Opinion
14-CV-150 (JBW)
08-21-2015
MUHAMMED CHOWDHURY, Plaintiff, v. HAMZA EXPRESS FOOD CORP., et al., Defendants.
REPORT AND RECOMMENDATION ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE :
On February 26, 2015, this Court recommended that the Honorable Jack B. Weinstein strike the answer of the remaining defendants in this case, Hamza Express Food Corp. ("Hamza Express") and Almontazer Fadel ("Fadel") (collectively, "defendants"), on account of their persistent failure to comply with the discovery orders of the undersigned magistrate judge. See generally Report and Recommendation (Feb. 26, 2015) ("R&R"), Electronic Case Filing Docket Entry ("DE") #61. Defendants objected and, after hearing argument on the objections, Judge Weinstein adopted this Court's recommendation in full, entered default judgment against defendants, and referred the matter to this Court to conduct an inquest on damages. See Chowdhury v. Hamza Express Food Corp., — F.R.D. —, 2015 WL 3622296, at *1 (E.D.N.Y. June 9, 2015); Transcript of Hearing (June 5, 2015) ("6/5/15 Tr.") at 28, DE #72.
On July 14, 2015, this Court held an evidentiary hearing on damages; the sole witness at that hearing was plaintiff Chowdhury. See Minute Entry (July 14, 2015) ("7/14/15 Minute Entry"), DE #73. Based on the evidence adduced at that hearing, and for the reasons explained herein, the Court recommends that the District Court award damages against Hamza Express and Fadel, jointly and severally, in the amount of $83,806, representing $42,997.50 in compensatory and liquidated damages and $40,808.50 in attorney's fees.
BACKGROUND
Plaintiff Muhammed Chowdhury ("plaintiff") filed this lawsuit on January 8, 2014, asserting federal and state law claims arising out of plaintiff's employment with defendants as a "deli man" and his eventual termination from that position. See generally Compl. In particular, plaintiff alleged that defendants failed to pay him proper overtime wages under the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"), see, e.g., Compl. ¶¶ 9, 13-18, as well as spread-of-hours compensation under the NYLL, see id. ¶ 17. In addition, plaintiff claimed that defendants "consciously, willfully, intentionally and maliciously" terminated him in retaliation for his complaints concerning an on-the-job injury and defendants' failure to properly pay plaintiff overtime. See id. ¶ 21; see also id. ¶ 22.
Plaintiff originally brought this action against three defendants — Hamza Express, Fadel and Noaman Nashall ("Nashall"). See generally Complaint (Jan. 8, 2014) ("Compl."), DE #1. On August 22, 2014, plaintiff voluntarily dismissed defendant Nashall from this action. See Notice of Voluntary Dismissal (Aug. 22, 2014), DE #38. In connection with the procedural history of the case prior to August 22, 2014, references in this opinion to "defendants" include Nashall.
As detailed in this Court's February 26th Report and Recommendation, following the filing of the Complaint, defendants repeatedly engaged in obfuscation and unnecessary delay and willfully violated discovery orders. See R&R at 2-9. Those events led plaintiff to move to strike defendants' answer pursuant to Rule 37 of the Federal Rules of Civil Procedure ("FRCP"). See R&R at 1, 9. On February 26, 2015, this Court recommended that defendants' answer be stricken and default judgments entered. See id. at 19-20. Over defendants' objections, Judge Weinstein adopted the R&R in full and referred the matter to the undersigned magistrate for an inquest on damages. See Chowdhury, 2015 WL 3622296, at *1; 6/5/15 Tr. at 28.
On July 14, 2015, this Court held an evidentiary hearing on damages. See 7/14/15 Minute Entry. At the hearing, plaintiff testified as to his hours and pay, which, as explained below, see infra pp. 7-9, contradicted certain allegations contained in his Complaint. See generally Transcript of Hearing (July 14, 2015) ("7/14/15 Tr."), DE #74.
In scheduling the hearing, the Court directed the parties "to exchange pre-marked exhibits and to submit hard copies" thereof to Chambers prior to the proceeding. See Electronic Order (June 8, 2015). The Court also required both sides to "serve and file exhibit lists and lists of witnesses and summaries of the anticipated testimony of each witness," as well as provide any objections to the proffered evidence. See id.
Plaintiff submitted hard copies of his exhibits and provided the requisite exhibit and witness summaries. See Order (June 25, 2015), DE #70. Defendants did not file or serve any exhibits or witness summaries, nor did they object to any of plaintiff's evidence. See id. Therefore, the Court found that defendants had "waived their ability to call witnesses or offer exhibits at the" inquest, as well as to object to plaintiff's exhibits. See id.
DISCUSSION
I. Applicable Legal Principles
A. Default Judgment
With defendants' answer stricken, they are deemed to be in default. See, e.g., Mateo v. Universal Language Corp., No. 13-CV-2495 (NGG) (JO), 2014 WL 4983697, at *2 (E.D.N.Y. Oct. 6, 2014) (as the district court ordered that defendant's answer be stricken, plaintiffs were "therefore free to seek a certificate of default and default judgment"). "A defendant's default is an admission of all well-pleaded factual allegations in the complaint except those relating to damages." Lyons P'ship, L.P. v. D & L Amusement & Entm't, Inc., 702 F.Supp.2d 104, 111 (E.D.N.Y. 2010) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)); see also Fed. R. Civ. P. 8(b)(6). Nevertheless, a fact is not "'well-pleaded' if it is inconsistent with other allegations of the complaint[,]" In re Indus. Diamonds Antitrust Litig., 119 F. Supp.2d 418, 420 (S.D.N.Y. 2000), or is "contrary to uncontroverted material in the file of the case," Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363 (1973); accord, Chuchuca v. Creative Customs Cabinets Inc., No. 13-CV-2506 (RLM), 2014 WL 6674583, at *5 (E.D.N.Y. Nov. 25, 2014); see id. at *9, *12, *13.
Moreover, because the extent of the damages pleaded by a plaintiff is not deemed to be established by the default, the Court must conduct "an inquiry in order to ascertain the amount of damages with reasonable certainty." Credit Lyonnais Secs. (USA) Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). This inquiry may be accomplished by evaluating and analyzing affidavits and other documentary evidence submitted by the plaintiff in regards to the level of damages sought, see Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989), and/or by conducting a hearing to ascertain the level of damages to be awarded against a defaulting defendant, see Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991).
B. The Fair Labor Standards Act
With respect to FLSA coverage, an employee may bring a FLSA claim against his employer where the employee was "engaged in commerce or in the production of goods for commerce," or where the employer is "an enterprise engaged in commerce or in the production of goods for commerce," 29 U.S.C. § 207(a)(1), with an annual gross volume of sales of at least $500,000, id. § 203(s)(1)(A)(ii); see Compl. ¶ 11 (Hamza Express engaged in interstate commerce and "generat[ed] yearly revenues of $500,000 or more").
As for individual liability, "a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation," and may be held jointly and severally liable for the FLSA violations. See Moon v. Kwon, 248 F.Supp.2d 201, 236-37 (S.D.N.Y. 2002) (Lynch, J.) (internal quotation and citation omitted); accord, Chuchuca, 2014 WL 6674583, at *7; see also Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (in considering FLSA liability of an individual, courts consider whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records); Compl. ¶¶ 3, 8-12 (alleging that Fadel was an officer of the company and that "defendants," including Fadel, controlled plaintiff's hours and pay and had the authority to terminate him).
Among other requirements, the FLSA mandates that "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess [of 40 hours] at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1); Compl. ¶¶ 13-15. The FLSA contains a two-year statute of limitations for non-willful violations, and, for willful violations, a three-year limitations period from the date that the claim accrued. See 29 U.S.C. § 255(a). Willfulness requires a showing that the employer either knowingly violated its obligations under the FLSA or showed reckless disregard for whether its conduct was prohibited by that statute. See Gunawan v. Sake Sushi Rest., 897 F.Supp.2d 76, 87 (E.D.N.Y. 2012). Where a complaint alleges willfulness, and the employer has defaulted, the Court is entitled to find that willfulness has been established. See id.; Hernandez v. P.K.L. Corp., No. 12-CV-2276 (NG)(RML), 2013 WL 5129815, at *2 (E.D.N.Y. Sept. 12, 2013).
In addition to imposing overtime compensation requirements, the FLSA provides that is is "unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under [the FLSA]." See 29 U.S.C. § 215(a)(3); see also Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010). Such a complaint for purposes of the FLSA retaliation provision may be written or oral and made directly to the employer. See Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S.Ct. 1325, 1335 (2011); Greathouse v. JHS Sec. Inc., 784 F.3d 105, 115-16 (2d Cir. 2015); Compl. ¶¶ 21-22.
C. New York Labor Law
The NYLL is quite similar to the FLSA in that it mandates an overtime compensation scheme. See N.Y. Lab. Law § 650 et seq.; Gunawan, 897 F.Supp.2d at 84 ("The NYLL mirrors the FLSA in most but not all respects."). One area in which the NYLL differs from the FLSA is the NYLL's requirement that, in certain circumstances described hereafter, see infra pp. 12-13, an employer must pay employees a "spread-of-hours" premium that is equal to one hour of pay at the statutory minimum wage for each day an employee works in excess of ten hours. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4; see also id. §§ 142-2.1 - 2.5 (minimum hourly wage, overtime rate, and allowances). Another distinction is the limitations period, which, under the NYLL, is six years. See N.Y. Lab. Law §§ 198(3), 663(3).
III. Application of Legal Principles to Plaintiff's Request for Damages
Because of defendants' default, the Court must accept as true the well-pleaded, uncontroverted allegations contained within plaintiff's complaint as to defendants' liability. See supra pp. 3-4. It need not, however, give the same deference to plaintiff's allegations regarding damages, especially in the face of inconsistent evidence and allegations. See id. at 4. Instead, the Court must perform an inquiry to determine the extent of damages to a "reasonable certainty." See Credit Lyonnais Secs., 183 F.3d at 155.
A. Plaintiff's Recollection of Hours Worked and Defendants' Failure to Produce Records
Under both the FLSA and NYLL, an employer is required to maintain "records of the wages, hours, and persons employed by him." Rodriguez v. Queens Convenience Deli Corp., No. 09-cv-1089 (KAM) (SMG), 2011 WL 4962397, at *2 (E.D.N.Y. Oct. 18, 2011) (citing Wicaksono v. XYZ 48 Corp., No. 10-cv-3635 (LAK) (JCF), 2011 WL 2022644, at *2 (S.D.N.Y. May 2, 2011), adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011)). Where, as here, defendants failed to produce the requisite records, "a plaintiff may meet his or her burden of establishing how many hours he or she worked 'by relying solely on his or her recollection.'" Rodriguez, 2011 WL 4962397, at *2 (quoting Rivera v. Ndola Pharm. Corp., 497 F.Supp.2d 381, 388 (E.D.N.Y. 2007) (citing Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 335 (S.D.N.Y. 2005)); see also Grochowski v. Phoenix Constr., 318 F.3d 80, 87-88 (2d Cir. 2003).
As defendants in this case failed to produce relevant records, the Court may rely on plaintiff's recollection of hours and pay in conducting its inquest. Nevertheless, the Court must ensure that plaintiff's approximations and estimates are reasonable and appropriate. See Jemine v. Dennis, 901 F.Supp.2d 365, 376-79 (E.D.N.Y. 2012).
1. Hours Worked Per Week
In his Complaint, plaintiff alleges that he worked for defendants approximately 70 to 75 hours per week, six days per week, from September 13, 2011 to December 21, 2013. See Compl. ¶ 9. This allegation is largely consistent with plaintiff's own estimation at the evidentiary hearing. See 7/14/15 Tr. at 14 (testifying that plaintiff worked between 70 and 80 hours per week). One slight variation is that plaintiff testified that he did not begin working more than 40 hours each week until one and one-half weeks after his employment commenced. See id. at 13, 16. Therefore, the Court concludes that it is appropriate to assume, for purposes of calculating damages, that plaintiff worked an average of 75 hours per week, starting from September 26, 2011. See, e.g., Jaramillo v. Banana King Rest. Corp., 12-CV-5649 (NGG) (RML), 2014 WL 2993450, at *4 (E.D.N.Y. July 2, 2014) (adopting magistrate judges' recommendation that, in the absence of defendants' records, unpaid wages be calculated using average number of hours per week); Jemine, 901 F.Supp.2d at 376-77 (concluding that, in the absence of available time records, it was reasonable to rely on the average number of hours plaintiff worked).
The Complaint is internally inconsistent with respect to the number of days worked per week in that the pleading alleges elsewhere that plaintiff worked "almost constantly seven days a week." See Compl. ¶ 10.
2. Hourly Rate and Weekly Salary
As an initial matter, inconsistences concerning plaintiff's hourly rate and weekly salary abound between the allegations in plaintiff's Complaint and his testimony at the evidentiary hearing. The pleading alleges that his hourly rate was $12.50 per hour, which was calculated based on the assumption that plaintiff received $500 per week for 40 hours of work. See Compl. ¶ 15. The Complaint presumes that plaintiff received payment for only the first 40 hours of his 70-to-75-hour work week. See id.
In advance of the hearing, plaintiff's counsel submitted a memorandum of law that incorporated the same figures contained in the Complaint. See Plaintiff's Memorandum of Law for Inquest of Damages (July 7, 2015) ("Pl. Mem."), DE #71. According to plaintiff's testimony at the inquest, however, plaintiff received $10.50 per hour for all hours worked, not just for the first 40 hours. See 7/14/15 Tr. at 16. Moreover, plaintiff testified that his wages changed from week to week, depending on the number of hours worked, and sometimes reached as high as $850 per week. See id. at 23-24. This testimony stands in stark contrast to the Complaint's allegation of a consistent wage of $500 per week. See Compl. ¶ 15.
Although at one point plaintiff characterized his hourly rate as $12.50, see 7/14/15 Tr. at 15, he repeatedly testified throughout the hearing that his hourly rate was in fact $10.50, see id. at 12, 16, 23, 27.
When confronted with these inconsistencies at the hearing, plaintiff's counsel urged the Court to overlook the discrepancies between the testimony and the Complaint so as "not to give that benefit to the employer," who had failed to produce relevant time and pay records. See 7/14/15 Tr. at 40. The position advocated by plaintiff cannot be squared with the Court's role in assuring that plaintiff has proven his damages to a "reasonable certainty." See Llolla v. Karen Gardens Apartment Corp., No. 12-CV-1356 (MKB), 2014 WL 1310311, at *7 (E.D.N.Y. Mar. 10, 2014) (although court could rely on plaintiff's recollection to ascertain FLSA damages, "to the extent [plaintiff's] claims [we]re internally inconsistent or belie[d] common sense," plaintiff failed to prove his damages by the requisite "reasonable certainty," and the court "resolve[d] such discrepancies in the defendants' favor"), adopted as modified on other grounds, 2014 WL 1311773 (E.D.N.Y. Mar. 28, 2014); Solis v. Tally Young Cosmetics, LLC, 09-CV-4804 (SJ) (JO), 2011 WL 1240341, at *10-11 (E.D.N.Y. Mar. 4, 2011) (declining to adopt Secretary of Labor's damages calculations that were inconsistent with employee's own recollection), adopted, 2011 WL 1240108 (E.D.N.Y. Mar. 30, 2011). Moreover, it is well settled that, when a defendant has defaulted, allegations in the complaint relating to damages are not assumed to be true. See Lyons P'ship, 702 F.Supp.2d at 111; see also Fed. R. Civ. P. 8(b)(6).
For these reasons, the Court credits the testimony of plaintiff, as opposed to the inflated allegations contained in the pleading drafted by counsel, and will assess damages based on the assumption that plaintiff worked 75 hours per week and was paid $10.50 for each of those hours, with no overtime premium. See Chuchuca, 2014 WL 6674583, at *9 (citing Trans World Airlines, 449 F.2d at 63).
B. Applicable FLSA Statute of Limitation
As noted above, the FLSA contains a two-year statute of limitations for non-willful violations, and, for willful violations, a three-year limitations period from the date the claim accrued. See 29 U.S.C. § 255(a). In the context of default judgments, courts consider whether the complaint contains any allegations that the defendant-employers acted willfully. See, e.g., Easterly v. Tri-Star Transport Corp., No. 11 CV 6365(VB), 2015 WL 337565, at *6 (S.D.N.Y. Jan. 23, 2015) ("Here, as Plaintiff alleges that Defendant committed FLSA violations willfully, . . . the three-year federal period applies.") (collecting cases). In this case, the Complaint does not allege that the FLSA overtime violations were willful or made knowingly. See generally Compl. While plaintiff does allege that his wrongful termination was done willfully and intentionally, see id. ¶ 21, there is no comparable language used with respect to the overtime violations. Therefore, the Court will apply the two-year statute of limitations, with plaintiff's FLSA claims running from January 8, 2012, until January 8, 2014. His NYLL claims run from September 26, 2011.
C. Overtime
Defendants are liable to plaintiff for unpaid overtime wages under the FLSA and the NYLL. See 29 U.S.C. § 207(a)(1) (mandating that an employee who works in excess of forty hours per week must be paid for the excess hours at a premium overtime rate); N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (same). This overtime rate adds a 50-percent premium to the employee's regular hourly rate. See 29 C.F.R. § 778.110(a) ("For overtime hours of work the employee must be paid, in addition to the straight time hourly earnings, a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of 40 in the week."); N.Y. Comp. Codes R. & Regs. tit. 12, § 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 . . . .").
Plaintiff cannot and does not allege that defendants violated the minimum wage requirements of the FLSA or NYLL. See generally Compl.
Plaintiff testified that his regular hourly rate of pay was $10.50 per hour. See 7/14/15 Tr. at 12, 16, 23, 27. Based on that testimony, plaintiff should have been paid $15.75 for each hour over forty per week, rather than $10.50. Thus, for each week involving work in excess of 40 hours, defendants owe plaintiff the overtime premium ($5.25) for each of the thirty-five hours of overtime work, for a total unpaid premium of $183.75 per week. Therefore, under the FLSA, plaintiff is entitled to $183.75 multiplied by the number of applicable weeks during the FLSA period (102), for a total deficiency of $18,742.50. In addition, pursuant to the NYLL, defendants owe plaintiff $2,756.25 in overtime, representing 183.75 multiplied by the fifteen weeks of employment that predated the FLSA limitations period.
In order to avoid a double recovery of damages, courts generally do not award damages under both federal and state law for the same hours worked. See Guaman v. Krill Contracting Inc., No. 14-CV-4242 (FB)(RER), 2015 WL 3620364, at *5 (E.D.N.Y. June 9, 2015).
D. Spread of Hours
With respect to spread of hours, plaintiff's allegations suggest, but do not specifically state, that plaintiff worked more than ten hours per day, see Compl. ¶ 9, and that he did not receive spread-of-hours compensation for any work in excess of ten hours per day, see id. However, because plaintiff's allegations do not support a minimum-wage claim, this Court concludes that he is not entitled to spread-of-hours compensation.
The relevant regulation of the New York State Department of Labor ("NYSDOL") provides, in pertinent part, that, "in addition to the minimum wage," if an employee works in excess of ten hours in a day, "[a]n employee shall receive one hour's pay at the basic minimum hourly wage rate." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4. In accordance with the clear weight of authority in this Circuit, employees who earn in excess of the minimum wage are not entitled to spread-of-hours compensation. See, e.g., Carrasco-Flores v. Comprehensive Health Care & Rehab. Srvs., LLC, No. 12-CV-5737 (ILG) (JMA), 2014 WL 4954629, at *5 (E.D.N.Y. Oct. 2, 2014) (based on the plain language of the spread-of-hours statute, only employees making minimum wage are entitled to spread-of-hours payment); Guadalupe v. Tri-State Emp't Mgmt. & Consulting, Inc., No. 10-CV-3840 (NG) (CLP), 2013 WL 4547242, at *12-13 (E.D.N.Y. Aug. 28, 2013) (holding that, in deference to NYSDOL opinion letters, employees making in excess of minimum wage are not entitled to spread-of-hours payments); Ellis v. Common Wealth Worldwide Chauffeured Transp. of N.Y., LLC, No. 10-CV-1741 (DLI) (JO), 2012 WL 1004848, at *7-8 (E.D.N.Y. Mar. 23, 2012); Sosnowy v. A. Perri Farms, Inc., 764 F.Supp.2d 457, 473-74 (E.D.N.Y. 2011); but see Doo Nam Yang, 427 F.Supp.2d at 339-40.
As explained above, plaintiff testified that, during the relevant time period, he earned $10.50 per hour for each hour worked -- a rate significantly higher than the applicable federal and state minimum hourly wage. Therefore, as this Court concurs with the majority view within this Circuit, plaintiff is not entitled to recover spread-of-hours compensation.
E. Retaliation
In connection with his retaliation claim under the FLSA, plaintiff requests that the Court award him an unspecified amount of damages and "assess a reasonable punitive damage award[.]" See Pl. Mem. at 11; see also id. at 14 (seeking an amount of "Retaliatory discharge" and "punitive" damages "[t]o be determined by the Court").
In his Complaint, plaintiff asserts two claims related to the termination of his employment - "wrongful discharge" and "retaliatory discharge" - without citing relevant law or differentiating between the two. See Compl. ¶¶ 19-23. In his memorandum of law, plaintiff seeks damages only as to the "retaliatory discharge" claim. See Pl. Mem. at 7-11. In doing so, plaintiff cites the anti-retaliation provisions of the FLSA, the NYLL, the New York worker's compensation statute and the Family Medical Leave Act ("FMLA"). See id.
As an initial matter, plaintiff has not pled any cause of action for retaliation under the FMLA. See Fed. R. Civ. P. 54(c) ("A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings."). Moreover, with respect to a retaliation claim under the New York worker's compensation statute, it is well settled that there is no cause of action for such claims in federal district courts. See Jones v. Gov't Employees Ins. Co., No. CV 04-3492 (WDW), 2006 WL 1229136, at *4 (E.D.N.Y. May 8, 2006) (citing Williams v. Brooklyn Union Gas Co., 819 F.Supp. 214, 231 (E.D.N.Y. 1993)).
This leaves the retaliation provisions of the FLSA and the NYLL. As the standards applicable to those two statutes are nearly identical, see Perez v. Jasper Trading, Inc., No. 05 CV 1725(ILG)(VVP), 2007 WL 4441062, at *7 (E.D.N.Y. Dec. 17, 2007), and a plaintiff is not entitled to a double recovery, see supra note 7, the Court focuses herein on the standards governing the FLSA retaliation claim.
An employer who violates the anti-retaliation provision of the FLSA "shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the provision], including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages." See 29 U.S.C. § 216(b). Although the FLSA does not specifically authorize punitive damages, several courts have opined that plaintiffs may recover punitive damages based on violation of the anti-retaliation provision. See generally Azkour v. Little Rest Twelve, No. 10-CV-4132 (RJS), 2015 WL 631377, at *9-10 (S.D.N.Y. Feb. 12, 2015) (finding that, although punitive damages were available to a plaintiff for retaliatory termination, plaintiff failed to sustain his burden); Solis v. SCA Rest. Corp., 938 F.Supp.2d 380, 404-05 (E.D.N.Y. Apr. 5, 2013) (court declines, in its discretion, to award punitive damages).
This Court concludes that plaintiff has failed to sufficiently establish his entitlement to any damages under his FLSA retaliation claim. As an initial matter, plaintiff's testimony at the hearing concerning his termination related exclusively to his on-the-job injury and anticipated worker's compensation claim — not to any wage-or-hour violations or complaints thereof. See 7/14/15 Tr. at 21; see also Compl. ¶ 7 (". . . when plaintiff was terminated in retaliation for his impending worker's compensation claim stemming from an injury"). Thus, the Court has serious doubts as to whether any damages stemming from his termination would be causally related to the FLSA violations alleged. Cf. Lore v. City of Syracuse, 670 F.3d 127, 159 (2d Cir. 2012) (no error where court in section 1983 action instructed jury that the damages were appropriate for harm plaintiff suffered as a "direct result" of defendants' alleged acts of retaliation). Furthermore, while plaintiff briefly alluded once to having been unemployed in the months following his termination, see 7/14/15 Tr. at 21, plaintiff's counsel failed to explore the issue at the hearing, nor did plaintiff testify as to what efforts, if any, he made to mitigate his damages or whether he suffered emotional distress, see generally 7/14/15 Tr.; see also E.E.O.C. v. White & Son Enterps., 881 F.2d 1006, 1013 (11th Cir. 1989) (holding that interim earnings should be deducted from any claim of "back pay" under the FLSA anti-retaliation provision). In short, there is simply no information in the record from which the Court could conclude with "reasonable certainty" what damages plaintiff suffered as a result of his termination and there surely is no basis for finding that defendants acted "with malice or with reckless indifference to [plaintiff's] federally protected [FLSA] rights." Azkour, 2015 WL 631377, at *10 (internal quotation and citation omitted).
Plaintiff's memorandum of law likewise focuses on retaliation for his having asserted his worker's compensation rights, with wage-and-hour seemingly tacked on as an afterthought. See Pl. Mem. at 8 (arguing that a causal nexus between "his efforts to obtain workers' compensation benefits and the employer's allegedly retaliatory conduct" was established where "defendants terminated him when he specifically stated that he would be seeking worker's compensation benefits for his meat-slicer injury, as he also mentioned wages.") (emphasis added).
Consequently, the Court recommends awarding no damages on plaintiff's anti-retaliation claim under the FLSA or NYLL.
G. Total Unpaid Compensation Amounts
In sum, the Court recommends that plaintiff be awarded $21,498.75 in unpaid overtime wages, representing $18,742.50 under the FLSA and $2,756.25 pursuant to the NYLL.
IV. Liquidated Damages
Plaintiff also seeks liquidated damages under both the FLSA and NYLL. See Pl. Mem. at 4-7.
An employer who violates the FLSA's overtime compensation requirements is liable for "an additional equal amount as liquidated damages" unless the employer demonstrates to the Court that it acted in good faith and had reasonable grounds for believing that its actions were lawful. See 29 U.S.C. §§ 216(b), 260. Defendants adduced no evidence of good faith at the hearing or in any written submissions to the Court. As the record is devoid of evidence of defendants' good faith or reasonable belief, an award of liquidated damages under the FLSA is appropriate. See Gayle v. Harry's Nurses Registry, Inc., No. 07-CV-4672 (NGG)(MDG), 2013 WL 5502950, at *4 (E.D.N.Y. Sept. 30, 2013) (adopting report and recommendation to deny defendants' motion to reconsider prior summary judgment award of liquidated damages on FLSA claim, where defendants presented no evidence "to contest the presumptive finding of a lack of good faith").
The NYLL also authorizes an award of liquidated damages, calculated at 100 percent of unpaid wages, to a prevailing plaintiff "unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law . . . ." N.Y. Lab. Law § 663(1). District courts within this Circuit (and indeed within this District) are divided as to whether employees may obtain cumulative awards of liquidated damages under both the FLSA and NYLL. Some decisions issued out of this District have awarded both types of damages for the same violations, reasoning that, because state case law characterizes the state liquidated damages as a "penalty," whereas federal case law characterizes FLSA liquidated damages as compensatory, the two awards serve different purposes. See Hernandez, 2013 WL 5129815, at *1, *5-6 (adopting unopposed report and recommendation awarding cumulative liquidated damages); Hernandez v. Punto y Coma Corp., No. 10-CV-3149 (NGG)(RML), 2013 WL 4875074, at *1, *8 (E.D.N.Y. Sept. 11, 2013) (same); see also Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997) ("Liquidated damages under the FLSA are considered compensatory rather than punitive in nature."). Other cases have found that distinction unpersuasive, in light of the similar predicates for an award of liquidated damages under each statute. See Gortat v. Capala Bros., 949 F.Supp.2d 374, 381 (E.D.N.Y. 2013) (Glasser, J., collecting cases) ("I find the distinction between compensatory and punitive for characterizing liquidated damages under the FLSA and NYLL as semantic, exalting form over substance, and also not persuasive."); see also Peralta v. M &O Iron Works, Inc., 12-CV-3179 (ARR), 2014 WL 988835, at *10-11 (E.D.N.Y. Mar. 12, 2014); Guadalupe, 2013 WL 4547242, at *14-15.
Plaintiff incorrectly states that the NYLL provides for liquidated damages of 25 percent of the amount of unpaid wages. See Pl. Mem. at 6. The NYLL was amended as of April 2011 to provide (prospectively) for liquidated damages equal to 100 percent of unpaid wages. See N.Y. Lab. Law § 663(1).
As explained in this Court's Report and Recommendation in Peralta, 2014 WL 988835, at *11, the undersigned magistrate judge finds the latter view more persuasive: Both forms of damages seek to deter wage-and-hour violations in a manner calculated to compensate the party harmed. See Chun Jie Yin v. Kim, No. 07-CV-1236 (DLI), 2008 WL 906736, at *7 (E.D.N.Y. Apr. 1, 2008). Having concluded that there is no meaningful distinction between the two forms of damages, see Peralta, 2014 WL 988835, at *11, the Court recommends awarding liquidated damages under FLSA alone with respect to plaintiff's overtime damages for the period starting with January 8, 2012. For that period, plaintiff is owed unpaid FLSA overtime compensation totaling $18,742.50. See supra p. 12. Therefore, applying 100 percent liquidated damages, plaintiff is entitled to a total of $18,742.50 in FLSA liquidated damages.
Indeed, since the NYLL was amended in 2011 to provide for 100 percent liquidated damages, "[t]o the extent that the federal and state statutes now provide for essentially identical remedies with respect to liquidated damages, it is harder to argue that they are designed to compensate a plaintiff for disparate harms" under the amended state statute. Gunawan, 897 F.Supp.2d at 91 n.11; see Gortat, 949 F.Supp.2d at 381 n.3 (the recent amendments to the NYLL "bespeak[] an acknowledgment that the compensatory/punitive dichotomy is a semantic one").
For the period of employment predating January 8, 2012 -- i.e., from September 26, 2011 through January 7, 2012 -- plaintiff is entitled to $2,756.25 in NYLL liquidated damages, an amount equal to 100 percent of the overtime premium deficiency under the NYLL.
In arguing for liquidated damages, plaintiff briefly alludes to prejudgment interest. See Pl. Mem. at 6 ("Liquidated damages serve as a functional equivalent of prejudgment interest payment."); id. at 6-7 ("Plaintiff's prejudgment interest on his overtime, spread of hours, and prevailing wages claims using the midpoint of his tenure.") (sic). In setting forth his requested category of damages, however, plaintiff makes no mention of prejudgment interest. See id. at 14. Nor does the Complaint specifically allude to prejudgment interest. See generally Compl.
VI. Attorney's Fees and Costs
A. Applicable Legal Standard
Under both the FLSA and NYLL, a prevailing plaintiff is entitled to an award of "reasonable" attorney's fees and costs, see 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1), and plaintiff's counsel has requested such, see generally Plaintiff's Memorandum of Law in Support of Fees and Costs (July 22, 2015) ("Pl. Fee Mem."), DE# 75-1. In considering an application for attorney's fees and costs, the Court must first determine the presumptively reasonable fee. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183-84 (2d Cir. 2008). This presumptively reasonable fee - or lodestar- is essentially "what a reasonable, paying client would be willing to pay, given that such a party wishes to spend the minimum necessary to litigate the case effectively." Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009) (citing Arbor Hill, 522 F.3d at 190) (internal quotations omitted).
The lodestar is the product of the hours worked and an hourly rate. See Arbor Hill, 522 F.3d at 183 ("The fee - historically known as the 'lodestar'- to which [ ] attorneys are presumptively entitled is the product of hours worked and an hourly rate.").
Courts can and should exercise broad discretion in determining a reasonable fee award. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) ("The court necessarily has discretion in making this equitable judgment."); Arbor Hill, 522 F.3d at 190 (referencing the court's "considerable discretion"). The method for determining reasonable attorney's fees in this Circuit is based on a number of factors, such as the labor and skill required, the difficulty of the questions, the attorney's customary hourly rate, the experience, reputation and ability of the attorney, and awards in similar cases. See Arbor Hill, 522 F.3d at 186 n.3, 190. In particular, when assessing an attorney's requested hourly rate, courts typically consider other rates awarded in the district in which the reviewing court sits. This is known as the "forum rule." See Simmons, 575 F.3d at 174-75 (recounting history of the forum rule); see also Arbor Hill, 522 F.3d at 191 ("We presume, however, that a reasonable, paying client would in most cases hire counsel from within his district, or at least counsel whose rates are consistent with those charged locally.").
In order to overcome the forum rule's presumption, "a litigant must persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result." Simmons, 575 F.3d at 175.
Once the Court determines the reasonable hourly rate, it must multiply that rate by the number of hours reasonably expended, in order to determine the presumptively reasonable fee. See Arbor Hill, 522 F.3d at 190. With very limited exceptions, "contemporaneous time records are a prerequisite for attorney's fees in this Circuit." N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983). The Court must review these time records and the hours an attorney billed in order to determine the reasonableness of such and, in doing so, should examine the value of the work product, and "exclude excessive, redundant or otherwise unnecessary hours." Concrete Flotation Sys., Inc. v. Tadco Constr. Corp., No. 07-CV-319 (ARR) (VVP), 2010 WL 2539771, at *5 (E.D.N.Y. Mar. 15, 2010) (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 2009)), adopted, 2010 WL 2539661 (E.D.N.Y. June 17, 2010). "[A] fee award should be based on scrutiny of the unique circumstances of each case . . . ." McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 426 (2d Cir. 2010) (internal quotations and citations omitted).
B. Plaintiff's Fee Request
In this case, plaintiff seeks to recover approximately $70,000 in attorney's fees for the time incurred by two attorneys with the Kimm Law Firm — partner Michael S. Kimm ("Kimm") and associate Sung Hee Jang ("Jang"). See Declaration of Michael S. Kimm in Support (July 22, 2015) ("Kimm Decl."), DE #75-2; Supplemental Declaration of Michael S. Kimm in Support (July 29, 2015) ("Kimm Suppl. Decl."), DE #78. Defendants oppose plaintiff's fee application, urging the Court to deny the fee request in its entirety or, in the alternative, to impose a "massive reduction" of the "exorbitant" fee amount sought. See generally Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Costs and Fees (July 27, 2015) ("Def. Fee Opp.") at 3-4, DE #76. While an outright denial of fees is plainly unwarranted, the Court does conclude that both the hourly rates and number of hours incurred are unreasonable and should be substantially reduced.
At first glance, Kimm's declaration implies that plaintiff is seeking to recover for time expended by one associate, Jang. See Kimm Decl. ¶ 5 (discussing the background and work conducted by a single associate, Jang). But an examination of the time records submitted in support of plaintiff's application reveals that plaintiff seeks to recover for time spent by an associate referred to as "tp," who is not explicitly identified by plaintiff in his fee application. See generally Time Records, DE #75-3 at 1-4. Presumably, "tp" refers to Thomas Park, who was never admitted pro hac vice in this matter. See Notice (Jan. 9, 2014). Plaintiff's papers in support of his fee application do not specifically mention Thomas Park, nor does the Kimm Declaration provide any information as to his experience or work on this matter. See generally Pl. Fee Mem.; Kimm Decl.; Kimm Suppl. Decl. Therefore, the fee award should not include the 14.25 hours billed by Park. See Adorno v. Port Authority of N.Y. & N.J., 685 F.Supp.2d 507, 514 (S.D.N.Y. 2010) (where plaintiff provided no information about an attorney who billed limited hours, court excluded all of that attorney's hours).
In opposing any fee award, defendants cite several prior cases handled by Kimm that, defense counsel argues, suggest that Kimm lacks credibility with respect to billing. See Def. Fee Opp. at 2. Kimm requests that the Court "strike" defendants' memorandum of law pursuant to Rule 12(f) of the FRCP, arguing that it "serves only to smear plaintiff's counsel with matters from the past in totally unrelated factual and legal contexts." See Plaintiff's Reply Memorandum of Law in Further Support of Fees and Costs with Application to Strike (July 27, 2015) ("Pl. Fee Reply") at 1-2, DE #77. However, Rule 12(f) applies only to the striking of pleadings, not memoranda of law. See, e.g., Katz v. Mogus, No. 07-CV-8314 (PKC) (KNF), 2009 WL 3189342, at *5 (S.D.N.Y. Oct. 6, 2009), adopted, 2009 WL 5173789 (S.D.N.Y. Dec. 30, 2009). Moreover, having touted his firm for its "involve[ment] in numerous reported cases," Kimm Decl. ¶ 4, and having cited the hourly rates awarded for work performed by attorneys in a "well-known and highly respected law firm," Pl. Fee Mem. at 3 (quoting Allende v. Unitech Design, Inc., 783 F.Supp.2d 509, 514-15 (S.D.N.Y. 2011)), Kimm should not now be heard to complain of defendants' reliance on cases in which Kimm and his firm emerge as less than highly respected. In any event, this Court has based its assessment of a reasonable fee amount on its own observations and knowledge of plaintiff's counsel's performance in this case, and has afforded no weight to defendant's ad hominem attacks.
On a related issue, this Court concludes that plaintiff's Motion for Sanctions Under Rule 11 and 28 U.S.C. § 1927 (Aug. 19, 2015), DE #79, should be denied. Plaintiff's fifteen-page supporting memorandum of law essentially repeats the arguments advanced in plaintiff's reply in support of his fee award -- devoting a single sentence to the legal standards applicable to motions for sanctions under section 1927, see Plaintiff's Memorandum of Law In Support of Motions for Sanctions (Aug. 19, 2015) at 12, DE #79-1, with no discussion at all of Rule 11 precedent. Plaintiff should not be rewarded for duplicative work that needlessly multiplies the proceedings before the Court.
1. Reasonable Hourly Rate
Plaintiff requests an hourly rate of $400 for Kimm's services. See Kimm Decl. ¶ 5. Recent cases have held that reasonable hourly rates for partners in wage and hour cases in this District typically range from $300 to $450. See Griffin v. Astro Moving & Storage Co., No. 11-CV-1844 (MKB), 2015 WL 1476415, at *8 (E.D.N.Y. Mar. 31, 2015) (collecting cases); Carrasco-Flores, 2014 WL 4954629, at *9; Frontier Park Co. v. Contreras, 35 F.Supp.3d 264, 273 (E.D.N.Y. 2014); see also Acosta v. Hall of Fame Music Stores, Inc., No. 10-CV-5139 (SLT)(LB), 2015 WL 1003550, at *8 (E.D.N.Y. Mar. 5, 2015) (awarding $350 per hour for attorney with 24 years of experience).
Kimm asserts that his regular billing rate is $500 per hour, see Kimm Decl. ¶ 4., but, for purposes of this motion, he voluntarily reduced his fee by $100, see id. ¶ 5.
Kimm's requested rate is excessive under the facts of this case. First, although Kimm has approximately 25 years of experience as a litigator, his declaration is not clear on the extent of his experience handling wage-and-hour cases. See Kimm Decl. ¶ 4 (averring only that the Kimm Law Firm has "prosecuted and defended" an unspecified number of FLSA cases "before this action"). More importantly, the Court believes that the skills and performance exhibited by Kimm, the supervising attorney on this case, warrant a significant reduction in his hourly rate.
To say that plaintiff's counsel's performance was substandard would be an understatement. To be sure, the errors varied in degree. Some were minor, careless mistakes. See, e.g., Compl. ¶¶ 9-10 (alleging that plaintiff worked six days per week and also alleging that he worked "almost constantly seven days a week"); id. ¶¶ 19-23 (alleging "wrongful" and "retaliatory" discharge without stating relevant law under which claims arose); id. ¶¶ 13-18 (neglecting to allege that the FLSA and NYLL overtime violations were willful); Pl. Mem. at 8-9 (quoting from Dupee v. Klaff's, 462 F.Supp.2d 233, 241-42 (D.Conn. 2006), an opinion concerning FMLA retaliation, and erroneously attributing the quotation to Salazar v. Bowne Realty Associates, LLC, 796 F.Supp.2d 378 (E.D.N.Y. 2011)). Counsel's errors were not, however, limited to minor drafting mistakes. At times, counsel seemed to misunderstand basic legal principles. See 7/14/15 Tr. at 34, 40 (arguing that all allegations in the complaint should be credited on a default motion); Pl. Mem. at 4 (arguing that plaintiff's calculations of overtime damages, as "presented in the complaint," have "been admitted"); Pl. Mem. at 6 (applying incorrect NYLL liquidated damages provision); Pl. Fee Reply at 1-2 (improperly moving to strike a memorandum of law under Rule 12(f)). But perhaps what was most troubling was the fact that counsel proceeded to file documents with the Court concerning plaintiff's rate of pay and salary that clearly contradicted plaintiff's own recollection. See discussion supra pp. 8-9. It is for these reasons that the Court recommends that the award for the hours expended by Kimm be at an hourly rate at the lower end of the acceptable range, or $300 per hour.
As for Jang, plaintiff has proffered no information about her experience in other wage and hour cases. See generally Kimm Decl.; Kimm Suppl. Decl. Kimm alleges that Jang is in her "fifth" year of practice, see Kimm Decl. ¶ 5, but her pro hac vice admission suggests that Jang has been practicing for a little more than three-and-a-half years. See Declaration of Sung H. Jang (Dec. 11, 2014), DE #57-2. Plaintiff's fee request seeks reimbursement at $250 per hour for Jang's work in this matter, which exceeds the reasonable range for an associate with her level of experience. See Lopez v. Yossi's Heimishe Bakery, Inc., No. 13-CV-5050 (FB) (CLP), 2015 WL 1469619, at *13 (E.D.N.Y. Mar. 30, 2015) (adopting magistrate judge's recommendation that the hourly fee of an attorney with three years' experience be reduced from $200 to $175); Carrasco-Flores, 2014 WL 4954629, at *9 (awarding an hourly fee of $200 for work by an attorney with six years of experience). Therefore, the Court recommends awarding $175 per hour for Jang's time.
2. Reasonable Number of Hours
Kimm and Jang spent 82.5 hours and 127.25 hours, respectively, on this matter. See Time Records, DE #75-3 at 26; Supplemental Time Records, DE #78-1. Defendants challenge the amount of time spent by them, arguing that this case was "essentially [] granted on default." See Def. Fee Opp. at 3. But this was not a typical default judgment situation, where default is triggered by a defendant's failure to appear before the plaintiff's attorney invests a significant amount of time on the case. Here, defendants not only appeared, but continually thwarted plaintiff's discovery efforts and this Court's discovery orders, see R&R at 2-9, thereby multiplying the time that plaintiff's counsel was required to devote to the case, cf. Gortat v. Capala Bros., Inc., -- F.App'x -- , 2015 WL 4546254, at *3 (2d Cir. July 29, 2015) (district court did not err in adopting magistrate judge's recommendation that plaintiff's counsel be awarded a fee higher than the amount of damages obtained, as the high fees were "attributable primarily to the Defendants' litigation tactics").
While this case does not involve a typical default judgment, the Court nevertheless deems it appropriate to reduce the number of hours reimbursed by the award. As an initial matter, the Court's assessment of the time charges was impeded by plaintiff's counsel's use of "block-billing," wherein multiple tasks were aggregated into a single billing entry. See, e.g., Time Records (Jan. 6, 2014), DE# 75-3; id. (July 3, 2014); id. (Mar. 17, 2015). Block-billing makes it difficult for the Court to assess the reasonableness of the time spent on particular tasks. See, e.g., Triumph Constr. Corp. v. N.Y. City Council of Carpenters Pension Fund, No. 12 Civ. 8297 (KPF), 2014 WL 6879851, at *6 (S.D.N.Y. Dec. 8, 2014).
More importantly, the Court concurs with defendants that some of the hours billed by counsel were "excessive, redundant or otherwise unnecessary." Def. Fee Opp. at 3 (quoting Hensley, 461 U.S. at 434). While much of the duplicative work performed by Kimm was attributable to defendants' persistent flouting of their discovery obligations, some problematic billing entries flow from Kimm's filing of repetitive papers and/or failure to follow the rules of this Court.
By way of example only, after the Court conducted an initial conference and set a discovery schedule in the case, see Minute Entry (Apr. 18, 2014), DE #18, plaintiff filed a letter on June 18, 2014 -- for which Kimm billed 1.5 hours, see Time Records (June 18, 2014), DE #75-3 -- complaining that the attorney originally representing defendants had failed to confer regarding a Joint Discovery Plan, and seeking the Court's assistance, see Letter to Hon. Roanne L. Mann (June 18, 2014), DE #19. In a one-paragraph Order, the Court declined to act on the request for judicial intervention, as it had not been docketed as a motion. See Order (June 20, 2014), DE #20. In a footnote to that Order, the Court further observed that "it is unclear why, after the Court entered a scheduling order back in April, plaintiff's counsel felt the need to devote much time and energy to attempting to secure defense counsel's signature on a Joint Discovery Plan. No further plan is required; plaintiff should simply serve his discovery demands . . . and complete discovery within the time allotted by the Court." Id. (citations omitted). Later that day, Kimm inexplicably docketed under seal the identical letter-application -- failing even to change the date thereof -- and ignored entirely the problems identified by the Court in its prior footnote. See Letter Motion for Discovery (June 20, 2014), DE #21. Kimm billed 30 minutes for purportedly reading the Court's June 20th Order and refiling the same defective letter. See Time Records (June 20, 2015), DE #75-3.
In addition to the problem of excessive hours, plaintiff's counsel bills in quarter-hour increments (rather than the preferred one-tenth hour), see Kimm Decl. ¶ 3 -- a practice that can lead to inflated and imprecise billing, see, e.g., Local No. 46 Metallic Lathers Union v. Brookman Constr. Co., Inc., No. 12-CV-2180 (ARR) (LB), 2013 WL 5304358, at *5 (E.D.N.Y. Sept. 19, 2013) (collecting cases). Kimm seeks to justify this practice, characterizing it as "standard" and claiming that "we generally do not assert a billing entry unless the time engagement substantially approaches a quarter hour interval." Kimm Decl. ¶ 3. Kimm's assertion is belied by the firm's time records. For instance, Jang billed fifteen minutes to review a simple Notice of Appearance, see Time Records (Mar. 31, 2014), DE #75-3, while Kimm billed fifteen minutes to review a one-sentence order from this Court concerning the sine die adjournment of a deposition. See Time Records (July 7, 2014), DE #75-3.
Having reviewed the time charges, and the arguments of the parties, the Court recommends reducing the number of hours billed by Kimm and Jang by 15 percent, resulting in a total of 70.1 hours for Kimm and 108.2 hours for Jang.
Applying the reduced hourly rates by the reduced number of hours, the Court recommends awarding $39,965 in attorney's fees, as well as an additional $843.50 for plaintiff's reasonable costs.
CONCLUSION
For the foregoing reasons, this Court respectfully recommends awarding plaintiff $83,806— representing $42,997.50 in compensatory and liquidated damages and $40,808.50 in attorney's fees and costs as against defendants Hamza Express and Fadel, jointly and severally. The Court further recommends that plaintiff's August 19th motion for sanctions be denied.
Any objections to the recommendations contained herein must be filed with Judge Weinstein on or before September 8, 2015. Failure to file objections in a timely manner may waive a right to appeal the District Court order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
SO ORDERED. Dated: Brooklyn, New York
August 21, 2015
/s/ _________
ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE