Opinion
19-CV-00569 (JGK) (KHP)
01-21-2022
ANTONIO IVAN CAMPOS MARIN, JOSE RIGOBERTO SARCENO GARCIA, and MARIA LUZMILA CHAFLA YAMBA, Plaintiffs, v. J&B 693 CORP. (D/B/A CASA AGAVE), LOS LIZARDOS, INC. (D/B/A CASA AGAVE), 9TH AVE LIME JUNGLE, INC. (D/B/A LIME JUNGLE EMPANADAS), BESIM KUKAJ, DIANA DE LOS ANGELES, FRANCISCO SORIANO, and MARIN BARROSO, Defendants.
REPORT AND RECOMMENDATION ON DAMAGES INQUEST
Katharine H. Parker, United States Magistrate Judge
TO: THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiffs are all former employees of Defendant's restaurants and assert 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 §§ 2 and 651. (“NYLL”), for violations of minimum wage and overtime laws, wage notice and statement violations, recovery of equipment costs, liquidated damages, and attorneys' fees and costs. After entry of default against the Defendants, the Honorable John G. Koeltl referred this action to me for a report and recommendation on damages. Defendants did not file an opposition to the Plaintiffs' 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 Plaintiffs be awarded damages as set forth in detail below.
FACTUAL BACKGROUND
Plaintiffs, Antonio Ivan Campos Marin (“Campos Marin”), Jose Rigoberto Sarceno Garcia (“Sarceno Garcia”), and Maria Luzmila Chalfa Yamba (“Chalfa Yamba”), are all former employees of Defendants J&B 693 Corp. (D/B/A/ Casa Agave), Los Lizardos, Inc. (D/B/A/ Casa Agave), 9th Ave Lime Jungle, Inc. (D/B/A/ Limon Jungle), BKUK 9 Corp (Lime Jungle Empanadas), and Besim Kukaj. Defendants owned, operated, or controlled two Mexican restaurants in New York City: “Casa Agave” under the name Limon Jungle; and “Lime Jungle Empanadas” during the relevant time periods. Plaintiffs were employed as delivery workers and cooks at these Mexican restaurants. However, Plaintiffs Campos and Sarceno were often required to perform non-tipped duties including preparing dressings, pack sauces, bring ice from other restaurants, go out and buy supplies, take out the garbage, sweep and mop and clean the refrigerator. (First Amended Complaint (“FAC”), ECF No. 38. ¶¶ 3, 5.) Additionally, all of the restaurants are owned and operated by Defendant Kukaj, who frequently transferred employees between locations, determined the wages and compensation of the employees at the restaurant, and controlled the hiring and firing of employees. (FAC ¶ 29.)
Each of the Plaintiffs submitted sworn declarations in connection with their motion for a default judgment and damages. (Campos Marin Decl. ECF No. 91-4; Sarceno Garcia Decl. ECF No. 91-5; Chalfa Yamba Decl. ECF No. 91-6.) Each Plaintiff provided their employment position and duration of employment with the Defendants. Id. Plaintiffs attested that they regularly worked in excess of forty hours per week and that the Defendants failed to pay them the proper amount of minimum or overtime wages. (FAC, ECF No. 38 ¶¶ 6-7, 14.) All Plaintiffs further allege that Defendants failed to provide them with a wage notice or wage statement during their time of employment. (Id. ¶¶ 7-10.) Consequently, Plaintiffs seek unpaid minimum wages, overtime wage damages, liquidated damages, statutory damages, attorneys' fees, and costs. The details of the work performed, and amounts claimed are discussed below.
PROCEDURAL HISTORY
Plaintiffs commenced this action on January 18, 2019. (ECF No. 1.) Plaintiffs served the Complaint on all Defendants by personal service on February 1, 2019 asserting the following causes of action: (1) violation of the minimum wage provisions of the FLSA; (2) violation of the overtime provisions of the FLSA; (3) violation of the New York minimum wage act; (4) violation of the overtime provisions of the New York State Labor Law; (5) violation of the spread of hours wage order of the New York Commissioner of Labor; and (6) a number of violations of the New York Labor Law including violation of notice and recordkeeping requirements, wage statement requirements, recovery of equipment costs, and timely payment provisions. (ECF Nos. 1, 15-19.) Defendants failed to appear or respond to Plaintiffs at any time during this case.
On June 28, 2019, the Clerk of the Court entered a certificate of default against each Defendant. (ECF Nos. 27-31.) On September 3, 2019, Plaintiffs filed a First Amended Complaint (“FAC”). (ECF No. 38.) Plaintiffs served the FAC on Defendants on December 16, 17 and 19 of 2019. (ECF Nos. 50-52, 54, 57.) On January 22, 2021, the Clerk of the Court entered a certificate of default against each Defendant. (ECF Nos. 78-80.) On March 30, 2021, Plaintiffs voluntarily dismissed, without prejudice, the claims brought against Defendants Martin Barroso, Francisco Soriano, and Diana de Los Angeles. (ECF Nos. 88, 94.) The remaining Defendants are J&B 693 Corp. (D/B/A/ Casa Agave), Los Lizardos, Inc. (D/B/A/ Casa Agave), 9th Ave Lime Jungle, Inc. (D/B/A/ Limon Jungle), BKUK 9 Corp (D/B/A Lime Jungle Empanadas), and Besim Kukaj. On April 2, 2021, Defendants were ordered to show cause by April 16, 2021 as to why a default judgment should not be entered against them, but they failed to appear. (ECF No. 95.) On December 22, 2021, the Honorable John G. Koeltl entered a default judgment against Defendants and referred the matter to the undersigned for an inquest on damages. (ECF No. 104.) The following recommendations are based on the facts asserted in the FAC, as well as evidence presented in Plaintiffs' declarations and moving papers. (ECF Nos. 90-91.)
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 (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 (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 non-defaulting party would suffer as a result of the denial of the motion for default judgment. Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment).
Here, Plaintiffs have 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. 74-76, 92.) 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) (court reasoned 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). And, 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). Below I first address the Defendants' liability with respect to the FLSA and NYLL based on the allegations in the pleadings and Plaintiffs' declarations. Then I address damages.
II. Liability
a. 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 the health, efficiency and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739, 101 S.Ct 1437, 67 L.Ed.2d 641 (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, 726 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. Id. 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 USC § 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 an additional equal amount as liquidated damages. 29 USC § 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. Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 556 (2d Cir. 2012). 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); Chun Jie Yin, 2008 WL 906736, at *6; Jowers v. DME Interactive Holdings, Inc., No. 00 Civ. 4753, 2006 WL 1408671, at *9 (S.D.N.Y. May 22, 2006).
New York's minimum wage was at almost all relevant times higher than the federal minimum wage. See 29 U.S.C. §§206(a)(1), 207(a)(1), Art. 19 NYLL Sec. 652. Hospitality Industry Minimum Wage Order, 13A N.Y. Prac, Employment Law in New York § 7:89 (2d ed.); see also Dept. of Lab. New York City Minimum Wage rates at https://dol.ny.gov/minimum-wage-0 (last visited Nov. 2, 2021). Only from March 1, 2012, until December 30, 2013 was the federal minimum wage ($7.25) higher than the New York State minimum wage ($7.15). See Id. Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
The federal minimum wage during Plaintiffs' employment was $7.25. 29 U.S.C. § 206(a)(1). The federal overtime rate is 1.5 x the employee's regular hourly rate. 29 U.S.C. § 207(a)(1). In New York City, the minimum wage for employees in restaurants with less than 11 employees (Plaintiff did not allege that Defendants employed more than 11 individuals) was $7.15 an hour until December 30, 2013; $8 per hour in 2014; $8.75 per hour from December 31, 2014 through December 30, 2015; $9.00 per hour from December 31, 2015 to December 30, 2016; $10.50 per hour from December 31, 2016 to December 30, 2017; $12.00 per hour from December 31, 2017 through the end of Plaintiffs employment. Art. 19 NYLL Sec. 652. The New York State overtime rate also is 1.5 times the regular rate. Hospitality Industry Wage Order 146-1.4.
Here, Plaintiffs all attested that Defendants were their employer and that they were employed by Defendants. (Decls. ECF Nos. 91-4, -91-5, 91-6 ¶¶ 3-5.) They assert that Defendants hired them, supervised and controlled their work schedules, and determined the rate and method of compensation in exchange for their work. Id; Rahman v. Red Chili Indian Café, Inc., 17-cv-5156, 2021 WL 2003111 (S.D.N.Y. May 19, 2021) (in default judgment context, finding allegations in complaint that restaurant and its owner had the power to hire and fire employees and set wages was sufficient to establish that both the entity and its owners were employers under the FLSA); see also 29 U.S.C. § 203(d, e); NY LL 190(2, 3); 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). Thus, Plaintiffs have met the requirement of demonstrating that Defendants were employers and that they were employees.
Moreover, Plaintiff has alleged that Defendant restaurants are an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA, and that the restaurants' annual gross revenue was in excess of $500,000 as required by 29 U.S.C. § 203(s)(1)(A)(i)-(ii). (See FAC ¶¶ 42, 43.) This is sufficient to demonstrate that the Defendants were engaged in commerce. Rahman, 2021 WL 2003111 (S.D.N.Y. May 19, 2021); Pelgrift, 2017 WL 4712482, at *7 (finding a complaint merely restating the statutory definition sufficient given reasonable inferences); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 33 (S.D.N.Y. 2015) (same).
For example, Plaintiffs allege that they regularly handled goods in interstate commerce produced outside of the State of New York on a daily basis. (FAC ¶¶ 42, 43.)
The FLSA exempts certain employees from minimum wage and overtime wage protections; however, general laborers carrying out work such as delivery, cooking, dishwashing and food preparation generally are not exempt. See, e.g., Solis v. SCA Rest. Corp., 938 F.Supp.2d 380, 398 (E.D.N.Y. 2013) (finding that chef was not exempt from overtime eligibility); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 32-33 (E.D.N.Y. 2015) (Plaintiffs' respective jobs as kitchen helper/food preparer, and cook all constitute non-exempt employment under the FLSA.); Genxiang Zhang v. Hiro Sushi at Ollie's Inc., 2019 WL 699179, at *11 (S.D.N.Y. Feb. 5, 2019) (delivery workers are not exempt employees). Given the presumption that an employee is entitled to overtime and Defendants' failure to appear and meet their burden that Plaintiffs fall under a specific exemption, Plaintiffs have satisfied their entitlement to unpaid wages, including overtime, under the FLSA.
Because the analysis under New York law is the same, Plaintiffs also have satisfied their burden in demonstrating Defendants' exposure to liability under the New York Labor law. Debejian v. Atl. Testing Labs., Ltd., 64 F.Supp.2d 85, 87, n. 1 (N.D.N.Y. 1999) (finding New York Labor Law provisions “substantially similar to the federal scheme” such that its analysis of federal law would apply equally to claims brought under the FLSA and New York law).
Importantly, claims brought under the FLSA and the NYLL are subject to different statutes of limitations. Under the FLSA, claims are subject to a two-year statute of limitations if the violation is not willful and a three-year statute of limitations if the violation is willful. See Pineda v. Masonry Const. Inc., 831 F.Supp.2d 666, 674 (S.D.N.Y. 2011) (citing 29 U.S.C. § 255(a)). When defendants are in default, the court may accept the plaintiff's allegation that the defendants' violation was willful, such that a three-year statute of limitations would apply in this case. See Angamarca v. Pita Grill 7 Inc., No. 11-cv-7777 (JGK) (JLC), 2012 WL 3578781, at *4 (S.D.N.Y. Aug. 2, 2012) (accepting plaintiff's allegation of defendants willful violation where defendants defaulted). 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)). In this case, the state statute of limitations is the relevant one, as Plaintiffs were employed more than three years. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
Here, Plaintiffs correctly applied the relevant statute of limitations period because the case was filed on January 18, 2019, and Plaintiffs calculation of damages begins six years from that date to encompass each Plaintiff's start dates of employment (i.e. For example, Sarceno Garcia damages calculations begin January 18, 2013, Ivan Campos begins March 1, 2013, and Maria Chalfa damages begin December 1, 2013). See Pineda, 831 F.Supp.2d at 674 (citing NYLL § 663(1), (3)).
I turn next to Plaintiffs' allegations regarding their hours worked and pay to assess whether they have demonstrated that they are entitled to unpaid minimum wage and/or overtime under federal and/or state law. Plaintiffs each provided a declaration detailing their hours worked, days in the restaurant(s) and work schedules. (Decls. ECF No. 91-4, 91-5, 91-6.) Plaintiffs allege that Defendants regularly required Plaintiffs to work in excess of forty hours per week, failed to pay them overtime or minimum wage, and failed to provide any wage statement or notice of accounting for actual hours worked. (Id.)
b. Plaintiffs Employment with Defendants:
i. Jose Rigoberto Sarceno Garcia:
Plaintiff Sarceno Garcia was employed from approximately August 2012 until November 2018. (Sarceno Garcia Decl., ECF No. 91-5, ¶ 7.) From approximately January 18, 2013 until December 2015, Plaintiff Sarceno Garcia worked from approximately 5:00 p.m. until 11:00 p.m., four days a week, from approximately 5:00 p.m. until 12:00 a.m. one day a week, and approximately 11:00 a.m. until 10:00 p.m. one day a week (typically, 42 hours per week). (Id. ¶ 11.) From approximately January 2016 until October 2017, Plaintiff Sarceno Garcia worked from approximately 5:00 p.m. until 12:00 a.m., two days a week and from approximately 5:00 p.m. until 11:00 p.m., three days a week (typically 32 hours per week). (Id. ¶ 12.) From approximately November 2017 until November 2018, Plaintiff Sarceno Garcia worked from approximately 5:00 p.m. until 12:00 a.m., one day a week, from approximately 11:00 a.m. until 10:00 p.m., one day a week, and from approximately 5:00 p.m. until 11:00 a.m., three days a week (typically 48 hours per week). (Id. ¶ 13.) Defendants paid Plaintiff Sarceno Garcia $5.60 per hour from January 2013 to June 2016; $200 per week from June 2016 until November 2018. (Id. ¶¶ 14, 15.) Plaintiff attests that he never received overtime pay for hours worked in excess of forty hours per week. (Id. ¶ 16.)
ii. Plaintiff Antonio Ivan Campos Marin:
Plaintiff Antonio Ivan Campos Marin was employed by the Defendants from approximately March 1, 2013 until December 15, 2018. (Campos Marin Decl., ECF No. 91-4, ¶ 7.) From approximately March 2013 until December 2013, Plaintiff Campos Marin worked from approximately 11:00 a.m. until 4:00 p.m., three days a week, on Tuesdays, Thursdays, and Fridays (typically 15 hours per week). (Id. ¶ 11.) From approximately March 2013 until December 2016, Plaintiff Campos Marin worked from approximately 5:00 p.m. until 11:00 p.m., two days a week (Mondays and Tuesdays), from approximately 5:00 p.m. until 12:00 a.m., two days a week (Thursdays and Fridays), from approximately 11:00 a.m. until 12:00 a.m. one day a week (Saturdays), and from approximately 10:00 a.m. until on or about 11:00 a.m. on Sundays. (typically 52 hours per week). (Id. ¶ 12.) From approximately January 2017 until December 2018, Plaintiff worked from approximately 5:00 p.m. until 11:00 p.m., two days a week (Tuesdays and Wednesdays) and from approximately 5:00 p.m. until 12:00 a.m. three days a week (Thursdays, Fridays, and Saturdays), and from 10:00 a.m. until 11:00 p.m. on Sundays (typically 46 hours per week). (Id. ¶ 13.) From approximately March 2013 until December 2013, Defendants paid Plaintiff a fixed salary of $650 per week in cash. (Id. ¶¶ 14, 16.) From approximately January 2014 through December 2014, Defendants paid Plaintiff a fixed salary of $700 per week by personal check. (Id. ¶¶ 15, 17.) From approximately January 2015 through December 2015, Defendants paid Plaintiff a fixed salary of $650 per week by personal check. (Id. ¶¶ 15, 16.) From approximately January 2016 through December 2018, Defendants paid Plaintiff a fixed salary of $700 per week by personal check. (Id. ¶¶ 15, 17.)
iii. Plaintiff Maria Luzmila Chalfa Yamba:
Plaintiff Maria Luzmila Chalfa Yamba was employed by the Defendants from approximately December 2013 until November 2018. (Chalfa Yamba Decl., ECF No. 91-6, ¶ 7.) From approximately December 2013 until December 2015, Plaintiff Maria Yamba worked from approximately 10:00 a.m. until 6:00 p.m., one day a week, and from approximately 10:00 a.m. until about 9:00 p.m. four days a week (typically 52 hours per week). (Id. ¶ 11.) From approximately January 2016 until April 2018, Plaintiff Maria Yamba worked from approximately 10:00 a.m. until 6:00 p.m., one day a week and from approximately 10:00 a.m. until 9:00 p.m., five days a week (typically 63 hours per week). (Id. ¶ 12.) From approximately May 2018 until November 25, 2018, Plaintiff worked from approximately 9:00 a.m. until 8:00 p.m., two days a week and from approximately 10:00 a.m. until 7:00 p.m. or 8:00 pm, four days per week (typically 58 hours to 62 hours per week). (Id. ¶ 13.) From approximately December 2013 until December 2014, Defendants paid Plaintiff a fixed salary of $575 per week in cash. (Id. ¶¶ 14, 16.) From approximately January 2015 through December 2015, Defendants paid Plaintiff a fixed salary of $450 per week by personal check. (Id. ¶¶ 15, 17.) From approximately January 2016 through December 2016, Defendants paid Plaintiff a fixed salary of $500 per week by personal check. (Id. ¶¶ 15, 18.) From approximately January 2017 through December 2017, Defendants paid Plaintiff a fixed salary of $550 per week by personal check. (Id. ¶¶ 15, 19.) From approximately January 2018 through November 25, 2018, Defendants paid Plaintiff a fixed salary of $600 per week by personal check. (Id. ¶¶ 15, 20.)
As a preliminary manner, the Court finds one overarching assumption made by Plaintiffs that underlies all of the calculations in their damages chart that was provided. Specifically, Plaintiffs have implicitly assumed that the minimum-wage rates for “large employers” applies to Defendants, even though neither the Complaint(s), nor the Declarations filed in this case, allege that Defendants employed 11 or more people at any of their respective restaurants, such that the establishment would qualify as a “large employer.” N.Y. Lab. Law § 652(1)(a)(i). Given the lack of any support for Plaintiff's assumption, this Court will, where applicable, apply the minimum-wage rates for “small employers, ” as defined by N.Y. Lab. Law § 652(1)(a)(ii). See Reyes v. Lincoln Deli Grocery Corp., No. 17cv2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018) (applying lower, small-employer rate where “the Complaint [was] completely silent as to how many people [the defendant] employ[ed] [and] therefore there [was] no evidentiary basis for the Court to calculate damages based on the higher rate.) This use of the lower minimum-wage rate will modestly affect Plaintiff's proffered calculations for overtime and minimum wage payments due.
c. Unpaid Minimum Wages
Although Plaintiffs inquest submissions broadly allege that Defendants failed to pay them at the applicable hourly minimum rate, Plaintiffs do not explicitly articulate any period of underpayment in the complaints or in the inquest documents. The Court can only determine that there was an underpayment by confirming the calculations provided in the damage calculation chart. Therefore, the Court has been forced to scrutinize Plaintiffs damages chart to discern the period(s) and the Plaintiffs who have an unpaid minimum wage claim. Based on the calculations provided it appears that the only Plaintiff who has a minimum wage claim is Jose Rigoberto Sarceno Garcia. At all other times during their employments, Antonio Ivan Campos and Maria Luzmila Chalfla Yamba received a higher hourly wage rate than the minimum wage.
With regards to Jose Rigoberto Sarceno Garcia, Plaintiff was employed with Defendants from January 18, 2013 through November 15, 2018. Based on the information attested to in the declaration, the Defendants violated the minimum wage provisions of the NYLL during the entire time of his employment. From January 18, 2013 through June 15, 2016, Plaintiff Sarceno was paid an hourly rate of $5.60 per hour. (Sarceno Garcia Decl. at ECF No. 91-5, ¶ 14.) From approximately June 16, 2016 through November 15, 2018, Plaintiff was paid a fixed salary of $200 per week which resulted in an hourly rate of $5.00. (Id. ¶ 15.) Where, as here, an employer fails to pay an employee an hourly rate of pay, the employee's regular hourly rate of pay shall be “calculated by dividing the employee's total weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that employee during the work week." Shanfa Li v. Chinatown Take-Out Inc., 812 Fed.Appx. 49, 52 (2d Cir. 2020) (citing 12 N.Y.C.R.R. § 146-3.5(b)). If the employee's regular hourly rate falls below the minimum wage, he is entitled to recover in backpay the difference between what he actually was paid and what he should have been paid for his first forty hours of work each week under the prevailing minimum wage. Id. The following chart reflects the underpayment for this Plaintiff.
Pay Period (number of weeks)
Regular Hours Worked per Week
Applicable Minimum Wage
Weekly Salary
Regular Rate
Legal Weekly Salary (Minimum Wage x40 Hours)
Weekly Underpay (Legal Weekly Salary minus Weekly Salary)
Total Underpay (weekly underpay multiplied by the number of weeks)
1/18/2013-12/31/2013 (50 weeks)
40
$5.60/hr ($224.00/ wk)
n/a
$290.00
$66.00
1/1/2014-12/31/2014 (52 weeks)
40
$8.00
$5.60/hr ($224.00/ wk)
n/a
$320.00
$96.00
$4,992.00
1/1/2015 -12/31/2015 (52 weeks) (see below for continuation)
40
$8.75
$5.60/hr ($224.00/ wk)
n/a
$350.00
$126.00
$6,552.00
1/1/2016-6/15/2016 (24 weeks)
32
$9.00
$5.60 /hr ($179.20/wk
n/a
$108.80
$2,611.20
6/16/2016-12/31/2016 (28 weeks)
32
$9.00
$200/wk
$6.25
$288.00
$88.00
$2,464.00
1/1/2017-10/31/2017 (43 weeks)
32
$200/wk
$5.00
$336.00
$136.00
$5,848.00
11/1/2017- 12/31/2017 (9 weeks)
40
$10.50
$200/wk
$5.00
$420.00
$220.00
$1,980.00
1/1/2018 -11/15/2018 (45 weeks)
$12.00
$200/wk
$480.00
$280.00
$12,600.00
TOTAL: $40,347.20
Plaintiff is entitled to the more generous federal minimum wage rate here ($7.25.) versus the New York City minimum wage rate ($7.15). Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods and here, this is the only period where the federal minimum wage rate was higher than the New York City wage rate. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
The Court arrived at this number by multiplying the amount that Plaintiff was underpaid weekly by the number of weeks in the relevant period. To calculate the amount Plaintiff was underpaid weekly, the Court determined the regular rate by dividing Plaintiff's weekly salary by 40 hours (as required by the NYLL and the FLSA when the employer does not provide a regular hourly rate). The Court then multiplied the correct minimum wage value by 40 hours (as required by the NYLL and FLSA) to get the amount that Plaintiff should have received per week during the relevant period.
Plaintiff attests that he only worked 32 hours during this period.
As referenced supra, because Plaintiff has not provided any information regarding the size of his employer(s), the Court will apply the “small employer” minimum wage rate articulated in N.Y. Lab. Law § 652(1)(a)(ii). See Reyes v. Lincoln Deli Grocery Corp., No. 17cv2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018).
Accordingly, I recommend awarding Plaintiff Sarceno Garcia $40,347.20 in unpaid minimum wages.
a. Unpaid Overtime Wages
Plaintiffs attested that they worked over 40 hours a week during their employment with Defendants, but they never received overtime wages. (Campos Marin Decl. at 91-4, ¶ 25; Chalfa Yamba Decl. ECF No. 91-6 at ¶ 25, and Sarceno Garcia Decl. ECF No. 91-5, at ¶ 25) The NYLL requires employers to compensate their employees at one and one-half times their regular hourly rate for every hour worked over forty hours per week. See 29 U.S.C. § 207(a)(1); 12 N.Y. Comp. Codes R. & Regs. § 142-2.2; Shan/a Liv. Chinatown Take-Out Inc., 812 Fed.Appx. 49, 52 (2d Cir. 2020) (overtime calculation under the FLSA and NYLL). As discussed above, when an employer has defaulted and offers no rebuttal, the Court calculates the employee's regular hourly rate by dividing his weekly salary by forty hours. Rosendo v. Everbrighten Inc., 2015 WL 1600057 *3 (S.D.N.Y. 2015). However, if a Plaintiff's regular hourly rate fell below the minimum wage, that Plaintiff is entitled to overtime damages equal to one and one-half times the minimum wage rate. Id. at 4.
On the assumption that an employee's weekly salary is intended to cover only forty hours per week, any time worked in excess of forty hours represents uncompensated overtime for which the employee is owed backpay. Id. The below charts, based on this Court's careful review of the Plaintiffs' declarations and accompanying calculations, compute the amount of overtime wages due to Plaintiffs. Discrepancies between the Court's computations and Plaintiffs' calculations are noted.
i. Antonio Ivan Campos:
Pay Period (number of weeks)
Overtime Hours Worked Per Week
Minimum Wage Rate
Regular Rate
Overtime Rate (Regular Rate x 1.5)
Weekly Underpay
3/1/2013-12/31/2013 (44 weeks)
27
$16.25
$24.38
$658.12
$28,957.50
1/1/2014-12/31/2014 (52 weeks)
$8.00
$17.50
$26.25
$315.00
$16,380.00
1/1/2015-12/31/2015 (52 weeks)
12
$8.75
$16.25
$24.38
$292.50
$15,210.00
1/1/2016-12/31/2016 (52 weeks)
12
$9.00
$17.50
$26.25
$315.00
$16,360.00
1/1/2017-12/31/2017 (52 weeks)
6
$17.50
$26.25
$157.50
$8,190.00
1/1/2018-12/15/2018 (50 weeks)
6
12.00
$17.50
$26.25
$157.50
$7,875.00
Total Owed for Unpaid Overtime Wages
$ 92, 972.50
The Court arrived at this number by multiplying the regular rate (calculated by dividing the weekly salary by 40 hours, as required under the NYLL and FLSA) by 1.5 to get the overtime rate, then multiplying the overtime rate by the number of overtime hours worked per week to get the weekly underpay. Then, the Court multiplied the weekly underpay by the number of weeks in the period to arrive at the total underpay. In the period(s) in which the minimum wage rate was higher than the regular rate, the Court used the minimum wage rate as the “regular rate” for purposes of the overtime rate calculation.
Plaintiff is entitled to the more generous federal minimum wage rate here ($7.25.) versus the New York City minimum wage rate ($7.15). Under applicable law, Plaintiff is entitled to the more generous minimum wage and overtime rates during all relevant periods and here, this is the only period where the federal minimum wage rate was higher than the New York City wage rate. See, e.g., Elisama v. Ghzali Gourmet Deli Inc., No. 14-cv-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
Plaintiff's chart of damages provides a breakdown of each Plaintiff's computations. With regards to Antonio Ivan Campos, the Court finds that the chart submitted by Plaintiffs errs in calculating his hours worked from January 1, 2014 through December 15, 2018. Mr. Ivan Campos Declaration asserts that from March 2013 through December 2016, he worked 52 hours per week. The chart denotes that he worked 54 hours of overtime. Additionally, Mr. Ivan Campos Declaration asserts that from January 2017 through December 2018, he worked 46 hours. The chart denotes that he worked 48 hours of overtime. Accordingly, the undersigned used Plaintiff's Declaration to determine the right number of hours for purposes of this calculation, which results in the following amounts of overtime: 12 hours from January 1, 2014 through December 31, 2016, and 6 hours of overtime for January 2017 through December 15, 2018. (Ivan Campos Decl. at ECF No. 91-4, ¶¶12, 13.).
Plaintiffs have not provided any information regarding the size of his employer(s), therefore the Court will apply the “small employer” minimum wage rate articulated in N.Y. Lab. Law § 652(1)(a)(ii). See Reyes v. Lincoln Deli Grocery Corp., No. 17cv2732 (KBF), 2018 WL 2722455, at *7 (S.D.N.Y. June 5, 2018).
ii. Jose Rigoberto Sarceno Garcia [ ]:
From January 2016 through October 2017, Plaintiff did not have an overtime claim because he worked fewer than 40 hours per week. (Sarceno Garcia Decl. at ECF No. 91-5 at ¶ 12.)
Pay Period (number of weeks)
Overtime Hours Worked Per Week
Minimum Wage Rate
Regular Rate
Overtime Rate (Regular Rate x 1.5)
Weekly Underpay
Total Underpay
1/18/2013 -12/31/2013 (50 weeks)
2
$7.25
$5.60
$10.90
$21.75
$1,087.50
1/1/2014-12/31/2014 (52 weeks)
2
$8.00
$5.60
$12.00
$24.00
$1,248.00
1/1/2015-12/31/2015 (52 weeks)
2
$8.75
$5.60
$13.13
$26.25
$1,365.00
11/1/2017- 12/31/2017 (9 weeks)
8
$10.50
$5.00
$15.75
$126.00
$1,134.00
1/1/2018 -11/15/2018 (45 weeks)
8
$12.00
$5.00
$18.00
$144.00
$6,480.00
Total Owed for Unpaid Overtime Wages
$
Ll.314.50
iii. Maria Luzmila Chalfa Yamba:
Pay Period (number of weeks)
Overtime Hours Worked Per Week
Minimum Wage Rate
Regular Rate
Overtime Rate (Regular Rate x1.5)
Weekly Underpay
Total Underpay
12/1/2013- 12/31/2013 (4 weeks)
12
$7.25
$14.38
$21.57
$258.84
$1,035.36
1/1/2014-12/31/2014 (52 weeks)
12
$8.00
$14.38
$21.57
$258.84
$13,459.68
1/1/2015-12/31/2015 (52 weeks)
12
$8.75
$11.25
$16.88
$202.50
$10,530.00
1/1/2016-12/31/2016 (52 weeks)
23
$9.00
$12.50
$18.75
$431.25
$22,425.00
1/1/2017-12/31/2017 (52 weeks)
23
$10.50
$13.75
$20.63
$474.40
$24,667.50
1/1/2018-4/31/2018 (17 weeks)
23
$12.00
$15.00
$22.50
$517.50
$8,797.50
5/1/2018 -11/25/2018 (30 weeks)
2012
$12.00
$15.00
$22.50
$450.00
$13,500.00
Total Owed
for Unpaid Overtime Wages $ 94, 415.04
Accordingly, I recommend that Plaintiff Maria Luzmila Chalfa Yamba receive $94,415.04; Antonio Ivan Campos receive $92,972.50; and Jose Rigoberto Sarceno Garcia receive $11,314.50, in unpaid overtime wages.
d. Liquidated Damages
Plaintiffs seek liquidated damages under the New York Labor Law. Under the NYLL, “liquidated damages are presumed unless defendants can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012); see N.Y. Lab. Law § 663(1). As Defendants have defaulted, they have not established the good faith necessary to rebut the liquidated damages presumption. For similar reasons, Plaintiffs are entitled to liquidated damages under federal law. By virtue of Defendants' default, their failure to pay appropriate wages can be deemed willful, entitling them to liquidated damages. Id.
Plaintiff attests that she typically worked 58 hours to 62 hours per week. Given that Defendants have defaulted, the Court will award Plaintiff the median number of the two - 60 - for purposes of calculating her overtime claim.
Based on the total amounts due to Plaintiffs based on the above charts, the chart below calculates the total unpaid wages (comprising of unpaid minimum wages and overtime). Accordingly, I recommend awarding liquidated damages in the recommended amounts for each Plaintiff in the chart below:
Plaintiff
Amount of Compensatory Damages Claimed
Liquidated Damages Award Recommended
Maria Luzmila Chalfa
$94,415.04
$94,415.04
Jose Rigoberto Sarceno Garcia
$11,314.50+ $40,347.20
$51,661.70
Antonio Ivan Campos
$92,972.50
$92,972.50
III. 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.
Regarding wage notices, in 2011, the WTPA required employers to provide written wage notices “at the time of hiring, and on or before February first of each subsequent year of the employee's employment with the employer.” N.Y. Lab. Law § 195(1-a) (eff. Apr. 9, 2011 to Feb. 27, 2015). Failure of the employer to follow this resulted in a $50 per week payment to the employee with a maximum recovery of $2,500 per employee. Subsequently, the WTPA was amended, effective February 27, 2015, to provide that employers were only required 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).
All Plaintiffs attest that they never received a written wage notice at the time of hiring or anytime thereafter. (Chalfa Yamba, Campos Marin and Sarceno Garcia Decls. ECF Nos. 91-4, 91-5, 91-6, ¶¶ 22, 23.) Because Defendants are in default, this Court accepts Plaintiffs' allegations that Defendants failed to provide them with the required notices. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-cv-10234 (JGK) (JLC), 2016 WL 4704917, at *14 (S.D.N.Y. Sept. 8, 2016) (awarding plaintiff statutory damages under NYLL § 195(1) and (3) where defendants defaulted), adopted sub nom. by Xochimitl v. Pita Grill of Hell's Kitchen, Inc, No. 14-cv-10234 (JGK), 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016). Each Plaintiff began their employment prior to the 2015 amendment, which required employers to provide wage notices at the time of hiring and on or before February of each subsequent year of employment. According to the 2011 WTPA, this would entitle them to the maximum recovery of $2,500 per employee. N.Y. Lab. Law § 195(1-a) (eff. Apr. 9, 2011 to Feb. 27, 2015). However, at least one court in the District has permitted a plaintiff to recover the cap established by the 2015 amendment when the plaintiff's wage rate changed after the amendment. Cuzco v. F & J Steaks 37th Street LLC, No. 13-CV-1859, 2014 WL 2210615, at *4 (S.D.N.Y. May 28, 2014). Because each Plaintiff had a wage increase that changed after the February 27, 2015 amendment, for which they should have received notice, Plaintiffs are entitled to the recovery under the 2015 Amendment, which would entitle them to the maximum rate of $5,000.00.
Regarding wage statements, the WTPA formerly entitled employees to recover statutory damages for violations of the wage statement requirement of $100 per work week, not to exceed $2,500.” Baltierra v. Advantage Pest Control Co., No. 14 CV 5917, 2015 WL 5474093, at *10 (S.D.N.Y. Sept. 18, 2015) (citation omitted); accord Inclan, 95 F.Supp.3d at 501; see also 2010 N.Y. Laws ch. 564 § 7, amending N.Y. Lab. Law § 198(1-d). By amendment, effective February 27, 2015, the law changed to allow employees to recover statutory damages of $250 dollars “for each work day that the violations occurred or continue to occur, ” not to exceed $5,000. 2014 N.Y. Laws ch. 537 § 2, amending N.Y. Lab. Law § 198(1-d); see also Zhang v. Red Mtn. Noodle House Inc., No. 15 CV 628, 2016 WL 4124304, at *6 (E.D.N.Y. July 5, 2016), report and recommendation adopted, 2016 WL 4099090 (E.D.N.Y. Aug. 2, 2016).
Plaintiffs also asserted that they never received wage statements with their pay. (Chalfa Yamba, Campos Marin and Sarceno Garcia Decls. ECF Nos. 91-4, 91-5, 91-6, ¶¶ 22, 23.) The applicable law provides for $250 dollars in damages for each work day, totaling no more than $5,000. See N.Y. Lab. Law § 198(1-d). Defendants failed to comply with § 195(3) throughout the period of Plaintiffs' employment and for days beyond when the statutory cap was reached. Thus, all Plaintiffs are entitled to the $5,000 statutory maximum in damages.
Accordingly, I respectfully recommend that each Plaintiff be awarded statutory damages in the following amounts.
Plaintiff
Wage Notice
Wage Statement
Total
Maria Luzmila Chalfa
$5,000
$5,000
$10,000
Jose Rigoberto Sarceno Garcia
$5,000
$5,000
$10,000
Antonio Ivan Campos
$5,000
$5,000
$10,000
IV. Compensation for Purchasing Tools of the Trade
An employer violates both the FLSA and NYLL if it requires its employees to purchase "tools of the trade" that are used or required to perform the employer's work and the cost of such tools reduces the minimum or overtime wages owed to the employee. See Feng Chen v. Patel, 2019 WL 2763836 (S.D.N.Y. July 2, 2019) (quoting NYCRR § 146-2.7(c)); Salinas v. Starjem Rest. Corp., 123 F.Supp.3d 442, 476 (S.D.N.Y. 2015) (quoting 29 C.F.R. § 531.35).
Plaintiff Jose Rigoberto Sarceno Garcia alleges that Defendants required him to purchase "tools of the trade," notably referencing a bike, and approximates that he spent $544.38. (Sarceno Garcia Decl. at ECF No. 91-5, H 20.) This Court accept's Plaintiff's factual allegations as true, considering he was employed as a delivery worker and a bike was necessary for him to perform his job. Salinas, 123 F.Supp.3d at 476 (awarding damages for tools of the trade where bussers and runners working at defendant restaurant were required to purchase crumbers). Accordingly, I recommend that the Plaintiff Sarceno Garcia be awarded $544.38 for purchasing tools of the trade.
V. Attorneys' Fees
The FLSA and NYLL both provide for an award of reasonable attorneys' fees to successful plaintiffs. See 29 U.S.C. § 216(b); NYLL §§ 198(1-a), 663(1). Plaintiffs are represented by Michael Faillace & Associates, now called CSM Legal P.C., and the work was performed by attorneys Michael Faillace and Clifford Tucker. (ECF No. 91.) Plaintiffs seek an attorneys' fee award of $14,420.00 for 54.10 hours of work. (Id.)
Pursuant to a motion to withdraw by managing partner, Michael Faillace, the firm is under new ownership and has been renamed CSM Legal P.C. (ECF Nos. 101, 102.)
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-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County 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)). “Courts in this District have determined in recent cases that a fee in the range of $250 to $450 is appropriate for experienced litigators in wage-and-hour cases.” Xochimitl, 2016 WL 4704917, at *20 (finding a range of $250 to $450 per hour reasonable; collecting cases); see also Lopez v. Emerald Staffing, Inc., No. 18 CIV. 2788 (SLC), 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”).
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); see 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., 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (internal quotation marks and citation omitted), adopted by 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, No. 14-CV-2074 (JPO), 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).
a. Reasonable Hourly Rate
Courts in this district have determined that a fee 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., No. 18 CIV. 2788 (SLC), 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., No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for partners in FLSA cases).
Michael Faillace is the founder of Michael Faillace & Associates and has been practicing employment law since 1983. (ECF No. 91.) He seeks a rate of $450 per hour. (Id.) This rate is at the upper limit of what courts in this District have deemed reasonable for experienced litigators in wage-and-hour cases. See, e.g., Lopez, 2020 WL 915821, at *13; Xochimitl, 2016 WL 4704917, at *20. Additionally, in recent cases in which courts have been asked to determine a reasonable hourly rate for attorney Michael Faillace, the rates awarded have been below his requested “regular” hourly rate. See Marquez v. Erenler, Inc., No. 12-cv- 8580-GHW, 2014 WL 5847441, at *2-3 (S.D.N.Y. Nov. 10, 2014) (awarding Mr. Faillace $400 per hour); Cisneros v. Schnipper Rest., LLC, No. 13 Civ. 6266(JMF), 2014 WL 67235, at *2 (S.D.N.Y. Jan. 8, 2014) (reducing rates for Mr. Faillace by imposing a twenty-five percent across-the-board reduction); Rosendo v. Everbrighten Inc., No. 13CV7256-JGK-FM, 2015 WL 1600057, at *8 (S.D.N.Y. Apr. 7, 2015), report and recommendation adopted, No. 13 CV. 7256 JGK, 2015 WL 4557147 (S.D.N.Y. July 28, 2015) (awarding Mr. Faillace $400 per hour.) In light of his fee reductions in other cases, the Court recommends that Mr. Faillace fee should be reduced to $400 per hour.
Pursuant to a motion to withdraw as attorney filed on November 5, 2021, Mr. Faillace has been suspended from practice by the Southern District of New York. (ECF No. 175.) On January 7, 2022, Mr. Faillace received a two-year suspension for misconduct in connection with cases arising under the federal Fair Labor Standards Act. See “NYC Atty Suspended 2 Years For Stiffing Restaurant Workers” at https://www.law360.com/articles/1453610/nyc-attysuspended-2-years-for-stiffing-restaurant-workers (last viewed Jan. 10, 2022).
Additionally, Clifford Tucker, as associate at the firm who has been practicing law since 2013, spent significant time on this case and seeks a rate of $300 per hour. (ECF No. 91.) Mr. Tucker's rates are in the range awarded to similarly experienced employment law attorneys in this district. Accordingly, I recommend that his rate should be awarded. Lopez v. Emerald Staffing, Inc., No. 18 CIV. 2788 (SLC), 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., No. 12 Civ. 6094 (PAE), 2014 WL 4670870, at *9 (S.D.N.Y. Sept. 19, 2014) (approving hourly rates for $300-$400 for experienced attorneys in FLSA cases).
Additionally, one paralegal, although not identified by name, assisted with this case and bills at a rate of $100 per hour. (ECF No. 91.) The Court finds that this hourly rate is reasonable and in line with the prevailing rate for paralegals in this district. See Perez Garcia, 2020 WL 1130765, at *12 (finding hourly rate of $100 for paralegal reasonable in a labor and employment case); Williams v. Metro-N. R.R. Co., No. 1:17-CV-03847 (JGK), 2018 WL 3370678, at *8 (S.D.N.Y. June 28, 2018) (finding hourly rate of $100 reasonable), adopted by 2018 WL 3368713 (S.D.N.Y. July 10, 2018). Accordingly, I recommend awarding the paralegal the requested hourly rate.
b. Reasonable Hours Expended
When assessing whether the hours worked were reasonable, courts consider whether “‘at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Williams, 2018 WL 3370678, at *2 (quoting Samms v. Abrams, 198 F.Supp.3d 311, 322 (S.D.N.Y. 2016)); see also Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). “Hours 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, 2018 WL 3370678, at *2. 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 experience [, 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).
The timesheets submitted to the Court indicate that a total amount of 54.10 hours was expended working on the case. (ECF No. 91.) The billing records provide that Clifford Tucker spent the largest amount of time on the case - 39.9 hours. (Id.) Additionally, the paralegals spent 11.3 hours and Michael Faillace spent 2.9 hours. (Id.) Plaintiffs detailed the hours expended and dates and descriptions of the tasks performed, which comprised of time preparing and drafting declarations, reviewing facts for the complaint, preparing paperwork for default judgment motion, and preparing certificates of default. (Id.) The Court finds that these fees are reasonable.
Therefore, with the reduction of Mr. Faillace's rate suggested above, I recommend awarding attorney's fees in the amount of $13,360.00.
VI. Costs
Both the FLSA and NYLL entitle 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-of-pocket 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 Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)); see also Perez Garcia, 2020 WL 1130765 at *13.
Here, Plaintiffs seek to recover $1,501.40 in costs, which include filing fees, process server fees and fees for service, and the cost of mailing items for this case. These expenses are typically reimbursed under the FLSA's and NYLL's costs provisions. See Xochimitl, 2016 WL 4704917 at *22 (awarding costs for filing and process server costs). Plaintiffs provided an accounting of disbursements associated with these costs, including the dates service was attempted on the Defendants. (ECF No. 91.) Accordingly, I recommend awarding Plaintiffs costs in the amount of $1,501.40.
VII. Post-Judgement Interest
Plaintiffs have not provided any request or argument for pre-judgment interest or post-judgment interest in their default judgment motion. Nevertheless, “the very language of 28 U.S.C. § 1961 ensures that an award of post-judgment interest is mandatory in any civil case where money damages are recovered.” Duffy v. Oyster Bay Indus., Inc., No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259798, at *3 (E.D.N.Y. Mar. 29, 2011), report & recommendation adopted, No. 10 Civ. 3205(ADS)(ETB), 2011 WL 2259749 (E.D.N.Y. June 2, 2011); see generally Begum v. Ariba Disc., Inc., No. 12 Civ. 6620(DLC), 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). Thus, in Tacuri v. Nithun Constr. Co., No. 14 Civ. 2908(CBA)(RER), 2015 WL 790060, at *12 (E.D.N.Y. Feb. 24, 2015), the court awarded the plaintiffs post-judgment interest, despite their failure to request post-judgment interest, on all sums awarded concerning their FLSA and NYLL wage-and-hours claims. Therefore, I respectfully recommend that the Plaintiffs also 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. See id.
CONCLUSION
For the reasons set forth above, I recommend that each Plaintiff be awarded the amounts comprised of unpaid minimum wages, overtime wages, liquidated damages, compensation to purchase tools of the trade where applicable, and statutory damages as delineated in the below chart. I also recommend awarding Plaintiffs attorneys' fees in the amount of $13,360.00, and the requested amount of costs in the amount of $1,501.40. Additionally, I order the Clerk of the Court to award Plaintiffs post-judgment interest. Plaintiffs are directed to serve a copy of this Report and Recommendation on Defendants and file proof of service of the same on the docket by no later than January 17, 2022.
Plaintiff Antonio Ivan Campos
Plaintiff Jose Rigoberto Sarceno Garcia
Plaintiff Maria Luzmila Chalfa Yamba
Regular Wages
N/A
$40,347.20
N/A
Overtime Wages
$92,972.50
11, 314.50
$94,415.04
Liquidated Damages
$92,972.50
$51,551.70
$94,415.04
Tools of the Trade Damages
N/A
$544.38
N/A
Statutory Damages - Wage Notices
$5,000
$5,000
$5,000
Statutory Damages - Wage Statements
$5,000
$5,000
$5,000
TOTALS:
$195,945.00
$113,757.78
$198,830.08
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. G(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. S(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 John G. Koeltl 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 Koeltl. 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).