, plaintiffs are not entitled to a default judgment as a matter of right merely because the opposing party is in default. Finkel v. Universal Elec. Corp., 970 F.Supp.2d 108, 118 (E.D.N.Y. 2013). Plaintiffs bear the burden to demonstrate that their uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action. La Barbera v. Fed. Metal & Glass Corp., 666 F.Supp.2d 341, 348-49 (E.D.N.Y. 2009).
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 nondefaulting 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).
Here, Plaintiff has satisfied the two-step procedural requirements of Rule 55 by submitting a request for both entry of default and default judgment following the issuance of the clerk's certification. (ECF Nos. 18-21, 27-30.) Additionally, all three of the foregoing factors weigh in Plaintiffs' favor. The Defendants' failure to sustain an appearance and to respond to either Plaintiffs' Complaints or Motions for a Default Judgment are indicative of willful conduct. See Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 60 (2d Cir. 1996) (Second Circuit courts look for evidence of bad faith or more than mere negligence to satisfy the willfulness standard). Additionally, the Defendants cannot assert any meritorious defenses to Plaintiffs' claims because they failed to respond or make any appearance in this case. See Fermin v. Las Delicias Peruanas Rest., 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). Further, Plaintiffs will be prejudiced if denied the ability to seek judgment by default because the Plaintiffs will have no alternative legal redress to recover the amounts due to them for the work performed during their employment.
Generally, a defendant's default is an admission of the plaintiff's well-pleaded allegations as to liability but not for purposes of determining damages. See Greyhound Exhibitgroup, 973 F.2d 155, 158 (2d Cir. 1992). Even when a defendant has defaulted, a substantive analysis of the alleged claims is required to determine whether the plaintiff may be awarded damages and proof of damages is required. Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). As noted, Plaintiff submitted a declaration concerning his hours and pay and Plaintiff's counsel has submitted contemporaneous time records reflecting time spent on this matter.
Although a court may hold a hearing to assess damages, a hearing is not required when a sufficient basis on which to make a calculation exists. See Fed.R.Civ.P. 55(b)(2). Holding an inquest by affidavit, without an in-person court hearing, is permissible “as long as [the court] ensured that there was a basis for the damages specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997) (citation omitted). In this case, Plaintiff has offered sufficient evidentiary support through declarations and exhibits submitted in support of his claim for damages. He filed an affidavit of service of her papers on Defendants on January 31, 2023 (ECF No. 41), but Defendants have not submitted any response or otherwise appeared in this action. Hence, no evidentiary hearing is required.
1. Unpaid Wages Under the FLSA and NYLL
The FLSA was enacted by Congress to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). To establish a claim under the FLSA, a plaintiff must show that: (1) he or she was an “employee” of the defendants, as defined by the statute; (2) that the defendants were employers engaged in commerce; and (3) that the employment relationship was not exempt from the FLSA. See Dejesus v. HF Mgmt. Servs., LLC, 72 6 F.3d 85, 90 (2d Cir. 2013) (plaintiff alleged facts about employment status and duties to satisfy FLSA claim).
Section 206 of the FLSA sets forth the minimum hourly wage that employers must pay their employees. 29 U.S.C. § 206(a)(1)(C). Section 207 specifies that an employer must pay employees who work more than forty hours during a workweek for the excess hours “at a rate not less than one and one-half times the regular rate at which [they are] employed.” 29 U.S.C. § 207(a)(1). There is a presumption that an employee is entitled to overtime; an employer bears the burden of proving that an employee is exempt from overtime. 29 U.S.C. § 207(a)(1); Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir. 2002) (recognizing that exempt status under the FLSA is an affirmative defense). Employers who violate the FLSA's minimum wage and overtime provisions are liable for the amount of unpaid wages and in most cases an additional equal amount as liquidated damages. 29 U.S.C. § 216(b).
New York's Labor law is the state analogue to the federal FLSA. Although the Labor Law “does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales,” it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime. Accosta v. Lorelei Events Grp Inc., 2022 WL 195514, at *3 (S.D.N.Y. Jan. 21, 2022). The New York Labor Law also expressly provides that employees are entitled to recover all unpaid wages and liquidated damages at a rate of 100 percent of the wages due. See N.Y. Lab. Law § 198(3); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 502 (S.D.N.Y. 2017), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
Here, Plaintiff does not satisfy the second element of an FLSA claim. Although Plaintiff has alleged that he engaged in interstate commerce, he does not state why that is so. Nor did he plead that Defendants' annual gross revenue was in excess of $500,000. Thus, he has failed to state a claim under the FLSA. However, this does not impact his recovery of damages because he has satisfied the requirements of pleading a claim for unpaid overtime under NYLL. Specifically, he has attested that Defendants were his employer and that he was employed by Defendants. He asserted that Defendants hired, supervised and controlled his work and pay. Thus, Plaintiff has met the requirement of demonstrating that Defendants were employers and that he was an employee. Rahman v. Red Chili Indian Cafe, Inc., 2021 WL 2003111, at *2 (S.D.N.Y. May 19, 2021) (in default judgment context, finding allegations in complaint that owner of employing entity had the power to hire and fire employees and set wages was sufficient to establish that both the entity and its owners were employers); see also NYLL § 190; Irizarry v.Catsimatidis, 722 F.3d 99, 104-111 (2d Cir. 2013) (An “employer” may include an individual owner who exercises sufficient operational control over employees).
He has attested to his job duties, which are in the nature of manual labor and not the type that fall under any exemption, and thus is entitled to a presumption that he qualifies for overtime. Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 44 (E.D.N.Y. 2015) (finding that the “[c]ourts have interpreted the definition of ‘employer' under the [NYLL] coextensively with the definition used by the FLSA”) (internal quotation and citations omitted). Insofar as Defendants have defaulted, they have not met their burden to show that Plaintiff is exempt from overtime. Id. Additionally, he has attested that he was paid a day rate and no overtime premium. Thus, he has stated a claim for unpaid overtime compensation under NYLL.
Claims brought pursuant to the NYLL are subject to a six-year statute of limitations. See Byer v. Periodontal health Specialists of Rochester, PLLC, 2021 WL 3276725, at *2 (2d Cir. 2021) (citing NYLL § 663(1), (3)). Because Plaintiff filed his complaint in 2020, well within the statute of limitations, his claim is timely as well.
New York's basic minimum wage rate changed during the relevant time and set specific rates for New York City employers with ten or fewer employees. Additionally, the rates differed for fast food employees versus other employees. Because Plaintiff has not alleged that Defendants employed more than 10 employees and because he worked in New York City, the applicable minimum wage rate for him was $10.50 from the start of his employment through December 30, 2017 and $12 per hour from December 31, 2017 through May 18, 2018. See N.Y. Lab. Law § 652(1)(a)(ii); Galvez v. 800 Ginza Sushi Inc., 2022 WL 748286, at *11 (S.D.N.Y. Mar. 11, 2022); see also DEPT. OF LAB., New York's Minimum Wage, https://dol.ny.gov/minimum-wage-0 (last visited Feb. 23, 2023). Plaintiff's effective hourly rate exceeded the minimum wage rate and thus he is not claiming failure to pay minimum wage. His overtime rate is computed at 1.5 times his regular hourly rate. N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2.
Plaintiff attested that he received $200 per day and worked 9 hours per day. This results in a regular hourly rate of $22.22 and an overtime rate of $33.33. Because Plaintiff was paid his straight time rate of $22.22 for all hours worked, his overtime premium is the difference between his overtime and straight-time rates; that is $11.11. Plaintiff attested that he worked 54 hours a week, which means that he is entitled to an overtime premium for 14 hours for each full week of employment; that is an additional $155.54 for each full week of employment ($11.11 X 14 hours). Plaintiff worked from May 9, 2017 until May 18, 2018; that is 53.4 weeks. This means that Plaintiff is entitled to an additional $8,305.84 in overtime pay (53.4 x $155.54).
Plaintiff arrived at a slightly lower amount of $8,288.89. The Court uses its own independent computations in its recommendation.
2. Liquidated Damages
Plaintiff seeks “stacked” liquidated damages under both the FLSA and the NYLL. Both laws provide for an award of liquidated damages equal to 100% of unpaid wages. 29 U.S.C. 216(b); N.Y. Lab. Law § 663(1); N.Y. Lab. Law § 198(3). However, Plaintiffs are not entitled to stacked liquidated damages under the law of this Circuit. Chowdury v. Hamza Express Food Corp., 666 Fed.Appx. 59, 60-61 (2d Cir. 2016); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 502-504 (S.D.N.Y. 2017) (discussing change in law and explaining awarding stacked liquidated damages is an “impermissible double recovery”). In any event, as discussed above, Plaintiff has not stated a claim under the FLSA, so the Court looks to NYLL for purposes of any award of liquidated damages. Under the NYLL, an employee may obtain liquidated damages unless the employer demonstrates good faith failure to pay proper wages. Gamero, 272 F.Supp.3d at 503. Because Defendants defaulted, they have not established the good faith necessary to rebut the liquidated damages presumption. Thus, Plaintiff is entitled to liquidated damages under the NYLL equal to the amount of unpaid overtime compensation; that is, $8,305.84.
3. Statutory Damages
Plaintiffs also seek statutory damages for Defendants' failure to provide wage notices in compliance with New York's Wage Theft Prevention Act (“WTPA”), and NYLL § 195(1) and (3), which requires employers to “provide [their] employees, in writing . . . a notice containing . . . the rate or rates of pay thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other allowances.” N.Y. Lab. Law. § 195(1) and (3). NYLL § 198 sets the amount of statutory damages an employee may recovery for violations of NYLL § 195.
New York Labor Law provides a private cause of action for violations of NYLL Sections 195(1) (new hire notices) and 195(3)(wage statements). N.Y. Lab. Law. §§ 198(1-b),198(1-d). The law requires employers to provide written wage notices “at the time of hiring” and/or within ten days of their hire date. 2014 N.Y. Laws ch. 537 § 1, amending N.Y. Lab. Law § 195(1-a). Failure to follow this results in a $50 per day payment to the employee with a maximum recovery of $5,000.00 per employee. NYLL § 198(1-b). The law also requires wage statements to accompany regular pay that, among other things, provides rates of pay and hours in the pay period. NYLL § 195(3). Employees may recover statutory damages of $250 dollars “for each work day that the violations occurred or continue to occur,” not to exceed $5,000. N.Y. Lab. Law § 198(1-d); see also Teofilo v. Real Thai Cuisine Inc., 2021 WL 22716, at *4 (S.D.N.Y. Jan. 4, 2021).
Article III of the United States Constitution confines the judicial power of the federal courts to cases where the plaintiff shows, inter alia, that she suffered a concrete injury in fact. TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff cannot rely on the fact that the defendant committed a statutory violation: an “injury in law” does not amount to an “injury in fact” for purposes of Article III standing. Id. at 2205. Rather, a “concrete” harm is something with at least a “‘close relationship' to a harm ‘traditionally' recognized as providing a basis for a lawsuit in American courts-such as physical harm, monetary harm, or various intangible harms.” Id. at 2204 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 340-41, (2016)). “[A] material risk of future harm” can satisfy the concrete-harm requirement for a claim of damages” but an “asserted informational injury that cause no adverse effects cannot satisfy Article III”. Id. at 2214. Such adverse harms must be pled in the Complaint. Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 65-66 (2d Cir. 2021); see also Epstein v. JPMorgan Chase & Co., 2014 WL 1133567, at *7 n.6 (S.D.N.Y. Mar. 21, 2014) (declining to infer standing based on harms plaintiff claimed to have suffered where plaintiff failed “to make this claim in his papers”).
Citing TransUnion, the Honorable Pamela K. Chen of the Eastern District of New York held, in three seriatim decisions, that plaintiffs lacked standing to maintain claims in federal court for violations of statutory wage statement requirements under NYLL § 195(3). See Sevilla v. House of Salads One LLC, 2022 WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022) (finding Plaintiffs lacked standing to bring NYLL and FLSA claims for failure to provide hiring and wage statements in a default judgment case); see also Wang v. XBB, Inc., 2022 WL 912592, at *13 (E.D.N.Y. Mar. 29, 2022); Francisco v. NY Tex Care, Inc., 2022 WL 900603, at *7 (E.D.N.Y. Mar. 28, 2022). Judge Chen explained that the plaintiffs in those cases did not demonstrate how the lack of accurate wage statements “led to either a tangible injury or something akin to a traditional cause of action.” Francisco, 2022 WL 900603, at *7. Similarly, courts have held a failure to describe how the lack of a new hire notice led to an injury in facts failed to satisfy Article III standing. Metcalf v. TransPerfect Translations Int'l, Inc., 2022 WL 4661926, at *15-17 (S.D.N.Y. Sept. 30, 2022).
In this case, Plaintiff merely states that he was not provided the new hire notice or wage statements. He does not assert any other facts describing the injury in fact caused by not receiving these documents. Thus, he has failed to properly plead standing to assert these claims. For this reason, I recommend that Plaintiff's request for statutory damages be denied.
This does not necessarily mean Plaintiff could not make out a claim in New York State Court, as the TransUnion analysis is specific to federal standing requirements. TransUnion LLC, 141 S.Ct. 2190.
4. Attorneys' Fees
The NYLL provides for an award of reasonable attorneys' fees to successful plaintiffs. See NYLL §§ 198(1-a), 663(1). Plaintiff is represented by Michael Samuel, a partner in the firm Samuel & Stein. Samuel submitted an attorney declaration attaching a breakdown of attorneys' fees and costs incurred in the action. (ECF No. 28.) In it he states that his standard billing rate is $400 per hour. He graduated law school in 1994. He seeks $5,480 in fees, which amounts to 13.7 hours spent on this matter.
Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190. In assessing whether an attorney's hourly rate is reasonable, courts may rely on their own knowledge of a firm's hourly rates. See Gurung v. Malhotra, 851 F.Supp.2d 583, 596 (S.D.N.Y. 2012) (citing Miele v. New York State Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987)).
In assessing whether the number of hours billed by the attorney is reasonable, courts consider “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) (citation omitted). Plaintiff bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of N.Y., 626 F.3d 130, 133-34 (2d Cir. 2010) (citation omitted); s ee also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020).
District courts exercise “considerable discretion” in awarding attorneys' fees. See D.B. ex rel. S.B. v. New York City Dep't of Educ., 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (internal quotation marks and citation omitted), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); McDaniel v. County. of Schenectady, 595 F.3d 411 (2d Cir. 2010); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). However, when awarding attorneys' fees, the court must also “clearly and concisely state reasons supporting the award.” Tackie v. Keff Enters. LLC, 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014) (first citing Hensley, 461 U.S. at 437; then citing Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014)) (awarding attorneys' fees under FLSA and NYLL).
Courts in this district have determined that an hourly rate ranging from $250 to $450 is appropriate for experienced litigators in wage and hour cases. See, e.g., Xochimitl v. Pita Grill of Hell's Kitchen, Inc., 2016 WL 4704917, at *20 (S.D.N.Y. Sept. 8, 2016) (finding a range of $250 to $450 per hour reasonable; collecting cases); Lopez v. Emerald Staffing, Inc., 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour”); see Trinidad v. Pret a Manger (USA) Ltd., 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases). Accordingly, the hourly rate of $400 is reasonable and consistent with rates awarded to lead counsel in wage and hour matters in this District.
When assessing whether the hours worked were reasonable, “[h]ours that are excessive, redundant, or otherwise unnecessary, are to be excluded . . . and in dealing with such surplusage, 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 St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (internal citations and quotation marks omitted); see also Williams v. Metro-N. R. Co., 2018 WL 3370678, at *2 (S.D.N.Y. June 28, 2018). Courts also consider the nature of the legal matter, reason for the fee award, whether the case involved complex issues “requiring particular attorney skills and experienced which] may command higher attorney rates,” and whether the case “require[ed] retention of a firm with the resources needed to prosecute a case effectively.” Williams, 2018 WL 3370678, at *3 (citing Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 185-87).
Plaintiff's counsel's billing records, while contemporaneous, are not particularly detailed. Nevertheless, given the Court's own knowledge of the filings in this case and the time generally necessary to draft and file these types of pleadings, and given the Court's general knowledge of the time needed to file a wage and hour action and move for default, the hours expended are reasonable and not excessive. Thus, I recommend awarding attorney's fees in the amount of $5,480.
5. Costs
The NYLL entitles prevailing plaintiffs in wage-and-hour actions to recover costs. 29 U.S.C. §216(b); NYLL §663(1). “An award of costs ‘normally include[s] those reasonable out-ofpocket expenses incurred by the attorney and which are normally charged fee-paying clients.'” Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)); see also Perez Garcia v. Hirakegoma Inc., 2020 WL 1130765, at *13 (S.D.N.Y. Mar. 9, 2020).
Here, the only cost sought is the filing fee for bringing a federal action. This is $400. This expense is typically reimbursed under the NYLL's costs provisions. See Xochimitl, 2016 WL 4704917, at *22 (awarding costs for filing and process server costs). Accordingly, I recommend awarding Plaintiff costs in the amount of $400.
6. Pre-Judgment Interest
Plaintiff also requests and is entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 48 (E.D.N.Y. 2015) (“In contrast to the FLSA, the NYLL permits the award of both liquidated damages and prejudgment interest.”). “Prejudgment interest is calculated on the unpaid wages due under the NYLL, not on the liquidated damages awarded under the state law.” Fermin, 93 F.Supp.3d at 49 (quoting Mejia v. East Manor USA Inc., 2013 WL 3023505, at *8 n.11 (E.D.N.Y. Apr. 19, 2013) (internal brackets removed), report and recommendation adopted, 2013 WL 2152176 (E.D.N.Y. May 17, 2013)).
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Fermin, 93 F.Supp.3d at 49.
To calculate prejudgment interest, the court must multiply the total amount of Plaintiff's compensatory damages (for unpaid overtime wages and spread of hours wages) by an interest rate of 9 percent which will yield the amount of prejudgment interest per year. Plaintiff was employed from May 9, 2017 to May 18, 2018. The approximate midpoint date between those two dates for calculating prejudgment interest is therefore November 11, 2017. Consequently, Plaintiff should receive prejudgment interest on a principal of $8,305.84, at an interest rate of nine percent per year as applied from June 9, 2018 to the date of entry of judgment.
7. Post-Judgment Interest
28 U.S.C. § 1961 provides that an award of post-judgment interest is mandatory in any civil case where money damages are recovered. Duffy v. Oyster Bay Indus., Inc., 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report and recommendation adopted, 2011 WL 2259749 (E.D.N.Y. June 2, 2011); see generally Begum v. Ariba Disc., Inc., 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest in a FLSA and NYLL wage-and-hour case). Therefore, I respectfully recommend that Plaintiff be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded $8,305.84 for unpaid overtime compensation and pre-judgment interest at the rate of 9% on this amount; $8,305.84 in liquidated damages; $5,480 in attorneys' fees; and $400 in costs. Plaintiff is directed to serve a copy of this Report and Recommendation on Defendants and file proof of service of the same on the docket by two weeks from the date of this Report and Recommendation.
NOTICE
Plaintiff shall have fourteen days, and Defendant shall have fourteen days, from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Plaintiff shall have fourteen days to serve and file any response. Defendant shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels. The failure to file timely objections shall result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).