Opinion
99 CIV. 2095 (DLC)
February 21, 2002
Kai De Graaf, New York, New York, for plaintiff.
MEMORANDUM OPINION AND ORDER
Plaintiff Oi Kwan Lai ("Lai") filed this action on March 19, 1999, alleging, among other things, that the defendants retaliated against her in violation of federal and state labor laws for her filing of a Fair Labor Standards Act ("FLSA") complaint. A default was entered on December 29, 1999, against defendants Eastpoint International, Inc., Eastpoint Intl, Inc., Couture Enterprises Limited, and Choe Ltd (collectively, the "Eastpoint Defendants"). On August 31, 2000, this Court granted summary judgment to defendants Donna Karan International, Inc., and The Donna Karan Store Corporation, d/b/a DKNY. A default was entered against defendant C.S. Choe ("Choe") on November 20, 2000, and on the same day, all claims against defendant Control Reach Group, Ltd. were dismissed.
On November 20, the above captioned action was referred to Magistrate Judge Dolinger to conduct an assessment of damages against the Eastpoint Defendants and defendant Choe. Evidentiary submissions were received on behalf of plaintiff Lai, including her own affidavit and that of her attorney together with pertinent documentation, but none were received on behalf of the Eastpoint Defendants or Choe. Magistrate Judge Dolinger issued a Report and Recommendation (the "Report") on January 7, 2002, recommending that Lai be awarded back pay in the amount of $4,857.60, liquidated damages in the same amount, compensatory damages of $40,181, attorney's fees of $32,116, and costs in the amount of $8,321.43. Thus, the Report recommended that judgment be entered in Lai's favor jointly and severally against the Eastpoint Defendants and Choe in the amount of $90,333.63.
Because the Eastpoint Defendants and Choe have failed to respond to plaintiff's evidence of the back pay owed to her, her showing of the amount due is conclusive. See, e.g., Chen v. Jenna Lane, Inc., 30 F. Supp.2d 622, 624 (S.D.N.Y. 1998). Moreover, Lai is entitled to an award of liquidated damages in an amount equal to the back pay claimed, for the defendants have not demonstrated that they acted in good faith nor on reasonable grounds. 29 U.S.C. § 216 (b); see Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142-43 (2d Cir. 1999).
In 1977, Congress amended the remedies provision of the ELSA, Section 216(b), to allow plaintiffs who demonstrate retaliation under Section 215(a)(3) to obtain "legal or equitable relief." 29 U.S.C. § 216 (b). Although the Second Circuit has yet to determine the scope of available remedies under the ELSA, at least two circuits have interpreted the relief to include compensatory, punitive, and emotional distress damages. See Williamson v. General Dynamics Corp., 208 F.3d 1144, 1153 (9th Cir. 2000); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 284 (7th Cir. 1993). In light of the evidence submitted in support of Lai's claim for compensatory damages, including her treatment by both a physician and a psychiatrist and evidence of out-of-pocket medical expenses, Magistrate Judge Dolinger concluded that the plaintiff had demonstrated some psychiatric injury properly attributable in part to her retaliatory treatment by defendants. Looking at similar damages calculations in both federal and state case law, Magistrate Judge Dolinger concluded that an award of $40,181 in compensatory damages was appropriate under the circumstances. See, e.g., Annis v. Westchester County, 136 F.3d 239, 249 (2d Cir. 1998); Ginsberg v. Valhalla Anesthesia Assocs., 1997 WL 669870, at *4 (S.D.N.Y. Oct. 28, 1997); Anderson v. YARP Restaurant, Inc., 1997 WL 27043, at *8 (S.D.N.Y. Jan. 23, 1997).
Magistrate Judge Dolinger also recommended the award of $32,116 in attorney's fees, calculated using the "lodestar" approach. 29 U.S.C. § 216 (b); see Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). In reaching this figure, Magistrate Judge Dolinger reduced the number of hours claimed by twenty percent so as not to charge these defendants with the time spent by plaintiff's attorneys in pursuing claims against defendant The Donna Karan Store Corporation d/b/a DKNY and defendant Donna Karan International, Inc., and made a downward adjustment in the rates requested to account for the sizes of the legal practices involved and the level of experience of counsel. Finally, Magistrate Judge Dolinger recommended an award of the costs of the action in the amount of $8,321.43, including principally the costs of various depositions, the expense of investigative services and fees for translation services. 29 U.S.C. § 216 (b); see McGinty v. New York, 251 F.3d 84, 100 (2d Cir. 2001).
No party has objected to the Report, their time to do so having expired on January 22, 2002. It appears from Court records that all copies of the Report mailed to these defendants were returned after failed attempts at delivery. It is further apparent from Court records that all attempts to convey copies of Court orders and documents by mail to these defendants have failed since December of 2000.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991)
Having reviewed the Report, I find no facial errors in it. Accordingly, Magistrate Judge Dolinger's Report and Recommendation is adopted without modification. Accordingly, it is hereby
ORDERED that judgment be entered for the plaintiff and against defendants Eastpoint International, Inc., Eastpoint Intl, Inc., Couture Enterprises, Ltd., Choe, Ltd., and C.S. Choe, jointly and severally, in the amount of $90,333.63.
IT IS FURTHER ORDERED that the Clerk of Court shall close the case.
SO ORDERED.