Opinion
21-CV-4259 (AS) (JLC)
09-08-2023
CHIALA MARVICI and YASMINE FADIL, Plaintiffs, v. ROCHE FACILITIES MAINTENANCE LLC, et al., Defendants
HONORABLE ARUN SUBRAMANIAN, UNITED STATES DISTRICT JUDGE
REPORT AND: RECOMMENDATION
JAMES L. COTT UNITED STATES MAGISTRATE JUDGE
Chiala Marvici and Yasmin Fadil (“plaintiffs”), former employees of Roche Facilities Maintenance, LLC (“RFM”), brought this action against RFM and its agents Stephen Roche and Laura Amoruso (collectively “defendants”) alleging violations of the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).
According to plaintiffs, Fadil's first name is misspelled in the case caption. See Declaration of Justin Ames dated July 5, 2022 (“Ames Decl.”) ¶ 1, Dkt. No. 66-2.
After the Court granted a default judgment against the defaulting defendants and made a liability finding, this case was referred to me for an inquest into damages. For the reasons set forth below, I recommend awarding $57,009 in damages (plus prejudgment interest on $2,744.50 of the damages) to Marvici, $4,092 in damages (plus prejudgment interest on $2,046.40 of the damages) to Fadil, $18,194.50 in attorney's fees and costs, and post-judgment interest.
Amoruso is not subject to this inquest as a judgment has already been entered against her after she defaulted on a settlement agreement she had entered into with plaintiffs. See Dkt. No. 84. Accordingly, RFM and Roche are referred to collectively herein as the “defaulting defendants.”
I. BACKGROUND
A. Factual Background
The following facts, which are drawn from a review of the pleadings and submissions related to this inquest, are deemed established for the purposes of determining the defaulting defendants' liability and the damages to which plaintiffs are entitled. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“[A] defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.” (internal citation omitted)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all of [plaintiff's] factual allegations as true and draw all reasonable inferences in its favor[.]” (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981))).
RFM is a New York limited liability company with an office at 325 Hudson Street in Manhattan. Complaint (“Compl.”) ¶¶ 25, 27, Dkt. No. 1. RFM provides “janitorial and facilities maintenance services” to businesses in the New York City area. Id. ¶ 1. During the period relevant to plaintiff's' claims, Roche held the title of Chief Executive Officer, id. ¶ 2, and maintained operational control over the business, including the ability to hire and fire employees and set their schedules and pay. Id. ¶¶ 38, 45. Amoruso held the title of Chief Financial Officer. Id. ¶ 2.
1. Marvici's Work and Compensation
Defendants employed Marvici from on or around November 12 until on or around November 30, 2020 “to perform work related to the promotion of [RFM's] brand.” Proposed Findings of Fact and Conclusions of Law (“Proposed Findings”) ¶ 28, Dkt. No. 66. She initially received an offer letter from RFM indicating that her “base rate of pay was $20 per hour.” Id. ¶ 31. “Approximately three days after” she began working for defendants, “Marvici was informed her pay rate was being increased to $28 per hour.” Id. ¶ 38. For the duration of her employment, she worked five days a week, from approximately 9:00 a.m. to 6:30 p.m. in the office, id. ¶ 33, and then “work[ed] a significant number of hours per week from home,” id. ¶ 34, which added up to “approximately 65 hours per week.” Id. ¶ 35.
On or around November 19, 2020, Marvici received a check from Amoruso for $1,599.75, but the check bounced. Id. ¶¶ 39-41. When Marvici informed Amoruso what had happened, “Amoruso replied [that] there was fraud on her account and promis[ed] Marvici she would correct the issue.” Id. ¶ 42. On November 25, 2020, Amoruso paid Marvici $150 via the payment application CashApp “and handed her a replacement check for $1,599.75 from an account with the Brooklyn Cooperative Bank, which Marvici deposited in her bank account.” Id. ¶ 43. On November 27, 2020, on a call with all RFM employees, Amoruso announced that her bank account had been “defrauded” and told employees “she would pay their wages in cash on November 30, 2020.” Id. ¶ 44. On November 29, 2020, Marvici notified Amoruso that the second check had also bounced. Id. ¶ 45. On November 30, “Marvici's bank informed her” that the bank account “from which the check was written had been closed.” Id. ¶ 46.
That same day, “Marvici asked her RFM coworkers if any of them had received pay,” and they “confirmed” that they had not. Id. ¶ 47. Marvici then “approached Amoruso and asked her if she was going to get cash to pay the RFM employees for the previous weeks' work” and Amoruso “refused.” Id. ¶ 48. Later that day, “Amoruso met with the RFM employees regarding their conversation with Marvici” and “directed Marvici to meet with her and [Roche] in Amoruso's office.” Id. ¶ 50. “Marvici reiterated her complaints” that defendants “were not paying them for their work,” id. ¶ 51, and “immediately after and because Marvici complained of Defendants' unlawful pay practices as applied to herself and her RFM coworkers, Defendants terminated Marvici's employment and threatened her with legal action.” Id. ¶ 52.
The following day, “[o]n December 1, 2020, Amoruso handed Marvici $1,633 outside of Marvici's apartment,” and Amoruso told Marvici she would not receive any further payment from Defendants. Id. ¶ 53. “Marvici diligently searched for a position similar to the one she held with Defendants; however, she was unable to find employment until September 7, 2021.” Id. ¶ 58.
Plaintiffs mistakenly state in their Proposed Findings that it was Marvici who told Amoruso she would not receive any further payment. In her affidavit, Marvici makes clear it was Amoruso who said as much. See Dkt. No. 36-20 ¶ 45.
2. Fadil's Work and Compensation
Defendants employed Fadil as a sales associate from on or around November 23 to on or around “the end of December 2020.” Id. ¶ 59. Her rate of pay was $15 per hour, id. ¶ 63, and she worked five days a week, from 9:00 a.m. to 5:00 p.m.-a total of 40 hours per week. Id. ¶ 62.
Calculations submitted in the Ames Declaration estimate that Fadil “worked a total of approximately 22 days” during that period. Dkt. No. 66-2 ¶¶ 6(b)(xii), (xiii). As Fadil worked five days per week, 22 working days from November 23, 2020 is December 22, 2020.
“From December 1, 2020, until the end of her employment,” defendants paid Fadil a single direct deposit in the amount of $473.42, id. ¶ 64, and did not provide her with a paystub, statement of wages, or wage notice. Id. ¶¶ 64, 70. Fadil also “repeatedly complained to Amoruso” that she was not being paid for her work, and Amoruso responded “by promising to pay her shortly and claiming her accounts were the subject of fraud.” Id. ¶ 65. “In response[,] . . . Amoruso initiated a $1,200 mobile payment app transfer to Fadil” but “never funded” it. Id. ¶ 66. Fadil “continued to complain” and defendants “continu[ed] to make excuses for their nonpayment.” Id. As a result, “Fadil suffered from financial hardship” and “was forced to quit.” Id. ¶ 67. “After Fadil's employment . . . ended, [she] diligently searched for a [similar] position” and found one in “January 2021, approximately one week after she was forced to quit RFM.” Id. ¶ 72.
B. Procedural History
Plaintiffs filed their complaint on May 12, 2021. Dkt. No. 1. On May 13, 2021, the Court issued summonses as to all three defendants. Dkt. No. 4. On June 24, service was effectuated on RFM and Amoruso, respectively. Dkt. Nos. 6-7. Though RFM and Amoruso were each served, they failed to appear, and on August 17, 2021, the Court issued a Show Cause order directing plaintiffs to move for default judgment with respect to those defendants, and to show good cause why Roche was not timely served. Dkt. No. 8. On August 18, the Clerk of Court issued certificates of default as to RFM and Amoruso. Dkt. Nos. 15-16.
Plaintiffs made multiple unsuccessful attempts to serve Roche. Plaintiffs then requested, and the Court granted, permission to serve Roche by email; but attempts were unsuccessful. Dkt. Nos. 17-19. Plaintiffs were then given permission to attempt service of Roche by text message and mail to his last known residential address and the former office of RFM. Dkt. Nos. 20-21. Plaintiffs effectuated service on Roche accordingly, but he did not respond. Dkt. Nos. 22-26. On November 12, 2021, the Clerk of Court issued a certificate of default as to Roche. Dkt. No. 29.
On December 20, 2021, plaintiffs moved for a default judgment for joint and several liability against all defendants and filed an accompanying memorandum of law, declaration, and exhibits. Dkt. Nos. 35-38. Plaintiffs timely served the required papers on defendants. Dkt. Nos. 40-41, 44-46.
On January 14, 2022, attorney Richard Roth appeared on behalf of RFM, Roche, and Amoruso and requested a stay so the parties could engage in settlement negotiations or otherwise respond to the complaint. Dkt. Nos. 42-43. The Court granted the request. Dkt. No. 47. After unsuccessful settlement discussions, Roth filed an answer on behalf of all defendants. Dkt. No. 48. However, on March 30, 2022, Roth filed a letter requesting to withdraw his representation due to irreconcilable differences. Dkt. No. 52. On April 6, 2022, the Court found the withdrawal warranted and ordered RFM to retain new counsel within two weeks. Dkt. No. 54 at 1.
As a corporate entity, RFM is not permitted to proceed pro se. See, e.g., Lattanzio v. COMJTA, 481 F.3d 137, 139 (2d Cir. 2007) (“[A] layperson may not represent a separate legal entity such as a corporation.”).
On April 21, 2022, plaintiffs filed a letter motion requesting that, inter alia, terminating sanctions be imposed against defendants. Dkt. No. 56. On April 22, the Court issued an order denying plaintiffs' request, warning defendants that if a successor counsel had not appeared on behalf of RFM and if Roche had not yet appeared pro se by May 2, the Court would enter a default judgment against them. The Court further noted that “Amoruso appear[ed] available to litigate the case, albeit potentially without counsel” and ordered her to appear by May 2. Id. at 1-2.
On May 6, 2022, the Court entered a default judgment as to liability against RFM and Roche, permitted plaintiffs to supplement their motion with requests for reasonable attorney's fees and costs incurred since the motion, and then referred this case to me to conduct an inquest into damages as to the defaulting defendants. Dkt. Nos. 61-62.
As plaintiffs took no action to continue to litigate the case against Amoruso, on February 7, 2023, I directed plaintiffs and Amoruso to appear before me. Dkt. No. 68. Those parties agreed to participate in a settlement conference before me on March 13, and on April 13, after they consented to my jurisdiction, I approved a settlement agreement between them. Dkt. Nos. 75-76. On May 23, 2023, plaintiffs notified the Court that Amoruso had failed to make payments as required by the settlement agreement. Dkt. No. 78. Despite receiving notice of her breach and being given time to cure, see Dkt. Nos. 85-86, Amoruso failed to comply with the terms of the settlement. Accordingly, on July 10, I granted plaintiffs' motion to enforce their judgment and directed Amoruso to pay $35,000 to Marvici and $24,000 to Fadil, plus prejudgment interest (to both plaintiffs) retroactive to May 1, 2023 (the date of the breach), and entered judgment to that effect. Dkt. No. 89.
On May 9, 2023, I ordered plaintiffs to submit Proposed Findings of Fact and Conclusions of Law concerning their damages and any other monetary relief owed by RFM and Roche as a result of the default judgment against them. Dkt. No. 63.Plaintiffs accordingly submitted their Proposed Findings, memorandum of law (“Pl. Mem.”), and declarations and exhibits on July 7. Dkt. No. 66. The defaulting defendants' responses were due on July 27, Dkt. No. 65, but to date, they have not responded.
“It is generally agreed that when a plaintiff settles with one of several joint tortfeasors, the nonsettling defendants are entitled to a credit for that settlement.” McDermott, Inc. v. AmClyde, 511 U.S. 202, 208 (1994). However, as “it is the nonsettling defendant's responsibility to establish ‘the equitable shares attributable to the settling defendants for purposes of reducing the amount of [the non-settling defendant's] responsibility for their damages,” Chen v. Yuen, No. 04-CV-6579 (GBD) (KNF), 2015 WL 7758532, at *4 (S.D.N.Y. Dec. 1, 2015) (quoting Bigelow v. Ascands, Inc., 196 A.D.2d 436, 438 (1st Dep't 1993)), “[m]ost courts in the Second Circuit . . . have held that a defendant in default may not invoke the benefits of the set-off rule.” Gov't Employees Ins. Co. v. David Sanni-Thomas, D.O., No. 13-CV-4966 (MKB) (SMG), 2015 WL 5692875, at *11-12 (E.D.N.Y. Sept. 4, 2015) (collecting cases), adopted sub nom. Gov't Employees Ins. Co. v. Zemlyansky, 2015 WL 5692899 (Sept. 27, 2015). Here, as the defaulting defendants have filed no opposition to plaintiffs' claims, they have failed to carry their burden of establishing that they are entitled to any offset of damages based on plaintiffs' settlement with Amoruso.
II. DISCUSSION
A. Legal Standards for an Inquest Into Damages
Once liability has been established, as is the case here, see Dkt. No. 61, the only remaining issue is “whether the plaintiff has provided adequate support for the [damages] it seeks.” Bleecker v. Zetian Sys., Inc., No. 12-CV-2151 (DLC), 2013 WL 5951162, at *6 (S.D.N.Y. Nov. 1, 2013) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997)); see also Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages.”).
Establishing the appropriate amount of damages involves two steps: “(1) ‘determining the proper rule for calculating damages on . . . a claim'; and (2) ‘assessing plaintiff's evidence supporting the damages to be determined under this rule.'” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *4 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). The plaintiff must submit “sufficient evidence, in the form of detailed affidavits and other documentary materials to enable the district court to ‘establish damages with reasonable certainty.'” Nat'l Photo Grp., LLC v. Bigstar Entm't, Inc., No. 13-CV-5467 (VSB) (JLC), 2014 WL 1396543, at *2 (S.D.N.Y. Apr. 11, 2014) (quoting Transatl. Marine Claims Agency, 109 F.3d at 111) (internal citations omitted), adopted by 2014 WL 5051275 (Oct. 8, 2014); see also Fed.R.Civ.P. 55(b)(2). Although Rule 55 of the Federal Rules of Civil Procedure permits the Court to conduct hearings to determine damages, it is not mandatory. See, e.g., Cement & Concrete Corkers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012).
The Second Circuit has long approved the process of conducting an inquest by affidavit, without an in-person court hearing, “as long as [the court has] ensured that there was a basis for the damages specified in the default judgment.” Transatl.
An employee seeking to recover unpaid wages “‘has the burden of proving that [s]he performed work for which [s]he was not properly compensated.'” Jiao v. Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689 (1946)). “[T]he employee should not speculate, but may rely on [her] present memory and recollection to carry the burden.” Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *3 (S.D.N.Y. May 14, 2012) (internal citations and quotation marks omitted), adopted by Order dated Aug. 9, 2012 (Dkt. No. 20). An affidavit that sets forth the number of hours worked is sufficient. See, e.g., Rodriguez v. Queens Convenience Deli Corp., No. 09-CV-1089 (KAM) (SMG), 2011 WL 4962397, *2 (E.D.N.Y. Oct. 18, 2011). Absent “rebuttal by defendants . . . [the employee's] recollection and estimates of hours worked are presumed to be correct.” Kernes v. Global Structures, LLC, No. 15-CV-659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Feb. 9, 2016) (internal citations and quotation marks omitted) (alterations in original), adopted by Order dated Mar. 1, 2016 (Dkt. No. 27).
B. Damages
Marvici and Fadil each seek damages for unpaid wages, liquidated damages for unpaid wages; statutory damages for wage notice and wage statement Marine Claims Agency, Inc., 109 F.3d at 111 (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). Here, “a hearing is not necessary, as documents submitted in this action provide a ‘sufficient basis from which to evaluate the fairness' of the damages requested.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *4 (S.D.N.Y. June 15, 2016) (quoting Fustok, 873 F.2d at 40), adopted by 2016 WL 4532201 (Aug. 29, 2016). violations; back pay wages for retaliation; liquidated damages for retaliation; and prejudgment interest. See Proposed Findings ¶¶ 75-76. Marvici additionally seeks damages for overtime compensation and spread of hours pay. Id. ¶ 75. Where there is liability under both the FLSA and NYLL, a plaintiff recovers “under the statute which provides the greatest amount of damages.” Almanzar v. 1342 St. Nicholas Ave. Rest. Corp., No. 14-CV-7850 (VEC) (DF), 2016 WL 8650464, at *7 (S.D.N.Y. Nov. 7, 2016), adopted by 2017 WL 1194682 (Mar. 30, 2017); see also, e.g., Salazar v. 203 Lena Inc., No. 16-CV-7743 (VB) (JLC), 2020 WL 5627118, at *4 (S.D.N.Y. Sept. 18, 2020), adopted by 2020 WL 6257158 (Oct. 23, 2020). As NYLL provides for greater relief, except as to Marvici's retaliation claim, it applies to the calculation of damages in this case.
1. Unpaid Wages, Overtime, and Spread of Hours Pay
a. Legal Standard
The FLSA requires employers to pay employees at least the federal minimum wage for every hour worked, see 29 U.S.C. § 206, or the state minimum wage if it exceeds the federal minimum wage. See 29 U.S.C. § 218(a). At all times relevant here, the state minimum wage was $15.00 per hour, which was higher than the federal minimum wage. NYLL § 652(a)(ii).
Both federal and state law also require employers to pay employees overtime wages at one and one-half times the wage for time worked in excess of 40 hours per week. 29 U.S.C. § 207(a)(1); 12 NYCRR §§ 146-1.4, 142-2.2; Kernes, 2016 WL 880199, at *3 (“[A]n employee is entitled to be paid for overtime hours (i.e., hours exceeding 40 per week), at a ‘rate not less than one and one-half times the regular rate at which [the employee] is employed.'” (quoting 29 U.S.C. § 207(a)(1))). Overtime wages are “calculated by multiplying [an employee's] regular hourly rate (or the minimum wage rate, if his regular hourly rate falls below the minimum wage) by one and one-half. That rate is then multiplied by the number of hours in excess of forty hours the employee worked each week.” Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL 1600057, at *4 (S.D.N.Y. Apr. 7, 2015), adopted by 2015 WL 4557147 (July 28, 2015).
NYLL's “spread of hours” provision requires an additional hour's pay at the “basic minimum hourly wage rate” for any day where the employee's spread of hours exceeds ten. 12 NYCRR § 142-2.4. The “spread of hours” is “the interval between the beginning and end of an employee's work day,” including “working time plus time off for meals plus intervals off duty.” Id. § 142-2.
b. Marvici's Unpaid Wages
Marvici received two payments related to her employment at RFM-a $150 CashApp payment and a $1,633 cash payment-which totaled $1,783. Proposed Findings ¶¶ 43, 53. She worked “approximately 12 days,” Dkt. No. 66-2, ¶¶ 6(b)(xii), (xiii), for “approximately 65 hours per week,” Proposed Findings ¶ 35, for a total of approximately 150 hours. Thus, she effectively received an hourly wage of $11.89 ($1,783- 150) per hour, below New York State's $15 per hour minimum wage.
Although Marvici alleged that she worked “approximately 65 hours per week,” id. ¶ 35, which averages to 13 hours per day, five days per week, plaintiffs' submissions estimate that Marvici worked 65 hours for two weekly pay periods and then 20 total hours during the pay period beginning on November 26. See, e.g., Dkt. 66-3. Therefore, according to plaintiffs' submissions, Marvici worked 150 hours total.
Moreover, Marvici initially received an offer letter from RFM indicating that her “base rate of pay was $20 per hour, id. ¶ 31, and “[a]pproximately three days after,” she “was informed her pay rate was being increased to $28 per hour.” Id. ¶ 38. Thus, Marvici proposes that the Court calculate wages owed based on the applicable $20 and $28 per hour rates she was promised. See Pl. Mem. at 7.
While “[t]he FLSA allows recovery for unpaid ‘straight' time only up to the minimum wage rate[,] . . . NYLL provides . . . for a claim of straight time at a rate higher than the minimum wage if the parties previously agreed to the rate.” Villar v. Prana Hosp., Inc., No. 14-CV-8211 (RA) (JCF), 2017 WL 1333582, at *4 (S.D.N.Y. Apr. 11, 2017) (citing cases), adopted by 2018 WL 3579841 (July 25, 2018); see also NYLL § 191(1)(d) (“clerical and other worker shall be paid the wages earned in accordance with the agreed terms of employment”). As Marvici has submitted a sworn affidavit that she was promised a higher rate of pay and that she performed work in exchange for that promise, Dkt. No. 36-20, here, in the default context, she has “provided a sufficient basis for determination of damages” under NYLL. Santillan v. Henao, 822 F.Supp.2d 284, 293 (E.D.N.Y. 2011) (“Plaintiff has submitted a sworn declaration containing information as to hours worked and rates of pay based on estimation and recollection.... [I]n the default context, where the defendants have failed to dispute plaintiff's allegations, I find that plaintiff has provided a sufficient basis for determination of damages.”); see also Ortega v. JR Primos 2 Rest. Corp., No. 15-CV-9183 (JCF), 2017 WL 2634172, at *4 (S.D.N.Y. June 16, 2017) (“As the defendants agreed to pay the plaintiff [a specified rate above the minimum wage] during the last year of his employment, he is entitled to recover unpaid hours at that rate under the NYLL.”); cf. Burns v. Scott, 635 F.Supp.3d 258, 278 (S.D.N.Y. 2022) (on inquest, accepting as true plaintiff's submission that “Defendants agreed to pay plaintiff a placement fee and wages”), reconsideration denied, 2022 WL 18858909 (Nov. 9, 2022); Peralta v. M & O Iron Works, Inc., No. 12-CV-3179 (ARR) (RLM), 2014 WL 988835, at *8 (E.D.N.Y. Mar. 12, 2014) (on inquest, court “entitled to rely on plaintiff's general recollection where . . . defendants failed to produce relevant business records showing plaintiff's pay or hours”). Marvici should therefore be awarded unpaid wages as follows:
Wage Rate
Marvici's Actual Hourly Wage Rate
Underpayment per Hour
Hours Worked
Underpayment per Period (Underpayment per Hour x Hours Worked)
11/26, 11/27, 11/30/2020
$28.00
$11.89
$16.11
20
$322.20
11/23/2020 - 11/25/2020
$28.00
$11.89
$16.11
39
$628.29
11/17/2020 - 11/20/2020
$28.00
$11.89
$16.11
52
$837.72
11/12, 11/13, 11/16/2020
$20.00
$11.89
$8.11
39
$316.29
TOTAL UNPAID WAGE
$2,104.50
The estimation of days worked assumes a Monday-Friday workweek, with the first day in the chart, November 12, 2020, being a Thursday.
Marvici should be awarded $2,104.50 in unpaid wages under NYLL.
c. Fadil's Unpaid Minimum Wages
From December 1 to December 22, 2020, Fadil received a single payment of $473.42. Proposed Findings ¶ 64. As she worked approximately 40 hours per week, id. ¶ 62, she worked approximately 128 hours between December 1 and December 22, 2020. Thus, she effectively received $3.70 per hour ($473.42 ÷128), well below New York State's $15 per hour minimum wage. Fadil should thus be awarded unpaid minimum wages as follows:
As explained above, Fadil affirmed that she worked until the “end of December” but did not provide an exact date that she stopped working for defendants. Dkt. No. 36-22 ¶ 2. As the Ames Declaration estimates that she worked a total of 22 days, see Ames Decl. ¶ 6(b)(xiii) (“Fadil worked a total of approximately 22 days[.]”), and as she began on November 23 at five days worked per week, the Court considers December 22 to be her last day.
Although Fadil began working for defendants on or around November 23, 2020, id. ¶ 59, she says nothing about whether she was paid for that first week. She says only that the single payment she received was “[f]rom December 1, 2020, until the end of her employment.” Id. ¶ 64. Accordingly, the above calculations account only for days worked between December 1 and December 22, 2020.
Pay Period (Week of)
Small Employer Min. Wage Rate
Fadil's Actual Hourly Wage Rate
Underpayment per Hour
Hours Worked
Underpayment per Week (Underpayment per Hour x Hours Worked)
12/22/2020
$15.00
$3.70
$11.30
8
$90.40
12/15/2020
$15.00
$3.70
$11.30
40
$452.00
12/8/2020
$15.00
$3.70
$11.30
40
$452.00
12/1/2020
$15.00
$3.70
$11.30
40
$452.00
TOTAL UNPAID MINIMUM WAGE
$1,446.40
Fadil should be awarded $1,446.40 in unpaid minimum wages under NYLL.
d. Marvici's Overtime Compensation
Marvici's overtime compensation should be determined by multiplying her agreed upon wage rate by one and one-half. See, e.g., Aponte v. 5th Ave. Kings Fruit & Vegetables Corp., No. 20-CV-5625, 2022 WL 3655185, at *10 (E.D.N.Y. Aug. 25, 2022) (“[P]laintiff is entitled to recover unpaid overtime premium wages under the NYLL in the amount of a 50-percent premium over his regular hourly rate.”); 12 N.Y. C.R.R. § 142-2.2 (“An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate[.]”). Thus, Marvici's award for unpaid overtime compensation (excluding regular wages already calculated in the prior chart) should be calculated as follows:
Days Worked
Wage Rate
Overtime Owed (50 % of wage rate)
Hours worked
Total Owed Overtime per Period (Overtime Owed x Overtime Hours in Period)
11/26, 11/27, 11/30/2020
$28.00
$14.00
20
0
-
11/23/2020 - 11/25/2020
$28.00
$14.00
39
15
$210.00
11/17/2020 - 011/20/2020
$28.00
$14.00
52
20
$280.00
11/12, 11/13,11/16/2020
$20.00
$10.00
39
15
$150.00
TOTAL UNPAID OVERTIME COMPENSATION
$640.0
As discussed supra, while Marvici did not articulate specifically how many hours she worked in a given day (she alleged only that she worked “approximately 65 hours per week,” Proposed Findings ¶ 35), the above calculations estimate that she worked an average of 13 hours per day. Although NYLL only entitles wage workers to overtime for more than 40 hours worked per week, 29 U.S.C. § 207(a)(1); Hobbs v. Knight-Swift Transportation Holdings, Inc., No. 21-CV-1421 (AT), 2022 WL 118256, at *3 (S.D.N.Y. Jan. 12, 2022) (overtime claims under NYLL “are evaluated under the same standards as claims under the [FLSA]”), the above estimates assume overtime pay was owed for 5 hours per day during the two weeks Marvici alleged to be working 65 hours.
Marvici should be awarded $640.00 in unpaid overtime compensation under NYLL.
e. Marvici's Spread of Hours Compensation
Marvici argues that she is additionally entitled to spread of hours pay. See Pl. Mem. at 6-7. However, with exceptions not applicable here, a plaintiff may not recover spread of hours pay if she earns more than the minimum wage. See, e.g., Wuzi Jiao v. Kitaku Japanese Rest., Inc., No. 16-CV-2694 (RRM) (RML), 2020 WL 2527588, at *11 (E.D.N.Y. Mar. 13, 2020) (“The weight of authority in this Circuit holds that a limitation upon a plaintiff's eligibility to recover for spread-of-hours pay is that the plaintiff not earn more than the state minimum wage.” (cleaned up)), adopted by 2020 WL 2523109 (May 18, 2020); Leon v. Zita Chen, No. 16-CV-480 (KAM) (PK), 2017 WL 1184149, at *7 (E.D.N.Y. Mar. 29, 2017) (“Courts, however, have given deference to the New York State Department of Labor's interpretation that spread-of-hours does not apply to an employee whose workday is in excess of ten hours if his or her total daily compensation exceeds the New York State minimum wage multiplied by the number of hours he or she worked plus one additional hour at the minimum wage.”); Armata v. Unique Cleaning Servs., LLC, No. 13-CV-3625 (DLI) (RER), 2015 WL 12645527, at *7 (E.D.N.Y. Aug. 27, 2015) (on inquest, declining to award spread of hours pay for time when agreed-upon wage rate was higher than minimum). As Marvici is entitled to recover wages above the applicable minimum wage of $15 per hour, she is not entitled to recover spread of hours pay.
f. Liquidated Damages on Minimum Wage and Overtime Claims
NYLL entitles an employee to liquidated damages “equal to [100%] of the total of such underpayments found to be due . . . unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law.” §§ 198(l-a), 663(1); see 29 U.S.C. §§ 216(b), 260. “[D]efaulting defendants . . . obviously [have] made no showing of good faith.” Schalaudek v. Chateau 20th St. LLC, No. 16-CV-11 (WHP) (JLC), 2017 WL 729544, at *10 (S.D.N.Y. Feb. 24, 2017) (quoting Xochimitl, 2016 WL 4704917, at *18), adopted as modified by 2017 WL 1968677 (May 11, 2017).
Because defendants defaulted, Marvici and Fadil are each entitled to liquidated damages for all of their unpaid wages. See, e.g., Gomez v. NYHS Design Inc., No. 20-CV-4174 (ALC) (GWG), 2022 WL 4284143, at *4 (S.D.N.Y. Sept. 16, 2022), adopted by 2022 WL 6175174 (Oct. 6, 2022). Defendants therefore owe $2,744.50 to Marvici and $1,446.40 to Fadil in liquidated damages under NYLL.
Plaintiffs additionally argue that they are entitled to liquidated damages for violation of the FLSA's prompt payment requirement. See Pl. Mem. at 6. To the extent this can be construed as a request for double recovery of liquidated damages under both the FLSA and NYLL, such recovery is not permitted in this Circuit. See, e.g., Ramirez v. Urion Constr. LLC, No. 22-CV-3342 (LGS), 2023 WL 3570639, at *6 (S.D.N.Y. May 19, 2023) (“[A] plaintiff is not entitled to double recovery of liquidated damages.” (citing Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018))). Moreover, although plaintiffs point to a First Department decision affirming the existence of a prompt payment requirement under NYLL, see Pl. Mem. at 6-7 (citing Vega v. CM & Assocs. Constr. Mgmt., LLC, 175 A.D.3d 1144, 1146 (1st Dep't 2019)), they do not provide any authority (nor is the Court aware of any) to support double liquidated damages under NYLL alone.
For Marvici, this amount equals the sum of unpaid wages ($2,104.50), plus unpaid overtime compensation ($640.00). For Fadil, this amount is equal to her unpaid minimum wages ($1,446.40).
2. Wage Notice and Wage Statement Violations
Under NYLL, “[e]mployees who were not provided a wage notice within ten business days of their first day of work can recover damages of ‘$50 for each workday that a violation occurs or continues to occur, not to exceed $5,000' [(100 days)] and employees can recover ‘$250 for each workday that a wage statement violation occurs or continues to occur, not to exceed $5,000'” (20 days). See Canaveral, 2019 WL 4195194, at *5-6 (quoting Pastor v. Alice Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *5 (S.D.N.Y. Nov. 21, 2017)); see also NYLL § 198(1-b), (1-d).
However, “[i]n the wake of the Supreme Court's decision in TransUnion, courts in this Circuit have held that plaintiffs lack standing to bring wage notice and statement claims under the NYLL absent any concrete, downstream consequences of the recordkeeping violation.” Chen v. Lilis 200 W. 57th Corp., No. 19-CV-7654 (VEC), 2023 WL 2388728, at *8 (S.D.N.Y. Mar. 7, 2023) (referring to TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2205 (2021)). While “allegations” that go “beyond asserting a bare statutory violation and sufficiently allege a concrete harm” resulting from “the underpayment of wages” pass muster, Mateer v. Peloton Interactive, Inc., No. 22-CV-740 (LGS), 2022 WL 2751871, at *2 (S.D.N.Y. July 14, 2022), plaintiffs' allegations do not. They merely state that defendants violated wage notice and wage statement laws and do not refer to any resulting harm. See Proposed Findings ¶¶ 55-57, 69-71. As plaintiffs have “fail[ed] to demonstrate how the lack of accurate wage notices and statements led to either a tangible injury or something akin to a traditional cause of action,” Neor v. Acacia Network, Inc., No. 22-CV-4814 (ER), 2023 WL 1797267, at *4 (S.D.N.Y. Feb. 7, 2023) (cleaned up), the Court has no jurisdiction to adjudicate these claims and no damages should be awarded for these violations. See, e.g., Ramirez v. Urion Constr. LLC, No. 22-CV-3342 (LGS), 2023 WL 3570639, at *9 (S.D.N.Y. May 19, 2023) (adopting report and recommendation denying damages for wage notice and statement violations though liability had already been established).
For instance, Marvici and Fadil each stated only that “Defendants failed to keep accurate records of the wages she earned or the hours [they] worked.” Proposed Findings ¶¶ 55, 69.
3. Lost Wages
a. Legal Standard
“Under the FLSA, an employer may not ‘discharge or in any other manner discriminate against an employee because such employee has filed a complaint or instituted any proceeding under [the FLSA].'” Belizaire v. RAV Investigative & Sec. Services Ltd., 61 F.Supp.3d 336, 354 (S.D.N.Y. 2014) (quoting 29 U.S.C. § 215(a)(3)). NYLL similarly prohibits employers from retaliating against employees for engaging in a protected activity. See NYLL § 215(1)(a)(i). Once liability as to a FLSA or NYLL retaliation claim is established, as is the case here, both statutes permit the award of “equitable relief as may be appropriate,” including “the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b); see also NYLL § 215(2)(a) (plaintiffs may request “an award of lost compensation and damages”).
Normally, to calculate lost wages, the amount a plaintiff would have earned in a week is multiplied by the number of weeks she was unemployed. See, e.g., Perry v. High Level Dev. Contracting & Sec. LLC, No. 20-CV-2180 (AMD) (PK), 2022 WL 1018791, at *11 (E.D.N.Y. Mar. 16, 2022), adopted by 2022 WL 1017753 (Apr. 5, 2022). However, where a plaintiff holds a position for only a short period but then requests lost wages for an outsized number of weeks, courts in this Circuit have exercised their discretion to limit the award amount. See, e.g., Thompson v. Jennings & Hartwell Fuel Oil Corp., No. 14-CV-1857 (RJD) (LB), 2015 WL 5437492, at *7 (E.D.N.Y. Aug. 27, 2015) (reducing request for $67,200 in lost wages to $36,400), adopted by 2015 WL 5444939 (Sept. 15, 2015); Parilla v. Salt & Pepper on 33rd St. Inc., No. 12-CV-6382 (AKH), 2013 WL 4536628, at *3 (S.D.N.Y. Apr. 8, 2013) (“[G]iven that [plaintiff] worked for Defendants for only one week, . . . $1,000 is an appropriate award for his retaliatory firing[.]”).
The FLSA has no limit as to the amount of liquidated damages a plaintiff may be awarded, 29 U.S.C. § 216(b), while NYLL imposes a $20,000 limit on liquidated damages for retaliation. NYLL § 215(2)(a).
b. Marvici's Lost Wages
Despite only working for 12 days for defendants, Marvici requests lost wages for a time period of 40 weeks, see id. ¶ 58 (“[S]he was unable to find employment until September 7, 2021.”); Ames Decl. ¶ 6(b)(xiii) (calculating 40 weeks), at an hourly rate of $28 per hour and an overtime rate of $42 per hour. See Proposed Findings, Ex. 2. In Thompson, the plaintiff worked “approximately six weeks, but request[ed] forty-eight weeks in lost wages,” and the court opted to limit lost wages to “the length of time between Plaintiff's termination and Plaintiff's counsel's request for a certificate of default.” 2015 WL 5437492, at *7. Here, plaintiff's counsel did not request a certificate of default until August 17, 2021, see Dkt. No. 8, and thus that approach would net Marvici almost the amount that she has requested (calculated to September 7, 2021). Instead, a more proportionate remedy would be to award lost wages to the date that the complaint was filed, May 12, 2021, see Dkt. No. 1, which was 23 weeks from the alleged termination date (November 30, 2020). Additionally, considering that Marvici only worked for defendants for 12 days and the record is not clear whether she worked overtime during her final pay period, awarding lost wages under the assumption that she would have consistently worked overtime would be unreasonable. Cf. Brito v. Marina's Bakery Corp., No. 19-CV-828 (KAM), 2022 WL 875099, at *24 (E.D.N.Y. Mar. 24, 2022) (“calculation of front pay is not unduly speculative as it is based on applicable minimum wages and a diligent record of hours worked”). Accordingly, Marvici's weekly lost wages should be calculated at 40 hours, rather than 65 hours, per week.
In sum, Marvici should be entitled to lost wages of $1,120.00 per week ($28 x 40 hours) multiplied by 23 weeks of unemployment, for a total of $25,760 in lost wages and an equivalent amount ($25,760) as liquidated damages for defendants' retaliatory actions. In total, Marvici should be entitled to $51,520 in damages for her lost wages under the FLSA.
c. Fadil's Lost Wages
Although Fadil argues that her liquidated damages should be assessed at NYLL's maximum of $20,000, Pl. Mem. at 9, that amount is disproportionate to the approximately three weeks (22 days) she actually worked. See, e.g., Blackwell v. Actor's Playhouse, No. 14-CV-603 (LGS) (FM), 2016 WL 11483834, at *7 (S.D.N.Y. Apr. 4, 2016) (where plaintiff requested $20,000 in liquidated damages, instead awarding liquidated damages equal to $8,333.33 of lost wages), adopted by 2016 WL 5239623 (Sept. 22, 2016). However, one week in lost wages for the time she estimates it took her to find new work, Proposed Findings ¶ 72, would not amount to an outsized windfall. See, e.g., Parilla, 2013 WL 4536628, at *3 (“[G]iven that [plaintiff] worked for Defendants for only one week, . . . $1,000 is an appropriate award for his retaliatory firing[.]”). Thus, Fadil should be entitled to $600 ($15 hourly rate x 40 hours) in lost wages and an additional $600 in liquidated damages for defendants' retaliatory actions, for a total of $1,200 for her lost wages claim.
4. Prejudgment Interest
a. Legal Standard
Plaintiffs also each seek prejudgment interest. Pl. Mem. at 12. “[C]ourts typically award prejudgment interest on damages for NYLL violations.” Pineda v. Frisolino, Inc., No. 15-CV-3774 (GBD), 2017 WL 3835882, at *13 (S.D.N.Y. Aug. 29, 2017) (quoting McLean v. Garage Mgmt. Corp., No. 09-CV-9325 (DLC), 2012 WL 1358739, at *10 (S.D.N.Y. Apr. 19, 2012)). Prejudgment interest is available only for compensatory damages, not liquidated damages. See Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 557 (S.D.N.Y. 2017) (collecting cases). A plaintiff is therefore “entitled to prejudgment interest on his damages for unpaid base wages, unpaid overtime, and unpaid spread-of-hours compensation.” Mendoza, 2022 WL 2531343, at *15.
Although courts in this Circuit have diverged in applying prejudgment interest to lost wages awarded for retaliation claims under the NYLL, see, e.g., Ilagorre v. LT Burger, Inc., No. 22-CV-3107 (JMA) (JMW), 2023 WL 4532445, at *3 (E.D.N.Y. July 13, 2023) (applying prejudgment interest to unpaid overtime, not lost wages); Ramah v. 138 Hillside Ave Inc., No. 20-CV-3317 (LDH) (LB), 2021 WL 7906551, at *10 (E.D.N.Y. Aug. 24, 2021) (“[P]laintiff is entitled to prejudgment interest on the actual damages he is owed under the NYLL, namely his unpaid overtime wages and lost wages following his termination.”), adopted by Order dated September 16, 2021, the Court is persuaded by NYLL's permissive language, which provides that “[i]n any action instituted in the courts upon a wage claim by an employee . . . the court shall allow such employee to recover . . . prejudgment interest.” NYLL § 198(1-a) (emphasis added). Thus, Fadil should be awarded prejudgment interest on her lost wages claim.
New York law sets the prejudgment interest rate at nine percent per year. N.Y. C.P.L.R. § 5004. Courts in this District generally calculate prejudgment interest from the midpoint date between the start of the damages period up to and including the date judgment is entered. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at *7 (S.D.N.Y. Oct. 5, 2018) (quoting Xochimitl, 2016 WL 4704917, at *18), adopted by 2018 WL 6173713 (Nov. 23, 2018).
b. Prejudgment Interest for Marvici
For Marvici, a reasonable intermediate date is November 21, 2020, the midpoint between the first time (November 12, 2020) and the last time (November 30, 2020) she was denied wages. See Proposed Findings ¶ 28. A nine percent interest rate should therefore be applied to the balance of $2,744.50 (the sum of unpaid wages and overtime compensation) from November 21, 2020 until the date that a final judgment is entered. See, e.g., Canaveral, 2019 WL 4195194, at *6; Soto, 2018 WL 4844018, at *7.
c. Prejudgment Interest for Fadil
For Fadil, a reasonable intermediate date is December 15, 2020, the midpoint between the first time she was denied wages (December 1, 2020) and one week from her estimated final work day of December 22 (December 29, 2020). See Proposed Findings ¶ 64; Ames Decl. ¶ 6(b)(xiii). A nine percent interest rate should therefore be applied to the balance of $2,046.40 (the sum of unpaid minimum wages and lost wages) from December 15, 2020 until the date that a final judgment is entered. See, e.g. Ramah 2021 WL 7906551, at *10.
5. Automatic Increase of Judgment
Under NYLL,
if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.NYLL § 198(4). This “increase applies only to damages awarded under state law.” Rosa v. La Oficina of Queens, Inc., No. 18-CV-6915 (FB) (PK), 2023 WL 2745214, at *14 (E.D.N.Y. Mar. 17, 2023) (citing cases), adopted by 2023 WL 2736237 (Mar. 31, 2023). “Accordingly, if [d]efendants fail to satisfy the judgment within the stated deadlines, then [p]laintiff[s are] entitled to a fifteen percent increase in the amount of damages owed to [them]” under NYLL-in this case, to all damages except for those for Marvici's lost wages, which should be awarded under the FLSA. Id.
6. Post-Judgment Interest
“[P]laintiffs are entitled to post-judgment interest on all money awards as a matter of right.” Sanchez v. Jyp Foods Inc., No. 16-CV-4472 (JLC), 2018 WL 4502008, at *14 (S.D.N.Y. Sept. 20, 2018); see also 28 U.S.C. § 1961(a) (“Interest shall be allowed on any money judgment in a civil case recovered in a district court.”). “Post-judgment interest is calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of judgment.” Morales, 2016 WL 4084159, at *11 (citing 28 U.S.C. § 1961(a)). Plaintiffs are therefore “entitled to post-judgment interest on all sums awarded, including attorney's fees and costs, commencing when the Clerk of the Court enters judgment until the date of payment.” Canaveral, 2019 WL 4195194, at *7.
C. Attorney's Fees and Costs
Plaintiffs also seek $36,260.00 in attorney's fees and $1,698.00 in litigation costs. See Proposed Findings ¶ 77.
1. Attorney's Fees
Both the FLSA and NYLL allow prevailing plaintiffs to receive reasonable attorney's fees and costs. 29 U.S.C. § 216(b); NYLL § 198(l-a). A reasonable fee is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (“[T]he product of a reasonable hourly rate and the reasonable number of hours required by the case . . . creates a ‘presumptively reasonable fee.'”). A reasonable fee must be calculated from an application for fees and costs supported by contemporaneous time records that specify “for each attorney, the date, the hours expended, and the nature of the work done.” Canaveral, 2019 WL 4195194, at *7 (quoting N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). Courts ultimately have broad discretion in determining reasonable attorney's fees. See Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014) (“We afford a district court considerable discretion in determining what constitutes reasonable attorney's fees in a given case” (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir. 2008)); Hensley, 461 U.S. at 437).
a. Reasonable Hourly Rate
“The reasonable hourly rate is the amount ‘a reasonable, paying client would be willing to pay,' which varies by practice area and location.” Acharya v. Solanki, No. 18-CV-8010 (MKV) (JLC), 2022 WL 1144696, at *6 (S.D.N.Y. Apr. 12, 2022), adopted by 2022 WL 1239585 (Apr. 27, 2022) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). The reasonable rate is typically determined based on prevailing market rates for “similar services by lawyers of reasonably comparable skill, experience, and reputation.” Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998). “To make this determination, a court may ‘rely on its own knowledge of local, comparable rates.'” Schalaudek, 2017 WL 729544, at *12 (quoting Yuquilema v. Manhattan's Hero Corp., No. 13-CV-461 (WHP) (JLC), 2014 WL 4207106, at *13 (S.D.N.Y. Aug. 20, 2014), adopted by 2014 WL 5039428 (Sept. 30, 2014)).
Plaintiffs request a rate of $350.00 per hour for their counsel, Justin Ames, a senior associate at the Akin Law Group. Pl. Mem. at 15; Ames Decl. ¶ 1. As was summarized in a recent case in this District, Ames “graduated from law school in 2012, and practiced criminal and matrimonial law until 2019, when he joined the firm and began working almost exclusively on plaintiff's wage-and-hour and employment discrimination matters.” Arroyo v. J & M Realty Servs. Corp., No. 21- CV-3611 (PAE), 2022 WL 595936, at *2 (S.D.N.Y. Feb. 28, 2022); see also Ames Decl. ¶ 7(a)(i) (same). Considering Ames' experience, his associate status, and that “[o]ther courts in this district ‘routinely approve of an hourly rate for associates between $200 and $300' an hour,” an award of $250 per hour is appropriate here, as it was in Arroyo. See Arroyo, 2022 WL 595936, at *2.
b. Reasonable Number of Hours
Plaintiffs request attorney's fees for 103.60 hours. See Pl. Mem. at 15; Dkt. No. 66-5 at 1-10. “In evaluating the reasonableness of hours expended, courts consider ‘not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” O.R. v. N.Y.C. Dep't of Educ., 340 F.Supp.3d 357, 366-67 (S.D.N.Y. 2018) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1999)). Courts must make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended,” De La Cruz Moreno v. Happy Angel Nail Spa Inc., No. 15-CV-10078 (LGS) (GWG), 2019 WL 2438966, at *9 (S.D.N.Y. June 12, 2019) (quoting Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994)), adopted by 2019 WL 2717153 (June 28, 2019), taking into “account of claimed hours that it views as ‘excessive, redundant, or otherwise unnecessary.'” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley, 461 U.S. at 434).
In support of plaintiffs' request for attorney's fees, Ames, the “sole attorney who performed work on this case,” Ames Decl. ¶ 7(a)(i), provided the Court with a copy of his contemporaneous time records. See Dkt. No. 66-5 at 1-10. These records include the hours expended, dates of work, and descriptions of the tasks performed. Id. In total, Ames billed 103.6 hours to this case, id. at 10, a higher amount than is typical in similar wage and hour suits resolved by default judgment and without an inquest hearing, see, e.g., Victor, 2022 WL 3656312, at *16 (28.5 hours reasonable); Xochimitl, 2016 WL 4704917, at *21 (14.80 hours reasonable), even those that involved “service issues.” See, e.g., de Los Santos v. Marte Constr., Inc., No. 18-CV-10748 (PAE) (KHP), 2020 WL 8549054, at *9 (S.D.N.Y. Nov. 25, 2020) (42.7 hours reasonable given “service issues”), adopted by 2020 WL 8549055 (Dec. 17, 2020).
“[I]n this District, Courts have reduced requested attorney fees by 20%-50% when billing records contain vague descriptions of the work performed, redundant internal communication, duplication of work, and indication that partner-level rates were charged for tasks that should have been performed by junior level associates or paralegals.” Lopez v. 1923 Sneaker, Inc., No. 18-CV-3828 (WFK) (RER), 2021 WL 1845057, at *11 (E.D.N.Y. Mar. 5, 2021) (citing cases), adopted by 2021 WL 1259623 (Apr. 6, 2021). Here, Ames is not a partner, and there is no indication that there was any paralegal who assisted him with administrative tasks. See Ames Decl. ¶ 7(a)(i) (“I am the sole attorney who performed work on this case.”). Moreover, the descriptions in his billing records, while brief, are specific and the time amounts appear reasonable.
However, this Court and others have reduced or excluded attorney's hours that were expended on matters related to non-defaulting defendants, finding that defaulting defendants are not responsible for attorney's fees related to other, nondefaulting defendants in the case and that, where attorneys seek fees that were billed for services related to both non-defaulting and defaulting defendants, such mixed fees should be reduced by a percentage. See, e.g., Bumble & Bumble, LLC v. Pro's Choice Beauty Care, Inc., No. 14-CV-6911 (VEC) (JLC), 2016 WL 658310, at *9-10 (S.D.N.Y. Feb. 17, 2016) (declining to award fees arising from legal services related to other defendants), adopted by 2016 WL 1717215 (Apr. 27, 2016); Tamel Dixon v. Correction Officer Richard Agbai, 15-CV-850 (AT) (AJP), 2016 WL 3702749 (S.D.N.Y. July 8, 2016) (reducing attorney's fees by 40 percent across-the-board where billing entries involved services related to non-defaulting defendants who had settled and “the settlement reached . . . was inclusive of attorney's fees”); Laboratorios Rivas, SRL v. Ugly & Beauty, Inc., No. 11-CV-5980 (RA) (JLC), 2013 WL 5977440, at *17 (S.D.N.Y. Nov. 12, 2013) (awarding 10% of fees claimed for tasks that related to defaulting defendants only in part, such as investigations, drafting amended complaint, and serving various defendants), adopted by 2014 WL 112397 (Jan. 8, 2014); Lucerne Textiles v. H.C.T. Textiles Co., No. 11-CV-5456 (KMW) (AJP), 2013 WL 174226, at *9 (S.D.N.Y. Jan. 17, 2013) (defaulting defendants “not responsible for fees related to [plaintiff's] claims against other parties,” and therefore not awarding attorney's fees for hours spent “discuss[ing] settlement'” with other defendants) (collecting cases); Colon v. City of New York, No. 09-CV-8 (JBW) (CLP), 2012 WL 691544, at *22 (E.D.N.Y. Feb. 9, 2012) (recommending denial of fees for tasks unrelated to plaintiff's case against defaulting defendants).
Here, the majority of tasks logged in Ames' billing do not relate exclusively to the defaulting defendants. See, e.g., Xochimitl, 2016 WL 4704917 at *21 (noting same about “tasks related to all Defendants” including meeting with plaintiff, “research,” and working on complaint). Meanwhile, Ames billed 3.3 hours of work related exclusively to defendant Amoruso and thus “entirely unrelated to the defaulting defendants.” Id. at *22; see Dkt. No. 66-5 at 6-9 (June 9, 2021 call with clients about “serving Laura [Amoruso]” (0.3 hours); January 11, 2022 call with Amoruso involving settlement talks (1.8 hours); April 20, 2022 “review of email from D Amoruso” (0.2 hours); May 2, 2022 “review” and response another letter from Amoruso (1 hour)). On the other hand, Ames billed 12.9 hours on services exclusively related to the defaulting defendants, namely those billed between May 23 and July 5, 2022 for work on the inquest submissions reviewed herein. See Dkt. No. 66-5 at 9-10.
Accordingly, the Court recommends that the 3.3 hours dedicated exclusively to work involving Amoruso be subtracted from the total fees requested, plaintiffs be awarded full fees for the 12.9 hours spent on hours spent preparing the inquest submission, and the remaining 87.4 hours be subject to a 33.33% reduction (equal to 58.27 hours). Such a reduction is appropriate because the two defaulting defendants should not be responsible for fees related to litigating the case against their co-defendant Amoruso and, although an approximation, it reflects that work related to one-third of the defendants (Amoruso) should be excluded here. Plaintiffs should thus be awarded fees for 71.17 hours (58.27 + 12.90), which, multiplied by Ames' $250 per hour rate, amounts to $17,792.50 in attorney's fees. As noted, this is still an award on the high end relative to cases in similar postures.
2. Costs
Finally, plaintiffs seek $1,698.00 in costs. See Pl. Mem. at 17. “An employee who prevails in a wage-and-hour action is entitled to recover costs,” but only if substantiated with documents such as invoices or receipts. Xochimitl, 2016 WL 4704917, at *22 (citing 29 U.S.C. § 216(b); NYLL § 663(1)); Sanchez, 2018 WL 4502008, at *17 (“[The] requesting party must substantiate the request for costs.”) (quoting Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016)); see also, e.g., Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017) (denying costs where movant did not provide substantiation “such as invoices or receipts”), adopted by 2017 WL 3084408 (July 18, 2017). However, courts are willing to award costs without documentation for routine expenditures like filing fees. See, e.g., Soto, 2018 WL 4844018, at *9; Pastor, 2017 WL 5625556, at *9.
Here, plaintiffs submitted a billing record listing the $402.00 filing fee and five separate service of process fees. Dkt. No. 66-6. The Court takes judicial notice that the filing fee is $402, which is sufficient for an award in that amount. See, e.g., Soto, 2018 WL 4844018, at *9. However, as plaintiffs only submitted billing records, not invoices or receipts, for service of process fees, those fees are not recoverable. See, e.g., Antonio v. SipSak Inc., No. 21-CV-1871 (LGS) (SLC), 2022 WL 4796956, at *15 (S.D.N.Y. July 28, 2022) (same) (citing cases), adopted as modified by 2022 WL 4787739 (Oct. 3, 2022). Accordingly, plaintiffs should be awarded $402.00 in costs.
III. CONCLUSION
For the reasons stated herein, the Court should award Marvici $57,009 in damages (consisting of unpaid regular and overtime wages, lost wages, and liquidated damages for each); and prejudgment interest on $2,744.50 of the damages in an amount to be calculated upon entry of judgment. It should award Fadil $4,092 in damages (consisting of unpaid minimum wages, lost wages, and liquidated damages); and prejudgment interest on $2,046.40 of the damages in an amount to be calculated upon entry of judgment. It should further award attorney's fees and costs in the amount of $18,194.50; and post-judgment interest on all sums. Furthermore, an automatic increase of judgment should be applied to damages awarded under NYLL that “remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later.” Shanfa Li v. Chinatown TakeOut Inc., No. 16-CV-7787 (JCM), 2019 WL 3715086, at *2 (S.D.N.Y. Aug. 7, 2019) (quoting NYLL § 198(4)), aff'd, 812 Fed.Appx. 49 (2d Cir. 2020).
Fadil's lost wages should be awarded under NYLL so that she is entitled to an automatic increase of judgment, if it becomes applicable.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Arun Subramanian and the undersigned, United States Courthouse, 500 Pearl Street New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Subramanian.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).