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declining to award prejudgment interest on overlapping claims
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11-CV-5788 (ARR) (VVP)
07-23-2012
ANDRZEJ JANUS, on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. REGALIS CONSTRUCTION, INC., and JAN POMIANEK, Defendants.
REPORT AND RECOMMENDATION :
The plaintiff, Andrzej Janus, is a carpenter who brought this action against the defendants Regalis Construction, Inc. ("Regalis") and Jan Pomianek, for unpaid overtime wages he is owed under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the New York Labor Law ("NYLL"). The defendants have failed to appear, and the plaintiff has moved for a default judgment against both of them, submitting a memorandum of law on liability and damages, as well as affidavits and documentary evidence in support of the motion. The Honorable Allyne R. Ross referred this matter to the undersigned to conduct a damages inquest and to issue a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). On the basis of the plaintiff's submissions and the prior proceedings in this action, the court makes the following recommendations regarding liability and damages.
The complaint also asserts common law claims of breach of contract and quantum meruit, see Compl. ¶¶ 57-62, 70-73, but the plaintiff has only sought recovery under his statutory claims.
See Mem. of Law in Supp. of Mot. for Default J. ("Memorandum") (Dkt. No. 14); Decl. of Robert Wisniewski in Supp. of Mot. for Default J. with supporting exhibits ("Wisniewski Decl.") (Dkt. Nos. 14-1, 14-2, 14-5 to 14-8, 14-10 to 14-11); Decl. of Andrzej Janus ("Janus Decl.") with supporting exhibit (Dkt. Nos. 14-3, 14-4); Declaration of Ewa Jezuit ("Jezuit Decl.") (Dkt. No. 14-9).
I. JURISDICTION
The court has subject matter jurisdiction over the plaintiff's federal claims under the FLSA. See 28 U.S.C. § 1331; 29 U.S.C. § 201, et seq. His claims arising under the NYLL are so related to his FLSA claims that they form part of the same case or controversy and are therefore within the supplemental jurisdiction of the court. See 28 U.S.C. § 1367.
II. DEFAULT
"[A] party is not entitled to a default judgment as a matter of right; rather the entry of a default judgment is entrusted to the sound judicial discretion of the court." Cablevision of S. Conn. v. Smith, 141 F. Supp. 2d 277, 281 (D. Conn. 2001) (quoting Shah v. N.Y. Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999) (internal quotations omitted)). In civil actions, when a party fails to appear after receiving notice, the court normally has justification for entering default. See Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984).
The plaintiff has submitted affidavits attesting to service of process upon the defendants according to New York practice. See Wisniewski Decl. Exs. 3 & 4. Regalis was served via the New York Secretary of State, pursuant to N.Y. Bus. Corp. Law § 306. See Wisniewski Decl. ¶ 3 & Ex. 3. Pomianek was served via "nail-and-mail" service, pursuant to N.Y.C.P.L.R. 308(4). See Wisniewski Decl. ¶ 3 & Ex. 4. Such methods of service are adequate under the Federal Rules of Civil Procedure. See Fed R. Civ. P. 4(c), 4(e)(1) (allowing service of process under state methods), 4(h)(1) (same). The defendants have not responded to the complaint or the motion for default. The Clerk of Court entered separate defaults against each defendant on February 2, 2012. See Clerk's Entries of Default (Dkt. Nos. 6, 7). The grounds for default judgment are therefore established, and there is no reason to believe the default is based on a good-faith mistake or technicality. See Cablevision Sys. N.Y.C. Corp. v. Leath, No. 01 Civ. 9515, 2002 WL 1751343, at *2 (S.D.N.Y. July 26, 2002) (finding default willful where defendant never responded to complaint, appeared, or explained default). The defendants' inaction makes it unlikely that the court will be compelled at some future date to enter an order vacating the default judgment. Therefore, default judgment is warranted provided liability and damages are appropriately established.
III. LIABILITY
As a consequence of the defendants' default, the well-pleaded allegations of the complaint are deemed admitted, except as to the amount of the plaintiff's damages. See, e.g., Finkel v. Romanowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Even so, "after [a] default . . . it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law." Leider v. Ralfe, No. 01 Civ. 3137, 2004 WL 1773330, at *7 (S.D.N.Y. July 30, 2004) (citing In re Indus. Diamonds Antitrust Litig., 119 F. Supp. 2d 418, 420 (S.D.N.Y. 2000)), report adopted as modified by 387 F. Supp. 2d 283 (S.D.N.Y. 2005). Liability thus does not automatically attach from the well-pleaded allegations of the complaint, as it remains the court's responsibility to ensure that the factual allegations, accepted as true, provide proper bases for liability and relief. See Au Bon Pain, 653 F.2d at 65.
a. Factual Background
The well-pleaded allegations in the complaint establish the following facts. Regalis is a company in the business of restoring and renovating buildings in the New York area. Compl. ¶¶ 4, 17 (Dkt. No. 1). Pomianek served as Regalis' owner, officer, president, director, manager, employee, agent and/or majority shareholder. Id. ¶¶ 8, 19, 36. The plaintiff worked for the defendants as a carpenter from approximately August 2006 through December 2008. Id. ¶¶ 3, 21, 22. Under the plaintiff's original agreement with Regalis, his pay was $11 per hour. Id. ¶¶ 20, 21, 24. His hourly pay later rose to $12, and then to $13, where it remained for the duration of his employment. Id. ¶ 24. The plaintiff's work was satisfactory and complied with the terms of his employment agreement with the defendants. Id. ¶¶ 32, 59. Throughout his employment, the plaintiff typically worked about 50 to 60 hours per week. Id. ¶¶ 27-30. Although the plaintiff regularly worked more than 40 hours per week, the defendants did not pay him the overtime rate of 150 percent of his regular wage for the overtime hours. Id. ¶¶ 24, 31.
b. Enterprise Coverage
The plaintiff has made the requisite showing that his work for the defendants is covered by the FLSA's overtime requirements. The FLSA's overtime requirements apply to employees "engaged in commerce or in the production of goods for commerce" (individual coverage) and those "employed in an enterprise engaged in commerce or in the production of goods for commerce" (enterprise coverage). See 29 U.S.C. § 207(a)(1). The FLSA defines "commerce" as "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." Id. § 203(b). An "enterprise engaged in commerce or in the production of goods for commerce" is one that has "employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person," and whose annual gross volume of sales equals or exceeds $500,000. Id. §§ 203(s)(1)(A)(i)-(ii) (emphasis added).
The plaintiff is neither engaged in commerce, as that term is defined by the FLSA, nor in the production of goods for commerce. Nor is he employed by an enterprise engaged in the production of goods for commerce. Accordingly, the only way in which he satisfies all the elements of this cause of action is if he is employed by an enterprise engaged in commerce.
While Congress may have drafted the "commerce" language to ensure that the resulting legislation contained a constitutional nexus and that there was a sound basis for jurisdiction in the federal courts, at this stage the court's inquiry focuses on the plaintiff's ability to prove all the elements of the cause of action he asserts rather than the broader jurisdictional concerns. See, e.g., Padilla v. Manlapez, 643 F. Supp. 2d 298, 301-02 (E.D.N.Y. 2009); Velez v. Vallaso, 203 F. Supp. 2d 312, 330-33 (S.D.N.Y. 2003).
First, the complaint ultimately establishes the commerce element by alleging that the plaintiff's duties included framing, applying sheetrock, and installing drywall. Compl. ¶ 23. It also alleges that the defendants are enterprises whose "activities affect interstate commerce in that the employees of said defendants produce, sell or otherwise work on goods that have been moved in, or produced for, interstate commerce." Compl. ¶ 13. The court finds these allegations sufficient, because, in performing his duties, the plaintiff undoubtedly handled or worked with goods moved in or produced for commerce, like building materials and tools. See, e.g., Shim v. Millennium Grp., No. 08-CV-4022, 2009 WL 211367, at *3 (E.D.N.Y. Jan. 28, 2009) ("[T]he test is met if employees . . . merely handled supplies or equipment that originated out-of-state"); Archie v. Grand Cent. P'ship, 997 F. Supp. 504, 530-31 (S.D.N.Y. 1998) (sanitation workers using "bags, brooms, shovels, pails, scrapers . . . radios, books . . . [and] flashlights" handled goods "undoubtedly moved in interstate commerce"); Marshall v. Baker, 500 F. Supp. 145, 151 (N.D.N.Y. 1980) ("[A]n apartment complex is covered [under the FLSA] because the materials used by its maintenance personnel moved in interstate commerce."); see also Radulescu v. Moldowan, 845 F. Supp. 1260, 1262-65 (N.D. Ill. 1994) (collecting cases and examining legislative history to find congressional intent to "extend coverage of the FLSA to companies that use products that have moved in interstate commerce"). The plaintiff's employment as a carpenter does not fall within any exemptions to the FLSA's overtime requirements. See 29 U.S.C. §§ 207, 213.
The court notes, however, that such statements approach the outer boundaries of what can be considered factual assertions accepted as true after a default, as opposed to legal conclusions, which the court does not accept as true after a default. See Indus. Diamonds, 119 F. Supp. 2d at 420; see also Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009) (discussing and setting forth the Court's modern pleading standards with respect to conclusory legal assertions); Bell Atl. Corp. v. Twombly, 550 U.S. 544, passim (2007) (same).
Second, the plaintiff alleges that Regalis' sales exceed $500,000. Compl. ¶ 13. Because both prongs are met, the factual assertions in the complaint establish that Regalis was an enterprise engaged in commerce for FLSA purposes. See Dunlop v. Indus. Am. Corp., 516 F.2d 498, 501-02 (5th Cir. 1975) (finding virtually every enterprise in the nation doing the requisite dollar volume of business is covered by the FLSA); Archie, 997 F. Supp. at 530; Marshall, 500 F. Supp. at 148-51. The plaintiff is thus entitled to overtime pursuant to the FLSA.
c. Joint-Employer Liability
The well-pleaded allegations of the complaint also establish that the individual defendant, Pomianek, is the plaintiff's joint-employer and can be jointly and severally liable for the plaintiff's damages. The plaintiff argues, and the court agrees, that Pomianek is liable as a joint-employer because the plaintiff has sufficiently alleged that Pomianek was an officer possessing operational control of the plaintiff's work.
The FLSA and NYLL both broadly define "employer." Compare 29 U.S.C. § 203(d) with N.Y. Lab. Law §§ 2(6), 190(3). Courts determining whether joint-employment exists under the FLSA and NYLL use the same standards. See Hernandez v. La Cazuela de Mari Rest., Inc., 538 F. Supp. 2d 528, 534-35 (E.D.N.Y. 2007) ("[W]hether an individual is an 'employer' under New York law involves the same legal considerations as those under federal law."); see also Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 264 n.48 (S.D.N.Y. 2008); Chen v. St. Beat Sportswear, Inc., 364 F. Supp. 2d 269, 278 (E.D.N.Y. 2005).
Although the FLSA defines "employer" "expansive[ly]," its definition is not unlimited. See Falk v. Brennan, 414 U.S. 190, 195 (1973). For example, "[c]ourts that have found majority or sole shareholders liable have not relied solely on shareholder status, but have looked also to the degree of operational control a shareholder exerts over the corporation's functions." Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 311 (S.D.N.Y. 2011) (emphasis added) (citing Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999)); see also Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184, 192-93 (S.D.N.Y. 2003) (critical inquiry is not status, but whether individual had "operational control" over workers in question). "Courts have consistently held that 'a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.'" Hernandez, 538 F. Supp. 2d at 534 (quoting Moon v. Kwon, 248 F. Supp. 2d 201, 237 (S.D.N.Y. 2002)).
To inform the determination of whether a person is an "employer, courts conduct an "economic reality" test, using four primary factors: whether the alleged employer "(1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Zheng v. Liberty Apparel Co., 355 F.3d 61, 67 (2d Cir. 2003). The "economic reality" test examines the entire employment relationship, and a court may consider "any other factors it deems relevant to its assessment of the economic realities." Id. at 72. No single factor is dispositive. See id. at 71 (approving Herman's finding of joint-employment where three of four factors satisfied). "[I]n certain circumstances, an entity can be a joint employer under the FLSA even when it does not hire and fire its joint employees, directly dictate their hours, or pay them." Id. at 70, 72 (discussing Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947)).
The plaintiff alleges that Pomianek is his joint-employer and an officer, director, manager, majority shareholder, and/or owner of Regalis. Compl. ¶¶ 8, 19, 36, 44. Pomianek hired the plaintiff, possessed the capacity to fire him, and directed him as to which projects to work on. Compl. ¶ 41. Pomianek oversaw the plaintiff's work and set the plaintiff's wage and schedule. See id. ¶¶ 21, 24, 41; Janus Decl. ¶ 9. Pomianek physically handed the plaintiff his pay. Compl. ¶ 42. Although Pomianek may not have maintained employment records, the plaintiff alleges that the defendants "purposefully evaded recordkeeping requirements and failed to maintain proper and complete timesheets and payroll records." Id. ¶ 40. Thus, Pomianek's failure to satisfy the recordkeeping factor will not deter the court from finding the "economic reality" test satisfied. Accordingly, Pomianek, as on officer with operational control, is individually liable as a joint-employer for Regalis' failure to pay the plaintiff overtime wages.
While the complaint generally alleges that the plaintiff's wage was set by agreement with the "defendants," his declaration specifies that Pomianek set his wage. These contentions in the plaintiff's declaration are consistent with those in his complaint. Even without these contentions in the declaration, the court's analysis would remain unchanged.
The complaint generally alleges straight-time wage and minimum wage violations. See, e.g., Compl. ¶¶ 5, 33, 35, 48, 52, 64, 67, 68. The plaintiff, however, has not presented evidence of nor sought recovery for straight-time wage or minimum wage violations in any of his submissions. Accordingly this report and recommendation does not consider any unpaid straight-time or minimum wages.
IV. DAMAGES
The plaintiff seeks a total of $44,205.85 in damages, representing $12,245 in underpaid overtime compensation; $7,070 in underpaid spread-of-hours compensation; $3,407.38 in liquidated damages; $5,092.54 in prejudgment interest; $15,125 in attorney's fees; and $1,265.93 in costs. As discussed below, the court concludes that the plaintiff is not entitled to spread-of-hours recovery and that due to miscalculations in the plaintiff's submissions or reliance on incorrect legal authority, the plaintiff should recover only $30,307.23 in damages, including $4,009.96 in prejudgment interest, $10,280.00 in attorney's fees and $649.52 in costs. The court's damages calculations are reflected in an Appendix to this opinion.
a. Proof
Federal Rule of Civil Procedure 55(b) requires the court to make an independent assessment of damages when deciding a motion for default judgment. See SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. 1975). Damages are proven through an evidentiary hearing, or through affidavits and other documentary submissions that provide a factual basis for determining the amount of damages sought and awarded. See House v. Kent Worldwide Mach. Works, Inc., 359 F. App'x 206, 207 (2d Cir. 2010); Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997); Greyhound Exhibitgroup, 973 F.2d at 158. Having provided notice to the defaulting defendants, the court is permitted to consider affidavits on the appropriate amount of damages to be awarded. See, e.g., Transatlantic Marine, 109 F.3d at 111 ("[U]nder Rule 55(b)(2), it [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in the default judgment." (internal quotations omitted)); accord Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993); Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989).
An employee's recollections are presumed accurate where an employer has not kept records or contested the employee's assertions. See Perez v. Jasper Trading, Inc., No. 05-CV-1725, 2007 WL 4441062, at *5 (E.D.N.Y. Dec. 17, 2007). As the Supreme Court held,
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. 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. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 66-67 (2d Cir. 1997) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946)).
The plaintiff swears to his average hourly wages and average weekly schedule, and he submits calendars he began maintaining around February 2007, which specify the hours he worked each day from that point forward. See Janus Decl. ¶¶ 5-7 & Ex. 2. The plaintiff asserts that he has no other records of his hours, because the defendants always paid him in cash and never issued paystubs or tax forms. See Compl. ¶¶ 25, 26; Janus Decl. ¶ 8. The plaintiff also submitted a table of damages calculations created by his counsel based on the plaintiff's assertions. See Wisniewski Decl. ¶ 5 & Ex. 7; Janus Decl. ¶ 10; Jezuit Decl. ¶ 5. The defendants have not made any submissions regarding damages, so the plaintiff's evidence provides the basis for the factual findings and recommendations as to damages below.
The plaintiff has a limited understanding of English, so his calendars and sworn declaration were translated from Polish. See Janus Decl. Ex. 2; Wisniewski Decl. ¶ 14; Jezuit Decl. ¶ 4. The court relies on an English translation of the plaintiff's calendars prepared by Ewa Jezuit, a clerk in Mr. Wisniewski's office, who attests to experience translating documents between Polish and English and to fluency in both languages. See Jezuit Decl. ¶¶ 1, 4. The court also relies on an English translation of the plaintiff's declaration prepared by Bartosz Bilinski, a certified Polish translator hired by the plaintiff's counsel. See Wisniewski Decl. ¶ 14.
b. Willfulness
The plaintiff has sufficiently alleged that the defendants' violations of the FLSA and NYLL were "willful." A defendant's willful violation of the FLSA and NYLL affects damages calculations in two ways. First, a willful violation extends the FLSA's statute of limitations period from two years to three. See 29 U.S.C. § 255(a). Second, a "willful" violation makes a defendant liable for liquidated damages under the NYLL. See N.Y. Lab. Law § 198(1-a) (McKinney 2008). The test for willfulness under the FLSA is whether the employer "acted knowingly or 'showed reckless disregard for the matter of whether its conduct was prohibited by statute.'" See Saigon Grill, 595 F. Supp. 2d at 258 (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). The test for willfulness under the NYLL is whether the employer "knowingly, deliberately, or voluntarily disregard[ed] its obligation to pay wages." See Moon, 248 F. Supp. 2d at 235. Notwithstanding their differences in wording, the FLSA and NYLL tests parallel one another. See Saigon Grill, 595 F. Supp. 2d at 261 (citing Moon, 248 F. Supp. 2d at 235).
The current version of NYLL § 198(1-a) eliminates a plaintiff's need to show that an employer's violation was "willful," presuming liquidated damages are available unless the "employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law." N.Y. Lab. Law § 198(1-a) (McKinney 2012). The current version also allows an employee to recover 100 percent of unpaid wages as liquidated damages. See id. Because the plaintiff requests 25 percent of unpaid wages as liquidated damages and uses "willfulness" to justify such an award, he clearly relies upon the version of the statute in effect during his employment with the defendants from 2006 to 2008. See Mem. 8-10. The plaintiff has not briefed the retroactive applicability of the current amendments or sought to apply them to his claims, nor does the court find any basis for applying them. See Paz v. Piedra, No. 09 Civ. 03977, 2012 WL 121103, at *12 n.10 (S.D.N.Y. Jan. 12, 2012); see also CFCU Cmty. Credit Union v. Hayward, 552 F.3d 253, 262 (2d Cir. 2009) (requiring " 'clear' expression of legislative intent to apply a statute retroactively"); McLean v. Garage Mgmt. Corp., Nos. 10 Civ. 3950, 09 Civ. 9325, 2012 WL 1358739, at *8-10 (S.D.N.Y. Apr. 19, 2012) (finding no suggestion of legislative intent to apply amendments retroactively in legislative history or in statutory language).
In this case, the plaintiff generally alleges that the defendants' violations of FLSA and NYLL were willful. Compl. ¶¶ 39, 40; cf. Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121-22, 125 (2011) (finding complaint's allegations that defendants "willfully failed to pay plaintiffs" sufficient for default judgment determination of willfulness); Lavian v. Haghnazari, 884 F. Supp. 670, 680 (E.D.N.Y. 1995) (finding willfulness based upon complaint). The plaintiff may allege the defendants' knowledge or intent generally. See Fed. R. Civ. P. 9(b) ("Malice, intent, knowledge, and other condition of mind of a person may be averred generally."). The plaintiff also more specifically alleges that the defendants were aware of their obligation to pay the plaintiff 150 percent of his regular hourly rate for overtime work, but had instituted a policy not to pay their employees in accordance with the law. Compl. ¶¶ 34-35; cf. Jin v. Pacific Buffet House, Inc., No. 06-CV-579, 2009 WL 2601995, at *5 (E.D.N.Y. Aug. 24 2009) ("Because the defendant [ ] was aware of the requirements of law concerning the payment of minimum and overtime wages, any failure to pay the required wages must be considered willful . . . ."); Moon, 248 F. Supp. 2d at 231 ("Since the defendants knew that they had violated federal and state minimum wage and overtime laws and that they had not compensated [the plaintiff] in accordance with those laws, the defendants' violations were willful."). The plaintiff's unchallenged allegations thus adequately support a finding of willfulness. As a result, the plaintiff can recover unpaid wages under the FLSA for the three years preceding the filing of this action and can also recover liquidated damages under the NYLL.
c. Overtime Wages and Liquidated Damages
The plaintiff's submissions establish his right to recover unpaid overtime compensation under the FLSA and the NYLL. The FLSA limits the work week to "forty hours unless [an] employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). Applicable provisions of the NYLL essentially track the requirements of the FLSA. See N.Y. Comp. Codes R. & Regs. tit. 12, §§ 142-2.1 to -2.2; see also N.Y. Lab. Law §§ 160, 652. Both the FLSA and NYLL provide for full recovery of unpaid overtime wages. See 29 U.S.C. § 207(a); N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; N.Y. Lab. Law § 160. When the FLSA and NYLL both provide the same amount of recovery of unpaid overtime wages, courts have not provided separate awards for those unpaid wages under both statutes, because doing so would provide a double recovery. See, e.g., Saigon Grill, 595 F. Supp. 2d at 262 n.44. Thus, the determination of which statute should provide the basis for recovery depends upon the statute of limitations and upon which provides the greater amount of liquidated damages. See Perez, 2007 WL 4441062, at *6.
The FLSA entitles a plaintiff to liquidated damages in an amount equal to the wages owed, while the NYLL entitles a plaintiff to 25 percent of the wages owed. 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(1-a) (McKinney 2008). Thus, to the extent the plaintiff's damages are within the FLSA period, he has sought recovery under the federal statute. See Mem. 8-9. The plaintiff seeks recovery of unpaid overtime wages dating back to September 2006, but did not file suit until November 29, 2011. See 29 U.S.C. § 256 (FLSA action commences when complaint filed). Finding the defendants' violations willful, the court applies a three-year statute of limitations to the FLSA claims. See 29 U.S.C. § 255(a). Thus the court recommends recovery under the FLSA for damages arising from wages underpaid from November 29, 2008 through December 18, 2008. See Janus Decl. ¶ 2. For the period from September 2006 through November 28, 2008, the plaintiff is entitled to recover damages under the NYLL instead.
The court follows its own precedent set forth in Jin and Perez, but notes a split within this Circuit, indeed even within the Eastern District, regarding awards of liquidated damages under both the FLSA and NYLL for the same underpaid wages. Compare Jin, 2009 WL 2601995, at *9 and Perez, 2007 WL 4441062, at *6-7 with Santillan v. Henao, 822 F. Supp. 2d 284, 297 (E.D.N.Y. 2011) ("[B]ecause each award serves fundamentally different purposes, plaintiff may be granted both awards.") and Saigon Grill, 595 F. Supp. 2d at 261-62.
The NYLL's statute of limitations is six years, so timeliness is not an issue for the plaintiff's state claims. See N.Y. Lab. Law §198(3).
The plaintiff's FLSA damages are calculated as follows. A cause of action under the FLSA accrues not when a worker actually works for his wages, but "at each regular payday immediately following the work period during which services were rendered." Moon, 248 F. Supp. 2d at 231; see also 29 U.S.C. § 255(a); Acosta v. Yale Club of N.Y.C., No. 94 Civ. 0888, 1995 WL 600873, at *3 (S.D.N.Y. Oct. 12, 1995). Between November 29, 2008 and December 18, 2008, the defendants underpaid the plaintiff's overtime wages by $247. See Wisniewski Decl. Ex. 7 (rows dated 12/13/08 to 12/27/07). Although the plaintiff's damages calculations treat an additional $214.50 from the preceding two weeks as due on Sunday, November 29, 2008 and therefore as part of the plaintiff's FLSA recovery, including such wages within the FLSA's statute of limitations period is inconsistent with the plaintiff's other submissions. See Janus Decl. ¶ 10 (swearing to accuracy of damages calculations); Wisniewski Decl. Ex. 7 (row dated 11/29/08 calculating $214.50 in liquidated damages upon $214.50 of unpaid overtime). The plaintiff has not explicitly specified his paydays or the periods his paydays covered. His submissions, however, indicate that his work week lasted from Monday to Saturday, see Janus Decl. ¶ 5, and that he was paid "at the end of each week," see Janus Decl. ¶ 9. Therefore, the plaintiff's $214.50 should have been paid on Saturday, November 28, 2008, which is outside the FLSA's statute of limitations period. Under the FLSA, liquidated damages double the amount of unpaid overtime wages. Therefore, the plaintiff is entitled to recover $494.00 as FLSA damages.
Inexplicably, the plaintiff's attorney chose to depict payments for two-week periods ending on Sundays. See Wisniewski Decl. Ex. 7.
The plaintiff's calculations for unpaid overtime wages provided under the NYLL reflect $1,782 for 2006, $5,292.25 for 2007, and $4,923.75 for 2008. See Wisniewski Decl. Ex. 7; Jezuit Decl. ¶¶ 6-7 (explaining calculations). The court reduces the plaintiff's requested overtime pay by $99 because it cannot reasonably determine whether the plaintiff worked for the defendants during the last week of August 2006. The complaint alleges that the plaintiff began working for the defendants in "approximately August 2006." Compl. ¶¶ 3, 21, 22. The plaintiff's memorandum, his sworn declaration, and his counsel's clerk's sworn declaration state that he began working for the defendants in September 2006. See Mem. 2; Janus Decl. ¶ 2; Jezuit Decl. ¶ 10 (referring to period ending 9/9/06 as the "first week" not "first weeks"). While the title of his table of damages states "Dates of employment: September 2006-12/18/2008," his actual calculations include the last week of August 2006 in his recovery, for a recovery covering 122 weeks. See Wisniewski Decl. Ex. 7 (row dated 9/9/06 calculating $198 as two weeks' unpaid overtime). The plaintiff's sworn declaration also states that he worked for approximately 125 weeks and that the damages calculations are accurate. See Janus Decl. ¶ 10. His counsel's clerk also swears to their accuracy. See Jezuit Decl. ¶ 11. The court not only lacks a reasonable basis for awarding the $99 of unpaid overtime for the last week of August 2006, but also credits the multiple explicit statements that the plaintiff began working for the defendants in September 2006. See House, 359 F. App'x at 207 ("[T]here must be a basis upon which the court may establish damages with reasonable certainty."). Accordingly, the plaintiff may recover $11,899 of unpaid overtime wages under the NYLL. Liquidated damages are 25 percent of this amount, or $2,974.75. Therefore, the plaintiff is entitled to recover $14,873.75 in NYLL damages.
This $99 reduction will also affect the court's calculation of liquidated damages, as shown in the Appendix, and of prejudgment interest, as described below.
d. Prejudgment Interest
The plaintiff is also entitled to recover prejudgment interest under New York law. FLSA liquidated damages "serve as a form of pre-judgment interest, and for that reason a plaintiff who prevails on his FLSA claim and receives liquidated damages may not also receive an award of interest." Saigon Grill, 595 F. Supp. 2d at 261; see also Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 715 (1945); Herman, 172 F.3d at 142; Reich, 121 F.3d at 71. In contrast, an employee recovering under the NYLL is entitled to prejudgment interest since NYLL liquidated damages are punitive in purpose. See N.Y. Lab. Law § 198(1-a) (McKinney 2008); Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253, 265 (2d Cir. 1999). Prejudgment interest is regularly calculated at the rate of nine percent per annum on unpaid wages recovered under the NYLL. See N.Y.C.P.L.R. 5001, 5004; see also Maldonado v. La Nueva Rampa, Inc., No. 10 Civ. 8195, 2012 WL 1669341, at *11 (S.D.N.Y. May 14, 2012) ("Prejudgment interest applies only to the amount of compensatory damages, and excludes the amount of liquidated damages."); Jin, 2009 WL 2601995, at *9 ("The plaintiff is entitled to an award of prejudgment interest under state law for that portion of unpaid wages for which she is being compensated under state law."). Therefore, the plaintiff should receive prejudgment interest calculated at a rate of nine percent per annum on his unpaid wages recovered under the NYLL.
The plaintiff argues that he is also entitled under the NYLL to prejudgment interest at a rate of nine percent per annum on the overtime underpaid from November 29, 2008 through December 18, 2008, even though the plaintiff is recovering those wages, along with liquidated damages, under the FLSA. See Mem. 10; Wisniewski Decl. Ex. 7 (row dated 12/13/08 calculating $77.81 of prejudgment interest on $247 of unpaid FLSA overtime). This court and others have previously declined such overlapping awards. See Jin, 2009 WL 2601995, at *9 ("The plaintiff acknowledges that, because liquidated damages under the FLSA are meant in part to compensate for the delay in obtaining wages, prejudgment interest is not available for the wages recovered under the FLSA."); see also Brock v. Superior Care, Inc., 840 F.2d 1054, 1064-65 (2d Cir. 1988); Maldonado, 2012 WL 1669341, at *10 (rejecting NYLL prejudgment interest on wages underlying FLSA recovery as double recovery); Mclean, 2012 WL 1358739, at Paz, 2012 WL 121103, at *13; Santillan v. Henao, 822 F. Supp. 2d 284, 298 (E.D.N.Y. 2011). There is a split among the district courts in this Circuit on this issue, however, and some courts have allowed plaintiffs to recover NYLL prejudgment interest on wages for which recovery was awarded under the FLSA. See, e.g., Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *9-10 (S.D.N.Y. May 8, 2007). The court declines to alter its views on this issue. Accordingly, the plaintiff should not recover state prejudgment interest on the unpaid wages underpinning his FLSA recovery.
Without discussion, the plaintiff cites a footnote in a Circuit case, Thomas v. iStar Fin., Inc., 629 F.3d 276 (2d Cir. 2010), amended by 652 F.3d 141 (2d Cir. 2011), for the proposition that state prejudgment interest can be awarded on unpaid wages recovered under the FLSA. See Mem. 10. But that was not the issue presented in Thomas, nor was it even addressed in dictum. Thomas addressed the selection of the appropriate interest rate where a plaintiff is entitled to conflicting federal and state prejudgment interest rates on awards "based on both state and federal law with respect to which no distinction is drawn . . . ." See Thomas, 652 F.3d at 150. Thomas does not inform the court's analysis of this case, because the plaintiff's recovery is under the FLSA, where prejudgment interest is not available.
The starting date for the interest calculation is another matter. New York law permits either of two options: "Where [ ] 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) (emphasis added). The choice is left to the court's discretion. See Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998) holding modified by 271 F.3d 81 (2d Cir. 2001); 155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-61, 647 N.Y.S.2d 30, 32 (2d Dep't 1996)).
The plaintiff calculated prejudgment interest for the various underpayments periodically. See Jezuit Decl. ¶¶ 9, 10 (explaining interest calculations). The plaintiff's choice is theoretically acceptable, but his execution includes inaccuracies, such as including principal sums that are not entitled to prejudgment interest, miscounting the number of weeks that payments remained outstanding, and applying a weekly interest rate to wages that were underpaid during two-week time periods. Because of these errors, the court faces numerous corrective calculations. See Janus Decl. ¶ 5 (employment lasted approximately 125 weeks). Therefore, the court exercises its discretion to adopt the "intermediate date" method. Cf. Huerta v. Bakery, No. 10-CV-4754, 2012 WL 1100647, at *13 (E.D.N.Y. Feb. 17, 2012) (choosing intermediate date method where damages accrued at "essentially regular rate over the entire period of each plaintiff's employment" and "interest rate is simple rather than compounded" to avoid "laborious calculation of interest owed on each week's unpaid wages"), report adopted as modified by 2012 WL 1107655 (E.D.N.Y. Mar. 30, 2012). A court has discretion to choose a reasonable accrual date. See Koylum, Inc. v. Peksen Realty Corp., 357 F. Supp. 2d 593, 597 (E.D.N.Y. 2005) (collecting cases); Huerta, 2012 WL 1100647, at *13 (using intermediate date between earliest date of cause of action and date action was filed); Pavia v. Around the Clock Grocery, Inc., No. 03-CV-6465, 2005 WL 4655383, at *8 (E.D.N.Y. Nov. 15, 2005) (using intermediate date between when plaintiff began and ceased working). Computing prejudgment interest from a point halfway between the plaintiff's first and last paydays outside the FLSA's statute of limitations should be the simplest and most practical approach in these circumstances. October 20, 2007 will serve as the intermediate date in this case.
The plaintiff did not compute a per diem rate. The court calculates a daily interest rate of .0002 (nine percent divided by 365 days), which it multiplies by the plaintiff's NYLL recovery of $11,889, resulting in $2.38 per diem.
The court thus finds the plaintiff entitled to prejudgment interest totaling $4,009.96 from October 20, 2007 through May 31, 2012, plus an additional $2.38 per diem from June 1, 2012 through the date of judgment.
e. Spread-of-Hours Wages
The plaintiff has requested but is not entitled to recover "spread-of-hours" compensation. According to New York law, "[a]n employee shall receive one hour's pay at the basic minimum hourly wage rate, in addition to the minimum wage required in this Part for any day in which: (a) the spread of hours exceeds 10 hours . . . ." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4; N.Y. Lab. Law § 652. "Spread of hours" is defined as "the interval between the beginning and end of an employee's workday . . . . [including] working time plus time off for meals plus intervals off duty." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.18.
The district courts in this Circuit are split over whether "in addition to the minimum wage" means that an employee earning more than the hourly minimum wage is legally entitled to spread-of-hours pay. The majority are of the view that those earning more than the minimum wage are not entitled to spread-of-hours pay. See, e.g., Ellis v. Common Wealth Worldwide Chauffeured Transp. of NY, LLC, No. 10-CV-1741, 2012 WL 1004848, at *6 (E.D.N.Y. Mar. 23, 2012) (finding "strong weight of authority and the plain statutory language lead this court to the conclusion that an employer need only pay spread-of-hours wages to employees making minimum wage"). The majority also follow the New York Department of Labor's ("DOL") interpretation of the statute. See, e.g., Zubair v. EnTech Eng'g, P.C., 808 F. Supp. 2d 592, 601 (S.D.N.Y. 2011) (agreeing with DOL's position); see also N.Y. Dep't of Labor 08/26/09 Op. Ltr. at 1, File No. RO-08-0086; N.Y. Dep't of Labor 10/15/07 Op. Ltr. at 1, File No. RO-07-0106; N.Y. Dep't of Labor 03/16/07 Op. Ltr. at 1, File No. RO-07-0009.
Some courts in this Circuit have awarded spread-of-hours pay to employees earning more than the minimum wage without addressing the split. See, e.g., Santillan, 822 F. Supp. 2d at 295-96; Cuzco v. Orion Builders, Inc., No. 06 Civ. 2789, 2010 WL 2143662 at *2, *4 (S.D.N.Y. May 26, 2010). At least one has directly addressed the conflict, but has nonetheless extended spread-of-hours pay to all employees. See Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 339-40 (S.D.N.Y. 2005) (finding provision applies to all employees regardless of hourly wage).
The majority, however, disagrees with Yang. As one court observed, "a large number of cases since Yang have disagreed with that court's decision not to grant deference to the [DOL] Opinion Letters and [Yang's] holding that the spread-of-hours regulation is applicable to all workers regardless of whether they are paid minimum wage." Zubair, 808 F. Supp. 2d at 601; accord Seenaraine v. Securitas Sec. Servs. USA, Inc., 37 A.D.3d 700, 701-02, 830 N.Y.S.2d 728, 729 (2d Dep't 2007); see also Ellis, 2012 WL 1004848, at *8 ("If the Legislature had desired the statute to apply to all wage earners, it would not have referenced the minimum wage or easily could have included language stating that the provision applied to all wage earners."); Li Ping Fu v. Pop Art Int'l Inc., No. 10 Civ. 8562, 2011 WL 4552436, at *6-7 (S.D.N.Y. Sept. 19, 2011) (discussing split and siding with majority), report adopted as modified by 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011).
The court agrees with the majority in this Circuit that spread-of-hours pay should not be recovered by those earning more than the minimum wage. Throughout his employment, the plaintiff earned more than the minimum wage. See Compl. ¶ 21, 24; see also N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.1(a); N.Y. Lab. Law § 652(1); Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 246 (2d Cir. 2011) (observing applicability of State minimum wage). Therefore, the court recommends that no spread-of-hours damages be awarded.
V. ATTORNEY'S FEES AND COSTS
The plaintiff also seeks an award for attorney's fees and costs. Both the FLSA and NYLL provide for such an award. See 29 U.S.C. § 216(b); N.Y. Comp. Codes R. & Regs. tit. 22, § 130-1.1; N.Y. Lab. Law §§ 198(1-a) (McKinney 2008), 663(1) (McKinney 2008); see also Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008). For the reasons set forth below, the court finds an award of fees and costs appropriate.
The court calculates a "presumptively reasonable fee" for the work performed in given case by multiplying the number of hours reasonably expended by a reasonable hourly rate. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany and Albany Cnty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008); see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The court determines a reasonable rate by "looking to the prevailing market rates for comparable services in the district in which the case is filed." Shim v. Millenium Grp., 2010 WL 2772493, at *3 (E.D.N.Y. June 21, 2010), report adopted by 2010 WL 2772342 (E.D.N.Y. July 12, 2010); see also Perdue v. Kenny A., 130 S. Ct. 1662, 1672 (2010) (looking to "prevailing market rates"); Blum v. Stenson, 465 U.S. 886, 895 (1984); Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009); Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). The court is guided by what a reasonable paying client would pay "to induce a capable attorney to undertake the representation of a meritorious . . . case." Perdue, 130 S. Ct. at 1672 (2010); accord Arbor Hill, 522 F.3d at 190.
To aid the court's decision, the plaintiff must provide a factual basis for a fee award. See Hensley, 461 U.S. at 433-34. In this Circuit, that entails submitting contemporaneous billing records documenting the date, hours expended, and nature of work performed by each attorney. See N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48, 1154 (2d Cir. 1983); Private Sanitation Union Local 813, Int'l Bhd. of Teamsters v. Gaeta-Serra Assocs., Inc., 2005 WL 2436194, at *3-4 (E.D.N.Y. Aug. 12, 2005), report adopted by 2005 WL 2429311 (E.D.N.Y. Sept. 30, 2005). Where adequate records are not submitted, the court may deny fees altogether or reduce the award. See Carey, 711 F.2d at 1148; Gaeta-Serra Assocs., 2005 WL 2436194, at *3-4. The court may also exclude excessive, duplicative, or unnecessary hours. See, e.g., Hensley, 461 U.S. at 434; Shim, 2010 WL 2772493, at *4.
To support the fee request, the plaintiff's counsel has submitted an affidavit and contemporaneous billing records, detailing the tasks undertaken, hourly rates charged, and time each attorney spent on the case. See Wisniewski Decl. ¶ 8 & Ex. 8. Until February 28, 2011, the plaintiff's counsel's hourly rates were $350 for Mr. Wisniewski, $175 for associates, and $75 for paralegals/pre-admission attorneys. See id. ¶ 11. As of March 2011, the plaintiff's counsel's rates rose to $450 for Mr. Wisniewski, $225 for associates, and $125 for paralegals/pre-admission attorneys. See id. The billing records reflect no work before August 3, 2011, so only the higher rates apply in this case. See id. Ex. 8.
The plaintiff relies on civil rights cases from the Southern District of New York to support his counsel's $450 rate for partners and $125 rate for paralegals. See Mem. 12; Wisniewski Decl. ¶ 11. Courts in this district, however, typically find that prevailing hourly rates for law firm partners range between $300 and $400. See Konits v. Karahalis, 409 F. App'x 418, 422 (2d Cir. 2011) (finding district court's determination that prevailing rates in Eastern District range from $300-$400 was "amply supported"); Simmons, 575 F.3d at 172 (observing Eastern District's prevailing rates are "substantially lower" than Southern District's); Santillan, 822 F. Supp. 2d at 300 (reducing partner rate from $450 to $375); Shim, 2010 WL 2772493, at *3 (surveying reasonable rate cases). Prevailing hourly rates for paralegals in this district are typically below $125. See, e.g., Siracuse v. Program for the Dev. of Human Potential, 2012 WL 1624291, at *29 (E.D.N.Y. Apr. 30, 2012) (reducing paralegal rate from $100 to $85 "consistent with rates generally awarded in this district"); Gesualdi v. Interstate Masonry Corp., No. 11 Civ. 958, 2011 WL 7032900, at *10 (E.D.N.Y. Nov. 16, 2011) (reducing paralegal rate from $100 to $80 "in light of the usual and customary rates charged in this district"), report adopted as modified by 2012 WL 27441 (E.D.N.Y. Jan. 4, 2012); Ferrara v. All-Around Trucking Inc., No. 10 Civ. 5845, 2011 WL 6026300, at *6 (E.D.N.Y. Nov. 8, 2011) (approving $90 paralegal rate), report adopted by 2011 WL 6026294 (E.D.N.Y. Dec. 2, 2011).
The plaintiff relies on Brady v. Wal-Mart Stores, Inc., No. 03-CV-3843, 2010 WL 4392566 (E.D.N.Y. Oct. 29, 2010) to support his $225 associate rate. See Mem. 12; Wisniewski Decl. ¶ 11. The Brady court observed, "[f]ee awards in this district in recent years have approved hourly rates in the range of $200 to $400 for partners, $100 to $295 for associates, and $70-$100 for paralegal assistants." 2010 WL 4392566, at *5. The court finds that Brady's ranges bookend reasonable rates in the Eastern District.
Although Mr. Wisniewski's experience in wage litigation is extensive, see Wisniewski Decl. ¶ 12, this particular case, a default, is relatively straightforward, and the work involved does not justify high hourly rates. See Callier v. Superior Bldg. Servs., Inc., No. 09-CV-4590, 2010 WL 5625906, at *6 (E.D.N.Y. Dec. 22, 2010) (reducing partner rate from $400 to $350 and approving $250 for associates because of FLSA case's simple nature with two plaintiffs and no appearances by defendants), report adopted by 2011 WL 222458 (E.D.N.Y. Jan. 21, 2011); Shukla v. Shama, No. 07-CV-2972, 2010 WL 8435857, at *14 (E.D.N.Y. Dec. 15, 2010) (reducing attorney rates from $425 to $350 for partners and to $150-$250 for associates, and paralegal rate from $100 to $70 in FLSA action), report adopted by 2012 WL 607667 (E.D.N.Y. Feb. 24, 2012); BBY Solutions, Inc. v. Schwartz, No. CV 11-0947, 2011 WL 6986937, at *6-7 (E.D.N.Y. Nov. 17, 2011) (limiting partners to $400 and approving $150-$310 for associates based on experience), report adopted by 2012 WL 90347 (E.D.N.Y. Jan. 11, 2012); Blue Moon Media Grp., Inc. v. Field, No. CV 08-1000, 2011 WL 4056068, at *13 (E.D.N.Y. Apr. 11, 2011) (reducing rates to $400 for partners, $175-$325 for associates based on experience, and $90 for paralegal), report adopted by 2011 WL 4056088 (E.D.N.Y. Sept. 12, 2011). Further, the associates working on the case are relatively inexperienced. Compare Wisniewski Decl. ¶ 13 (associates Taubenfeld and Colon received J.D.'s in 2008 and 2011, respectively) with Santillan, 822 F. Supp. 2d at 300 (finding $250 reasonable for senior associate with ten years of experience). But see Brady, 2010 WL 4392566 at *5 (reducing associate rates in FLSA case from $385 to $225 for five to six years of experience, and from $250-$300 to $175 for one year or less). The court therefore recommends hourly rates of $350 for Mr. Wisniewski, $200 for associates, and $100 for paralegals.
As for hours billed, the court finds the number reasonable with one exception. The plaintiff's records reflect a total of 70.2 hours, including 13.2 hours for Mr. Wisniewksi (partner), 2.6 hours for Michael Taubenfeld (associate), 18 hours for Kara Colon (associate), and 36.4 hours for paralegals. Wisniewski Decl. ¶ 15 & Ex. 8. These hours are well within the realm of what the court would expect for a case of this nature. See Shim, 2010 WL 2772493, at *6 ("Litigating a simple default should not have reasonably taken more than 150 to 200 hours. . . ."). The court notes, however, that the plaintiff is not entitled to anticipated fees. See Brightstar US, Inc. v. Cellpoint, Inc., No. 07-CV-1893, 2010 WL 300367, at*4 (E.D.N.Y. Jan. 20, 2010) (declining to award anticipated fees as speculative); Kingsvision Pay-Per-View, Ltd. v. Soluna Bar Lounge, Inc., No. 06-CV-5066, 2008 WL 2673340, at *6 (E.D.N.Y. May 27, 2008) ("[C]ourts ordinarily deny requests for attorneys' fees to be incurred in the future."), report adopted by 2008 WL 2673338 (E.D.N.Y. Jun 27, 2008). Therefore, the court deducts the six hours attributed to Mr. Wisniewski on April 27, 2012 for "[p]rospective work until the completion of the inquest." See Wisniewski Decl. Ex. 8. For the reasons mentioned above, the court recommends that the plaintiff be awarded $10,280 in attorney's fees.
The plaintiff should also recover costs. "Attorney's fees awards 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). The plaintiff listed expenses totaling $1,265.93, including a $350 filing fee, $128 for service of process, and various charges for photocopying, postage, archiving, interpreting services, and PACER access. See Wisniewski Decl. Ex. 8. All but two of these expenses should be reimbursed. First, $482.35 of photocopying is excessive for this case, a default without discovery. Second, the plaintiff provides no explanation for the $134.06 "GRM - Archiving Fee." In the absence of further justification, the court is reluctant to award either of these costs. Therefore, the plaintiff's award for costs should be $649.52, unless the plaintiff provides adequate justification for the photocopying and archiving costs he seeks.
VI. CONCLUSION
In accordance with the above considerations, the undersigned hereby RECOMMENDS that a judgment be entered in favor of the plaintiff against both defendants as follows:
1. Awarding $494.00 in unpaid overtime and liquidated damages under the FLSA;
2. $14,873.75 in unpaid overtime and liquidated damages under the NYLL;
3. Prejudgment interest totaling $4,009.96 through May 31, 2012, plus an additional $2.38 per diem from June 1, 2012 through the date of judgment;
4. $10,280 in attorney's fees; and
5. $649.52 in costs.
* * * * * * *
Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b); see, e.g., Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
Counsel for the plaintiff shall serve a copy of this Report and Recommendation on the defendants by regular mail and file proof of such service in the record.
Respectfully Submitted,
/s/_________
VIKTOR V. POHORELSKY
United States Magistrate Judge Dated: Brooklyn, New York
July 23, 2012
Appendix: Revised Damages Calculations
End of Period Total Hours Regular Hours Overtime Hours Regular Hourly Rate Overtime Hourly Rate Underpaid Overtime NYLL Liquidated Damages FLSA Liquidated Damages 9/9/2006 58 40 18 $11.00 $16.50 $99.00 $24.75 N/A 9/23/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 10/7/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 10/21/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 11/4/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 11/18/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 12/2/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 12/16/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 12/30/2006 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 2006 Subtotal 986 680 306 $1,683.00 $420.75 $0.00 1/13/2007 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 1/27/2007 116 80 36 $11.00 $16.50 $198.00 $49.50 N/A 2/10/2007 118 80 38 $12.00 $18.00 $228.00 $57.00 N/A 2/24/2007 112 80 32 $12.00 $18.00 $192.00 $48.00 N/A 3/10/2007 127.5 80 47.5 $12.00 $18.00 $285.00 $71.25 N/A 3/24/2007 97.5 80 17.5 $12.00 $18.00 $105.00 $26.25 N/A 4/7/2007 106 80 26 $12.00 $18.00 $156.00 $39.00 N/A 4/21/2007 107.5 80 27.5 $12.00 $18.00 $165.00 $41.25 N/A 5/5/2007 113 80 33 $12.00 $18.00 $198.00 $49.50 N/A 5/19/2007 128 80 48 $12.00 $18.00 $288.00 $72.00 N/A 6/2/2007 116 80 36 $12.00 $18.00 $216.00 $54.00 N/A 6/16/2007 120 80 40 $12.00 $18.00 $240.00 $60.00 N/A 6/30/2007 119.5 80 39.5 $12.00 $18.00 $237.00 $59.25 N/A 7/14/2007 106 80 26 $12.00 $18.00 $156.00 $39.00 N/A 7/28/2007 107.5 80 27.5 $12.00 $18.00 $165.00 $41.25 N/A 8/11/2007 41.5 40 1.5 $13.00 $19.50 $9.75 $2.44 N/A 8/25/2007 120.5 80 40.5 $13.00 $19.50 $263.25 $65.81 N/A 9/8/2007 107 80 27 $13.00 $19.50 $175.50 $43.88 N/A 9/22/2007 115 80 35 $13.00 $19.50 $227.50 $56.88 N/A 10/6/2007 115 80 35 $13.00 $19.50 $227.50 $56.88 N/A 10/20/2007 122.5 80 42.5 $13.00 $19.50 $276.25 $69.06 N/A 11/3/2007 117 80 37 $13.00 $19.50 $240.50 $60.13 N/A 11/17/2007 125.5 80 45.5 $13.00 $19.50 $295.75 $73.94 N/A 12/1/2007 120.5 80 40.5 $13.00 $19.50 $263.25 $65.81 N/A 12/15/2007 117 80 37 $13.00 $19.50 $240.50 $60.13 N/A 12/29/2007 85 78 7 $13.00 $19.50 $45.50 $11.38 N/A 2007 Subtotal 2897 2038 859 $5,292.25 $1,323.06 $0.00 1/12/2008 96 78 18 $13.00 $19.50 $117.00 $29.25 N/A 1/26/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 2/9/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 2/23/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 3/8/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 3/22/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 4/5/2008 109.5 80 29.5 $13.00 $19.50 $191.75 $47.94 N/A 4/19/2008 108 80 28 $13.00 $19.50 $182.00 $45.50 N/A 5/3/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 5/17/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 5/31/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 6/14/2008 118 80 38 $13.00 $19.50 $247.00 $61.75 N/A 6/28/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 7/12/2008 40 40 0 $13.00 $19.50 $0.00 $0.00 N/A 7/26/2008 100 80 20 $13.00 $19.50 $130.00 $32.50 N/A 8/9/2008 108 80 28 $13.00 $19.50 $182.00 $45.50 N/A 8/23/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 9/6/2008 107 80 27 $13.00 $19.50 $175.50 $43.88 N/A 9/20/2008 109 80 29 $13.00 $19.50 $188.50 $47.13 N/A 10/4/2008 118 80 38 $13.00 $19.50 $247.00 $61.75 N/A 10/18/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 11/1/2008 116 80 36 $13.00 $19.50 $234.00 $58.50 N/A 11/15/2008 117 80 37 $13.00 $19.50 $240.50 $60.13 N/A 11/29/2008 113 80 33 $13.00 $19.50 $214.50 $53.63 N/A 12/13/2008 118 80 38 $13.00 $19.50 $247.00 N/A $247.00 12/27/2008 38.5 38.5 0 $13.00 $19.50 $0.00 N/A $0.00 2008 Subtotal 2792 1996.5 795.5 $5,170.75 $1,230.94 $247.00 Grand Total 6675 4714.5 1960.5 $12,146.00 $2,974.75 $247.00