Opinion
20-CV-05005 (JGK) (OTW)
11-03-2023
ENRIQUE RODRIGUEZ, individually and on behalf of others similarly situated, Plaintiff, v. HKS CONSTRUCTION CORP. (D/B/A HKS SCAFFOLDING), LK & GILL ENTERPRISE INC., KAMALJIT SINGH, HAPPI SINGH, and GIL R. LUCIO, Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE JOHN G. KOELTL
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Enrique Rodriguez (“Plaintiff”) brought this action against Defendants HKS Construction Corp. d/b/a HKS Scaffolding (“HKS Construction”), LK & Gill Enterprise Inc., Kamaljit Singh, Happi Singh, and Gil R. Lucio (“Defendants”) pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq., for, inter alia, failure to pay minimum wage and overtime compensation. Defendants never responded to the complaint. Accordingly, the Court granted a default judgment, and this case was referred to me to conduct an inquest into damages.
II. BACKGROUND
A. Factual Background
The following facts, drawn from Plaintiff's complaint (ECF 66-2, First Amended Complaint, hereinafter “Compl.”), are deemed established for the purposes of determining Defendants' liability and the damages to which Plaintiff is entitled. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that 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)).
Defendants jointly employed Plaintiff as a construction materials dispatcher from April 1, 2017, to March 4, 2020. Compl. ¶ 43, 45-46. Plaintiff alleges that throughout his term of employment, he worked over 40 hours a week without proper compensation. Compl. ¶ 50. Specifically, Plaintiff alleges that he worked 66 to 96 hours per week from April 1, 2017, to December 31, 2019, and 54 to 84 hours per week from January 1, 2020, to March 4, 2020. Compl. ¶¶ 51-53. Plaintiff further alleges that he was never provided proper wage notices in either English or Spanish (his primary language). Compl. ¶ 63. Plaintiff now brings claims asserting violations of minimum wage laws, unpaid overtime, notice violations, and recovery of equipment costs.
B. Procedural History
Plaintiff filed his complaint on June 30, 2020. (ECF 1). After Defendants failed to respond to the complaint, Plaintiff sought and received a Clerk's Certificate of Default for all five Defendants. (See ECF Nos. 11, 14, 17, 18, 20, 21, 41, 44, 54, and 55). On July 22, 2021, Judge Koeltl issued an order to show cause regarding why a default judgment should not be entered against Defendants. (ECF 56). Following Defendants' failure to respond to that order to show cause, on December 21, 2021, Judge Koeltl directed that a default judgment be entered against Defendants and referred the matter to me for an inquest on damages. (ECF Nos. 61 and 62).
I ordered Plaintiff to file his proposed findings of fact and conclusions of law by November 11, 2022, and directed Defendants to file their opposition, if any, by December 2, 2022. (ECF 63). Plaintiff filed his proposed findings of fact and conclusions of law on November 11, 2022. (ECF 65). To date, Defendants have not filed any submissions.
III. DISCUSSION
A. Legal Standard for an Inquest into Damages
Where default has been entered against a defendant, courts are to accept as true all of the well-pleaded facts alleged in the complaint, except those concerning the amount of damages. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 108 (2d Cir. 1997) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). Because a defaulting party does not concede mere legal conclusions, the court must still determine “whether the unchallenged facts constitute a legitimate cause of action.” In re Industrial Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y. Nov. 1, 2000) (cleaned up). Where a plaintiff's well-pleaded facts are sufficient to state a claim on which relief can be granted, the only remaining issue is if the plaintiff provided adequate support for his requested relief. See Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. Nov. 19, 2008) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)). Plaintiff must supply an evidentiary basis for the specific damages amount sought. Santana v. Latino Express Restaurants, Inc., 198 F.Supp.3d 285, 292 (S.D.N.Y. July 28, 2016).
An inquest into damages may be conducted without an evidentiary hearing. See Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir. 1993) (“[A] hearing is not required where a sufficient basis on which to make a calculation exists.”); Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *2 (S.D.N.Y. May 14, 2012). Here, no hearing was requested or held, as the damages awarded can be ascertained “with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc., 183 F.3d at 155.
B. Jurisdiction
This Court has proper subject-matter jurisdiction over the case because Plaintiff has asserted substantive claims under a federal law, the FLSA. See 28 U.S.C. § 1331. The Court can exercise supplemental jurisdiction over Plaintiff's state law claim. See 28 U.S.C. § 1367.
Although Plaintiff received a default, Plaintiff must still show proper service such that the Court can exercise personal jurisdiction over Defendants. See Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI) (CLP), 2017 WL 5033650, at *4 (E.D.N.Y. Sept. 22, 2017) (“Personal jurisdiction is a necessary prerequisite to entry of a default judgment.”). Under Federal Rule of Civil Procedure 4(e)(1), service of an individual can be affected by “following state law for serving a summons . . . where the district court is located, ” here New York. New York law permits service of an individual defendant by both delivering the summons and the complaint to “a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person served” and mailing the summons to the last known residence or place of business. N.Y. C.P.L.R. § 308(2). Here, Plaintiff submitted affidavits of service stating that Defendants Kamaljit Singh and Happi Singh were served by delivering each summons to Mr. Junior, a co-worker of both Defendants at their place of business, HKS Construction, and by mailing a copy of each summons and complaint to both Defendants at HKS Construction's address. (ECF Nos. 15 and 16). Plaintiff also submitted an affidavit of service stating Defendant Gil R. Lucio was served by delivering a summons to Ms. Eveline, a co-tenant of Defendant Lucio. (ECF 40).
Likewise, under New York law, service on a corporate defendant can be effected by service on the New York Secretary of State. N.Y. C.P.L.R. § 311(a)(1); N.Y. Bus. Corp. Law § 306(b)(1). Plaintiff submitted an affidavit of service stating that Defendant HKS Construction was served via service on the New York Secretary of State. (ECF 10). Similarly, Plaintiff submitted an affidavit of service stating that LK & Gill Enterprise Inc. was served via service on the New York Secretary of State. (ECF 30).
C. Damages
1. FLSA Liability
The FLSA applies to employees who “were employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce.” Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 120 (E.D.N.Y. Mar. 28, 2011). An enterprise is engaged in interstate commerce when its employees handle or sell goods that have moved in interstate commerce, and when its annual gross sales exceeds $500,000. 29 U.S.C. § 203(s)(1)(A)(i)-(ii). Plaintiff has sufficiently alleged that Defendants fit within the FLSA's definition of an are “employer” engaged in interstate commerce. Whether one can be considered an employer looks at the degree of “formal control” or “functional control” over the employee. Barfield v. New York City Health and Hospital Corp., 537 F.3d 132, 143 (2d Cir. 2008). Formal control includes the power to “hire and fire the employees, ” to set work schedules, to determine the “rate and method of payment, ” and to “maintain[] employment records.” Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984). Plaintiff alleges that Defendants had the power to fire and hire him, controlled his terms of employment, and determined his rate of pay. Compl. ¶ 39. Plaintiff further alleges that Defendants' annual gross sales were not less than $500,000, and that Defendants used items in their construction corporation that were produced outside of New York. Compl. ¶¶ 40-42.
2. Statute of Limitations
FLSA actions carry a two-year statute of limitations that may be extended to three years for “willful violation[s].” 29 U.S.C. § 255(a). To show willfulness, Plaintiff bears the burden of showing that the employer “knew or showed reckless disregard” of the violation. Parada v. Banco Industrial De Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (quoting Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995)). The NYLL, in contrast, has a six-year statute of limitations. N.Y.L.L. § 663(3). Because Plaintiff filed his complaint on June 30, 2020, Plaintiff may recover unpaid wages during the start of his employment on April 1, 2017. (ECF 66-14 at 1).
Plaintiff argues that he is entitled to the three-year statute of limitations because Defendants' underpayment was willful from April 1, 2017, to March 2, 2020. (ECF 65 at 5). Although it is unclear whether Defendants' labor law violations demonstrate willfulness, the Court need not undertake such analysis because Plaintiff has also elected to pursue remedies under the more favorable NYLL provisions.
3. Minimum Wage Damages
The NYLL requires that employers pay their employees a minimum wage for each hour worked. N.Y.L.L. § 652-1. Plaintiff's alleged period of underpayment stretched from April 2017 through March 2020, during which New York's minimum wage increased three times. Id. Plaintiff was entitled to a minimum wage of $11 per hour until December 31, 2017; $13 per hour until December 31, 2018; and $15 per hour until his employment ended on March 4, 2020.
Plaintiff alleges that he was paid $11.25 per hour from April 1, 2017, to July 31, 2017, $15 per hour from August 1, 2017, to March 31, 2019, and $17.50 per hour from April 1, 2019, to March 4, 2020. (ECF 66-14 at 1). Because Plaintiff was paid at or above minimum wage during each pay period, he has not properly alleged a minimum wage claim.
4. Overtime Damages
Under New York state law, employers must pay their employees one and one-half times their regular hourly rate for any work performed in excess of a 40-hour week. N.Y.C.C. § 146-1.4. Plaintiff seeks overtime damages for 43 hours per week of work performed in excess of a 40-hour week from April 1, 2017, to December 31, 2019, and 24 hours of work performed in excess of a 40-hour work week from January 1, 2020, to March 4, 2020.(ECF 66-14).
In his Complaint, Plaintiff provided a range of hours he worked per week in excess of 40 hours. Compl. ¶¶ 51-53; see also supra section II.A. Plaintiff's damages chart, however, sets his excess hours worked at 43 hours a week from April 1, 2017, to December 31, 2019, and an excess of 24 hours a week from January 1, 2020, to March 4, 2020. (ECF 66-14 at 1).
Plaintiff correctly applies the 1.5 multiplier to the $11.25 hourly rate to reach a $16.88 hourly overtime rate ($11.25 x 1.5) for the 17 weeks he worked from April 1, 2017, to July 31, 2017. Defendants were legally required to pay Plaintiff $1,175.84each week (($11.25 x 40) + ($16.88 x 43)), but Plaintiff only received $933.75. Plaintiff was therefore underpaid by $242.09each week for 17 weeks of work, for a total of $4,115.53. From August 1, 2017, to March 31, 2019, Plaintiff correctly applies the 1.5 multiplier to the $15.00 hourly rate to reach a $22.50 hourly overtime rate ($15 x 1.5) for the 87 weeks he worked. Defendants paid Plaintiff $1,245 each week when he was owed $1,567.50 (($15 x 40) + ($22.50 x 43)). Plaintiff was underpaid by $322.50 each week for 87 weeks of work, for a total of $28,057.50. From April 1, 2019, to December 21, 2019, Plaintiff correctly applies the 1.5 multiplier to the $17.50 hourly rate ($17.50 x 1.5) to reach an hourly overtime rate of $26.25 for the 39 weeks he worked. Defendants paid Plaintiff $1,452.40 a week when he was owed $1,828.75 (($17.50 x 40) + ($26.25 x 43)). Defendants underpaid Plaintiff $376.25 each week for 39 weeks of work, for a total of $14,673.75. From January 1, 2020, to March 4, 2020, Plaintiff correctly applies the 1.5 multiplier to the $17.50 hourly rate to reach an hourly overtime rate of $26.25 for nine weeks of work. Defendants paid Plaintiff $1,120 each week when he was owed $1,330 (($17.50 x 40) + ($26, 25 x 24)). Defendants underpaid Plaintiff $210 each week for nine weeks, for a total of $1,890. In sum, Plaintiff is entitled to $48,736.78 in overtime damages.
Plaintiff lists the lawful weekly pay from April 1, 2017, to July 31, 2017, as $1,175.63 when the correct value is $1,175.84. (ECF 66-14 at 1).
Plaintiff lists the underpayment per week from April 1, 2017, to July 31, 2017, as $241.88 when the correct value is $242.09. (ECF 66-14 at 1).
5. Liquidated Damages
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.” N.Y. Lab. Law §§ 198(l-a), 663(1); 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 v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016)). Because Defendants defaulted, Plaintiff is entitled to liquidated damages for all of his unpaid overtime wages. Accordingly, Plaintiff is entitled to an additional $48,736.78 in liquidated damages for the overtime violations, resulting in a total of $97,473.56 in damages ($48,736.78 unpaid overtime + $48,736.78 liquidated damages).
Plaintiff lists the total unpaid overtime and liquidated damages at $48,733.13 each; however, Plaintiff's miscalculations for lawful weekly pay and underpayment per week from April 1, 2017, to July 31, 2017, lead to a sum of $48,736.78 in unpaid overtime wages and liquidated damages each.
6. Wage Notice and Statement Damages
NYLL requires that employers provide their employees with wage notices in English and the employee's primary language that include, inter alia, the rate of pay, the basis of calculating the pay, the regularly scheduled pay day, and the employer's name and physical address. N.Y. Lab. Law § 195(1)(a). The NYLL also requires that employers accompany every payment of wages with a wage statement that includes, inter alia, the dates worked covered by that payment, the rate of pay used, the basis of calculating the payment, and the name of the employer. N.Y. Lab. Law § 195(3). Failure to provide a proper wage statement under § 195(1)(a) or wage notice under § 195(3) entitles an employee to recover $50 in damages for each workday that the violation occurs, “but not to exceed a total of five thousand dollars.” N.Y. Lab. Law § 198 (1-b); N.Y. Lab. Law § 198 (1-d). Plaintiff states Defendants never provided a wage notice under § 195(1) or an accurate wage statement under § 195(3) throughout his employment. Compl. ¶¶ 104-109. Because Plaintiff's employment over three years would result in damages over the $5,000 maximum, I recommend that Plaintiff be awarded the maximum of $5,000 each for the wage statement and notice violations for a total of $10,000.
7. Equipment Costs
New York and federal law require employers to compensate employees for the purchase and maintenance of required uniforms if the employees' expenditures for these purposes would reduce their wages to below minimum wage. Cocoletzi v. Fat Sal's Pizza II, Corp., 15-CV-2696 (CM) (DF), 2019 WL 92456, at *7 (S.D.N.Y. Dec. 6, 2018); see 12 N.Y.C.R.R. § 146-1.8. A required uniform is “clothing required to be worn while working at the request of an employer.” N.Y.C.R.R. § 146-3.10(a). However, "'clothing that may be worn as part of an employee's ordinary wardrobe' is not eligible for reimbursement.” Vazquez v. Bkuk 10 Corp., No. 19-CV-3919 (AT) (JLC), 2022 WL 17728033, at*6 (S.D.N.Y. Dec. 16, 2022) (quoting 12 N.Y.C.R.R. §146-3.10). An "ordinary wardrobe” is "ordinary basic street clothing selected by the employee where the employer permits variations in details of dress, ” N.Y.C.R.R. § 146-3.10(b). To qualify for reimbursement for a uniform, Plaintiff "must allege facts sufficient to prove that it was specifically required for [their] work and did not consist of ordinary clothing that could be worn as part of [their] wardrobe.” Vazquez, 2022 WL 17728033, at *7; see also Pinzon v. 168 8th Ave. Food Corp., 20-CV-6156 (PAE) (SN), 2021 WL 4894678, at *5 (S.D.N.Y. July 14, 2021) (plaintiff must include specific details alleging what uniform was comprised of, if it bore company logo, or otherwise was not of a "general type of ordinary basic street clothing”).
Plaintiff failed to provide sufficient information to show that the "several pairs of gloves and a pair of boots” he bought were required for work. (ECF 65 at 4). In fact, Plaintiff offered no information at all regarding what his uniform was comprised of and when he made his purchases, so there is no way for the Court to determine if the items were required for work or if he bought them for other reasons during his time of employment. Vazquez, 2022 WL 17728033, at *7; see also Pinzon, WL 4894678, at *5. Accordingly, Defendants are not liable for any reimbursement for “tools of the trade” expenses.
D. Interest
Plaintiff seeks prejudgment interest under the NYLL for “unpaid overtime wages.” (ECF 65 at 8). Although a plaintiff may not recover both liquidated damages and prejudgment interest under the FLSA, no such limitation applies to liquidated damages and prejudgment interest awarded under the NYLL. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988). Because I recommended that liquidated damages be awarded under the NYLL, prejudgment interest is recoverable here. New York law provides that interest shall be calculated at nine percent per year. N.Y. C.P.L.R. § 5004. Where, as here, the damages were incurred at various times, interest would run from either “the date it was incurred or upon all of the damages from a single reasonable intermediate date.” See N.Y. C.P.L.R. § 5001. Interest only accrues as to compensatory damages and is not based on liquidated damages. Mosso-Salazar v. New Lexington Corp., No. 18-CV-2505 (GBD) (SDA), 2018 WL 6288137, at *5 (S.D.N.Y. Sept. 4, 2018). Because failure to provide proper wage statements and notices is separate from unpaid wages, prejudgment interest does not accrue as to the statutory damages. See Martinez, 2017 WL 5033650, at *24.
Plaintiff proposes a date of August 7, 2016. (ECF 65 at 9). Because Plaintiff states that he worked from approximately April 1, 2017, to March 4, 2020, the proposed date falls outside of Plaintiff's time of employment, and is therefore, inappropriate. Compl. ¶ 10. Rather, October 1, 2018, the midpoint between April 1, 2017, through March 4, 2020, is a reasonable intermediate date. See Conway v. Ichan & Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994) (noting courts have “wide discretion” to determine the intermediate date). Using that date, Plaintiff should be awarded prejudgment interest of nine percent per annum from October 1, 2018, through March 4, 2020. ($48,736.78 x 9% x [1/365]). The total prejudgment interest would thus be $6,581 ($12.01/day x 548 days).
E. Attorneys' Fees and Costs
Plaintiff's prevailing on his NYLL claims entitles him to an attorneys' fees award. N.Y. Lab. Law § 198 (1-a). The Court has “considerable discretion” in determining a reasonable fee. See Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014). To evaluate “reasonableness, ” courts often employ the loadstar approach, calculated by multiplying the reasonable hourly rate with the reasonable number of hours required by the matter. Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011).
The Court can draw upon its own knowledge as to the market rates as well as rely on submissions from the parties. Adorno v. Port Auth., 685 F.Supp.2d 507, 511-12 (S.D.N.Y. Feb. 19, 2010). Relevant factors include the attorneys' experience in the field, what similar attorneys in the district charge, and what other clients pay for similar services. Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 191 (2d Cir. 2008). Plaintiff's counsel billed at the following rates:
1) Michael Faillace (“Mr. Faillace”): $450 per hour;
2) Jarret Bodo (“Mr. Bodo”): $350 per hour;
3) Catalina Sojo (“Ms. Sojo”): $350 per hour; and
4) Paralegal: $100 per hour.ECF 66 at 6-7, Declaration of Jarret Bodo, Esq. in support of Plaintiff's Motion for Default Judgment). Mr. Faillace states he was a managing partner of his firm and has been practicing law since 1983. (ECF 66 at 6). Mr. Bodo, who graduated from law school at Hofstra University in 2020, and admitted to the bar in 2021, is listed as an associate. Id. Ms. Sojo, also an associate, received an LL.M. from Cornell University School of Law in 2019 and joined Mr. Faillace's firm in June 2020. (ECF 66 at 7). In contrast, no identifying or background information is provided for the paralegal, identified only by the initials “PL” and "PU.” (ECF 66 at 7).
Courts have routinely found that the hourly rates charged by Mr. Faillace and his firm are excessive. See Montes v. 11 Hanover Group LLC, No. 17-CV-9376 (SDA), 2019 WL 4392516, at *2 (S.D.N.Y. Sept. 12, 2019) (finding Mr. Faillace's $450 hourly rate "unreasonable”); Gervacio v. AJR Laundry Services Inc., No. 17-CV-9632 (AJN), 2019 WL 330631, at *2 (S.D.N.Y. Jan. 25, 2019) (citing previous cases to find Mr. Faillace's $450 hourly rate "unreasonably high); Hernandez v. JRPAC Inc., No. 14-CV-4176 (PAE), 2017 WL 66325, at *3 (S.D.N.Y. Jan. 6, 2017) (noting FLSA partners typically receive $400 per hour, senior associates $300 per hour, and junior associates $225 per hour). Mr. Faillace and his firm's hourly rates are similarly excessive in this case, particularly given the lack of complexity in a default case and the lack of evidence of the hourly rate typically charged by Mr. Faillace's firm. See Galeana v. Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 324 (S.D.N.Y. Apr. 4, 2014) (accounting for the "absence of novel or complex issues arising from the claims[, ]” and plaintiff's failure “to provide support for the hourly rate sought with information about what their attorneys normally charge” when reducing the hourly rate).
Mr. Bodo and Ms. Sojo's $350 hourly billing rate is unreasonably high for junior associates with limited experience. Courts consider an attorney's experience working in wage-and-hour cases. See Hernandez, 2017 WL 66325, at *3; see Gonzalez v. Scalinatella, Inc., 112 F.Supp.3d 5, 28 (S.D.N.Y. June 12, 2015) (“Generally, rates in excess of $225.00 per hour are reserved for FLSA litigators with more than three years' experience.”). Here, Mr. Bodo and Ms. Sojo's limited experience as practicing lawyers - both recent law school graduates - and their lack of any prior experience as practicing FLSA litigators, warrant reducing their hourly rates to $225 per hour. Accordingly, appropriate hourly rates are $400 for Mr. Faillace, and $225 for Mr. Bodo and Ms. Sojo.
Because Plaintiff's counsel failed to provide any information regarding the paralegal, such as their name or experience level, there is insufficient evidence for the Court to determine the proper hourly rate to award them. Accordingly, I recommend awarding no fees for the billed paralegal work. See Penta v. Costco Wholesale Corp., No. 14-CV-3587 (DLI) (VMS), 2016 WL 1171612, at *6 n.4 (E.D.N.Y. Mar. 25, 2016) (awarding no fees for an “unidentified paralegal”); Lizondro-Garcia v. Kefi LLC, No. 12-CV-1906 (HBP), 2015 WL 4006896, at *8 (S.D.N.Y. July 1, 2015) (declining to award fees for paralegals where counsel failed to provide their names and qualifications); Executive Risk Indem. Inc. v. FieldBridge Assoc. LLC, No. 13-CV-4354 (KNF), 2015 WL 1267308, at *5 (S.D.N.Y. Mar. 18, 2015) (declining to award fees for paralegals who “are never mentioned by name” and “no information is provided about them”).
In assessing the reasonableness of the number of hours billed, the Court examines whether a “reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Where the amount billed is excessive, the Court “should reduce the stated hours accordingly.” Cocoletzi, 2019 WL 92456, at *11; see McGlone v. Contract Callers Inc., 146 F.Supp.3d 582, 586-87 (S.D.N.Y. Nov. 29, 2015) (finding work that could be done as a paralegal or junior associate, such as “preparation of digests and trial exhibitions” and “vagueness, inconsistencies, and other deficiencies in the billing records” warranted reducing attorney's fees by 25 percent). Plaintiff's counsel “bears the burden of establishing entitlement to an award and documenting the appropriate hours expended.” Cruz v. Local Union No. 3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994). Mr. Faillace's billing records (see ECF 66-15) repeatedly assign exorbitant hourly rates for work a paralegal or junior associate could have done. For instance, in an entry dated October 5, 2020, Mr. Faillace “reviewed court order reporting the occurrence of the conference and setting date for the pre trial phone conference; directed staff to update case chart; filed order in the phone folder for future reference.” (ECF 66-15 at 2). Accordingly, after thoroughly reviewing Mr. Faillace's timesheets, the requested fee amount is hereby reduced by 25 percent.
Using the adjusted rates, Mr. Faillace's billed amount should be reduced to $1,920 (4.8 hours x $400 hourly rate), Mr. Bodo's billed amount should be reduced to $675 (3 hours x $225 hourly rate), and Ms. Sojo's billed amount should be reduced to $1,688 (7.5 hours x $225 hourly rate). The total attorneys' fee award should be reduced to $3,212.25 ($1,920 + $675 + $1,688 = $4,283 - 25%). As explained above, I recommend not awarding fees for the unidentified paralegals.
Plaintiff also seeks recovery of $749.98 for filing and service costs. (ECF 66-15). “Where an attorney fails to provide suitable documentation to substantiate the cost incurred, a court may decline to award costs.” See Zimmerman v. Portfolio Recovery Assoc. LLC, No. 09-CV-4602 (PGG), 2013 WL 6508813, at *13 (S.D.N.Y. Dec. 12, 2013). Because Plaintiff declined to provide any evidence of costs, the Court will take judicial notice of the $400 filing fee, as reflected on the docket, but will deny additional costs. See Mango v. BuzzFeed, Inc., 356 F.Supp.3d 368, 378 (S.D.N.Y. Jan. 17, 2019). Accordingly, the total attorneys' fees and costs award totals $3,612.25 ($3,212.25 + $400).
IV. CONCLUSION
For the foregoing reasons, I recommend that Defendants be held liable to Plaintiff for the following:
1) $107,473.56 in damages ($48,736.78 overtime damages + $48,736.78 liquidated damages + $10,000 notice damages);
2) $6,581 in pre-judgment interest; and
3) $3,612.25 in attorneys' fees and costs.
V. OBJECTIONS
In accordance with 28 U.S.C. §636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable John G. Koeltl, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Koeltl.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).