Opinion
20-CV-4643 (JPC) (JLC)
10-10-2023
CARMELO CABALLERO DE LA CRUZ, ARNULFO VAZQUEZ BASURTO, OMAR ESPINOBARROS VAZQUEZ, and RAYMUNDO VAZQUEZ ANGEL, Plaintiffs, v. PASTRAMI PRINCE INC. D/B/A PASTRAMI QUEEN, 1125 KOSHER DELI CORP D/B/A PASTRAMI QUEEN, STEVEN FRIEDMAN, BARRY FRIEDMAN, and THIERNO SISSE, Defendants.
To the Honorable John P. Cronan, United States District Judge:
REPORT & RECOMMENDATION
MMES L. COTT, United States Magistrate Judge.
Plaintiffs Carmelo Caballero De La Cruz (“Caballero”), Arnulfo Vazquez Basurto (“Basurto”), Omar Espinobarros Vazquez (“Vazquez”), and Raymundo Vazquez Angel (“Angel”) (together, “plaintiffs”) were employed by Pastrami Queen, a kosher deli in Manhattan, at various times between April 2014 and March 2020. Plaintiffs allege that Pastrami Prince, Inc. (d/b/a Pastrami Queen), 1125 Kosher Deli Corp (d/b/a Pastrami Queen), Steven Friedman, Barry Friedman, and Thierno Sisse (together, “defaulting defendants”) violated the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and the New York Codes, Rules and Regulations (“NYCRR”) by failing to pay them unpaid wages and overtime compensation, spread of hours pay, withheld tips, and occupational equipment costs. Plaintiffs further seek liquidated damages, pre- and post-judgment interest, and attorneys' fees and costs. For the reasons stated below, plaintiffs should be awarded damages in the amount of $402,847.72, along with pre- and post-judgment interest, and $18,424.75 in attorneys' fees and costs.
I. BACKGROUND
A. Procedural History
On June 17, 2020, plaintiffs Caballero, Basurto, Vazquez, and Angel filed a complaint, alleging wage-and-hour violations. Complaint (“Compl.”), Dkt. No. 1. All defendants were served on August 24, 2020, see Dkt. Nos. 28, 32-35, and certain defendants filed an answer on January 6, 2021. Dkt. No. 72. Specifically, an answer was filed by Pastrami Leasehold LLC d/b/a Pastrami Queen, Allan Phillips, and John Phillips (together, “Leasehold defendants”). Pastrami Leasehold LLC then filed for bankruptcy and the case against it was stayed by operation of law. Dkt. Nos. 96, 99. Thereafter, plaintiffs and the Leasehold defendants settled, and the Court approved the settlement. Dkt. Nos. 106, 108. The claims against the Leasehold defendants were dismissed with prejudice on October 31, 2022.
Following approval of the settlement with the Leasehold defendants, the Court directed that plaintiffs move for default judgment as to all remaining defendants-i.e., defaulting defendants Pastrami Prince Inc., 1125 Kosher Deli Corp., Steven Friedman, Barry Friedman, and Thierno Sisse. Dkt. No. 109. The defaulting defendants were further ordered to show cause why a default judgment should not be granted in plaintiffs' favor and to appear at a hearing scheduled for December 19, 2022. Dkt. Nos. 109, 120. On November 14, 2022, plaintiffs moved for a default judgment against the defaulting defendants. Dkt. Nos. 112-15. On December 19 and 21, 2022, the Court held conferences to address the motion, at which the defaulting defendants did not appear. Dkt. Nos. 120-21. The case was then referred to me to conduct an inquest into damages. Dkt. No. 122.
On January 6, 2023, the Court found the defaulting defendants liable with respect to the first eight causes of action as to plaintiffs Caballero, Basurto, and Angel, and the ninth cause of action (withheld tips) as to Basurto and Angel. Order dated January 6, 2023 (“January 6 Order”), Dkt. No. 123. The Court further held that plaintiffs were entitled to prejudgment interest and liquidated damages as applicable under the law and that liability for each cause of action extended only until December 31, 2018. Id. The Court, however, found no liability with respect to the last two causes of action (unlawful wage deductions and violation of timely payment provisions under NYLL), and no liability with respect to any of the claims brought by Vazquez. Dkt. No. 123.
Plaintiffs alleged the following causes of action in their complaint: (1) violation of FLSA minimum wage provisions; (2) violation of FLSA overtime provisions; (3) violation of New York Minimum Wage Act; (4) violation of NYLL overtime provisions; (5) violation of spread of hours wage order under NYLL and NYCRR; (6) violation of NYLL notice and recordkeeping requirements; (7) violation of NYLL wage statement provisions; (8) recovery of equipment costs (i.e., “tools of the trade”); (9) unlawful deductions of tips in violation of NYLL; (10) unlawful wage deductions under NYLL; and (11) violation of NYLL timely payment provisions. See Compl. ¶¶ 195-239.
Accordingly, all future references to “plaintiffs” in this Report and Recommendation are to Caballero, Basurto, and Angel.
B. Factual Background
The following facts, which are drawn from a review of plaintiffs' pleadings, declarations, and submissions related to this inquest, are deemed established for purposes of determining the damages to which they are 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 [defendants'] default, a court is required to accept all of [plaintiffs'] factual allegations as true and draw all reasonable inferences in [their] favor.” (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
Defendants have either historically owned and operated, or currently own and operate, a kosher deli under the name “Pastrami Queen,” located at 1125 Lexington Avenue in Manhattan. Compl. ¶ 2. Defaulting defendants Steven Friedman, Barry Friedman, and Thierno Sisse, serve or served as owners, managers, principals, or agents of Pastrami Prince, Inc. and 1125 Kosher Deli Corp. (both d/b/a Pastrami Queen). Id. ¶ 3, 41. Plaintiffs were employed at the deli as dishwashers, food preparers, and delivery workers. Id. ¶ 4. Although they were employed as delivery workers, plaintiffs were often required to perform non-tipped duties, such as cleaning (including but not limited to floors, surfaces and grease tanks), carrying food items from the basement to the kitchen, taking out the trash, food preparation, “prepacking pickles for deliveries, restocking incoming inventory, ... setting up traps for mice, killing . . . cockroaches, filling in . . . rat holes . . . and preparing tools to be used during construction.” Id. ¶ 5. Plaintiffs consistently worked more than 40 hours per week-at defendants' request, id. ¶ 16-“without appropriate minimum wage, overtime, and spread of hours compensation.” Id. ¶ 6. Defendants also failed to maintain records of the hours plaintiffs worked and did not properly pay them for those hours at either the straight rate of pay or for overtime. Id. ¶ 7. Defendants further failed to pay plaintiffs the required spread of hours pay for days when they worked more than 10 hours per day. Id. ¶ 8. Defendants were also untimely in paying plaintiffs' wages and paid them less than the required tip-credit rate for their delivery jobs. Id. ¶¶ 9-11. Defendants generally “disguis[ed]” plaintiffs' actual earnings and duties in payroll records by designating plaintiffs as delivery workers (rather than non-tipped employees), “appropriat[ed]” plaintiffs' tips, and made unlawful deductions from plaintiffs' wages. Id. ¶¶ 13-14.
II. DISCUSSION
A. Legal Standards
“Even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true.” Am. Jewish Comm. v. Berman, No. 15-CV-5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016) (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)), adopted by 2016 WL 4532201 (Aug. 29, 2016). A plaintiff “bears the burden of establishing its entitlement to recovery and thus must substantiate its claim with evidence to prove the extent of its damages.” Id. at *2 (cleaned up).
“To establish damages upon default, a plaintiff must demonstrate that the ‘compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.'” Id. at *3 (quoting Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159 (2d Cir. 1992)). “[A] 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, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)), adopted by 2014 WL 5051275 (Oct. 8, 2014); see also Fed.R.Civ.P. 55(b)(2). 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., 183 F.3d at 155).
Although Rule 55 of the Federal Rules of Civil Procedure allows a court to conduct hearings to determine damages, they are 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 based on written submissions alone, 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. Marine Claims Agency, 109 F.3d at 111 (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). In this case, “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., 2016 WL 3365313, at *4 (quoting Fustok, 873 F.2d at 40).
An employee seeking to recover unpaid wages “‘has the burden of proving that he performed work for which 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, 687 (1946)). “[T]he employee should not speculate, but may rely on his 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). 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. Assessment of Damages
Plaintiffs seek damages for unpaid wages and overtime compensation, spread of hours pay, wage statement and wage notice violations, tips withheld, liquidated damages, occupational equipment (“tools of the trade”), pre- and post-judgment interest, as well as attorneys' fees and costs. See, e.g., Compl. ¶ 17; Plaintiffs' Proposed Findings of Fact and Conclusions of Law (“PFOF”) ¶¶ 105-49, Dkt. No. 125; Declaration of Bryan D. Robinson dated February 3, 2022 [sic] (“Robinson Decl.”) ¶ 51, Dkt. No. 126; Declaration of Carmelo Caballero de la Cruz dated October 9, 2020 (“Caballero Decl.”), Dkt. No 125-6; Declaration of Arnulfo Vazquez Basurto dated October 7, 2020 (“Basurto Decl.”), Dkt. No. 125-7; Declaration of Raymundo Vazquez Angel dated October 8, 2020 (“Angel Decl.”), Dkt. No. 125-8; Declaration of Clela Errington dated November 14, 2022 (“Errington Decl.”), Dkt. No. 125-5.
In addition to their PFOF and supporting declarations, plaintiffs also submitted a “Damage Calculation spreadsheet” attached to the PFOF as Exhibit D (Dkt. No. 125-4) and attested to by plaintiffs in the declarations attached as Exhibits F-H (Dkt. Nos. 125-6, 125-7, 125-8) and by counsel in the Errington and Robinson declarations (Dkt. Nos. 125-5 & 125-6). The Court will refer to the spreadsheet as the “Damages Table” throughout this Report and Recommendation.
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) (NYLL applied to damages award because it provides greater relief), adopted by 2020 WL 6257158 (Oct. 23, 2020). As NYLL provides for greater relief, it will be applied to the calculation of damages in this case, except as to the “tools of the trade” expenses, which are governed by FLSA regulations.
1. Unpaid Minimum Wage and Overtime
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 to the claims in this action, the minimum wage rate under the FLSA was $7.25 per hour, 29 U.S.C. § 206, whereas the state minimum wage was $8.00 per hour in 2014; $8.75 per hour in 2015; $9.00 per hour in 2016; $11.00 per hour in 2017; and $13.00 per hour in 2018. See 12 NYCRR § 146-1.2; NYLL § 652; Damages Table.
Overtime wages are “calculated by multiplying [an employee's] regular hourly rate (or the minimum wage rate[] if [the employee's] regular hourly rate falls below the minimum wage) by one and one-half. That rate then is 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); see also 12 NYCRR § 146-1.4.
b. Application and Calculation
Plaintiffs seek damages for unpaid wages, including overtime compensation, totaling $176,986.75. See Damages Table. Caballero seeks damages for unpaid minimum wages and overtime compensation in the amount of $95,698.75. Id. Basurto seeks damages for unpaid minimum wages and overtime compensation in the amount of $43,689.50. Id. Angel seeks damages for unpaid minimum wages and overtime compensation in the amount of $37,598.50. Id. Given the Court's liability end date of December 31, 2018, see Dkt. No. 123, plaintiffs should be awarded a reduced amount of $174,594.84 in unpaid minimum wages and overtime compensation based on the Court's own calculations.
Caballero's regular rate of pay fell below the minimum wage during the period of April 14, 2014 through January 15, 2019. PFOF ¶¶ 113-14; Damages Table. Basurto's regular rate of pay was consistently below the minimum wage from June 22, 2016, through January 15, 2019. See PFOF ¶¶ 121-33; Damages Table. Angel's regular rate of pay was also sub-minimum wage from August 12, 2017, through January 15, 2019. PFOF ¶¶ 136-42; Damages Table.
Moreover, as plaintiffs' regular rate did not exceed the minimum wage rate during the aforementioned periods, their overtime compensation for that period is calculated as the state minimum wage rate multiplied by one and one-half. For the periods described above in which all three plaintiffs were consistently paid below minimum wage, their overtime compensation is calculated as the statutory minimum wage multiplied by one and one-half.
In sum, accounting for the December 31, 2018 liability end date (rather than the January 15, 2019 date used by plaintiffs), Caballero is owed $93,851.84; Basurto is owed $43,309.50; and Angel is owed $37,433.50 in unpaid minimum wages and overtime compensation.
2. Spread of Hours
a. Legal Standard
Plaintiffs are further entitled to spread of hours pay-“one hour's pay at the basic minimum hourly wage rate”-for any workday that lasts longer than ten hours. 12 NYCRR § 142-2.4(a). “Spread of hours compensation is calculated by multiplying the minimum wage by the number of days an employee worked more than ten hours.” Angamarca v. Pita Grill 7 Inc., No. 11-CV-7777 (JGK) (JLC), 2012 WL 3578781, at *7 (S.D.N.Y. Aug. 2, 2012), adopted by Order dated December 14, 2012 (Dkt. No. 39); PFOF ¶ 104; Errington Decl. ¶ 25.
b. Application and Calculation
Caballero is entitled to spread of hours compensation from April 14, 2014, until August 15, 2017, when he worked more than ten hours a day, two to five days per week. See Caballero Decl. ¶¶ 27, 34, 39. Caballero is thus entitled to spread of hours pay totaling $4,507.00. This figure is based on his differing hourly rate for the following periods:
• April 14, 2014, until December 31, 2014:
o $8.00 * 2 days * 37 weeks = $592.00, PFOF ¶ 106;
• January 1, 2015, until December 31, 2015:
o $8.75 * 5 days * 52 weeks = $2,275.00, id. ¶ 108;
• January 1, 2016, until December 31, 2016: $9.00 * 2 days * 52 weeks = $936.00, id. ¶ 110; and from
• January 1, 2017 until August 15, 2017: $11.00 * 2 days * 32 weeks = $704.00, id. ¶ 112.
Plaintiffs calculate Caballero's spread of hours pay for this period as totaling $910.00. PFOF ¶ 108. This is incorrect as $8.75 multiplied by 5 days for 52 weeks equals $8.75 multiplied by 260 days (5 * 52 = 260), which totals $2.275.00.
Basurto is also entitled to spread of hours compensation from October 1, 2018, until October 31, 2018, as he worked more than ten hours a day, six days per week, for four weeks. Id. ¶ 126. Basurto is thus entitled to spread of hours pay of $13.00 * 6 days * 4 weeks = $312.00. Id.
Plaintiffs, in error, refer to plaintiff Basurto as Caballero De la Cruz in this paragraph though all other references in this section of the PFOF are to Basurto.
Lastly, Angel is entitled to spread of hours compensation from August 12, 2017, through November 30, 2017, as he worked more than ten hours a day, seven days a week, for 16 weeks. Id. ¶ 137; Angel Decl. ¶¶ 27, 40, 47. Angel is thus entitled to spread of hours pay of $11.00 * 7 days * 16 weeks = $1,232.00. PFOF ¶137.
3. 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)].” Canaveral v. Midtown Diner NYC, Inc., No. 19-CV-635 (GBD) (JLC), 2019 WL 4195194, at *5-6 (S.D.N.Y. Sept. 5, 2019) (quoting Pastor v. Alice Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *5 (S.D.N.Y. Nov. 21, 2017)), adopted by 219 WL 6170058 (Nov. 19, 2019); 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 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 here do not. Plaintiffs allege only that they neither received wage notice nor wage statements for the duration of their employment, Caballero Decl. ¶ 37; Basurto Decl. ¶¶ 48-49; Angel Decl. ¶¶ 44-45, but do not further allege any concrete harm.
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) (RWL), 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).
4. Tips Withheld
a. Legal Standard
Plaintiffs request damages for tips withheld by defendants. See, e.g., PFOF ¶¶ 74, 97, 131, 145. Under both federal and state law, employers may compensate tipped employees at a lower hourly rate by crediting a portion of their tips against the minimum wage. See, e.g., Andrade v. 168 First Ave Rest. Ltd., No. 14-CV-8268 (JPO) (AJP), 2016 WL 3141567, at *4 (S.D.N.Y. June 3, 2016), adopted by 2016 WL 3948101 (July 19, 2016). “To be eligible to take a tip credit, however, the employer must satisfy certain prerequisites.” Kim v. Kum Gang, Inc., No. 12-CV-6344 (MHD), 2015 WL 2222438, at *23 (S.D.N.Y. Mar. 19, 2015). Among other conditions, the employer “must inform the employee of the statutory requirements governing tip credits.” Id.
Employers are also required to provide notice to be eligible for a tip credit under NYLL. 12 NYCRR § 146-1.3 (“An employer may take a credit towards the basic minimum hourly rate if a service employee or food service worker . . . has been notified of the tip credit.”). “In particular,” prior to the start of employment, “an employer seeking to apply a tip credit must provide the employee with written notice stating (1) the amount of tip credit to be claimed against the minimum wage and (2) that extra pay is required if the employee's tips are insufficient to bring his or her pay up to meet the minimum wage.” Romero v. Anjdev Enterprises, Inc., No. 14-CV-457 (AT), 2017 WL 548216, at *9 (S.D.N.Y. Feb. 10, 2017) (citing 12 NYCRR §§ 146-1.3, 146-2.2(a)). “Acknowledgement of that notice, signed by the employee, must be retained for six years.” Id. (citation omitted). Additionally, with exceptions not relevant here, NYLL does not permit an employer to “demand or accept, directly or indirectly, any part of the gratuities, received by an employee.” NYLL § 196-d.
b. Application and Calculation
At all times during their employment, Basurto and Angel's tips were withheld from them by the defaulting defendants. See, e.g., PFOF ¶¶ 74, 97, 131, 145; Errington Decl. ¶¶ 55, 74; Basurto Decl. ¶¶ 45-46; Angel Decl. ¶¶ 41-42. Further, it does not appear from the record that the defaulting defendants were ever eligible to claim the tip credit during plaintiffs' employment. PFOF ¶¶ 44-45, 73-74 (describing defendants' lack of notice to plaintiffs regarding how they were offsetting or accounting for tips in plaintiffs' wages); see, e.g., Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-CV-3725 (DC), 2010 WL 4159391, at *2 (S.D.N.Y. Sept. 30, 2010) (employers ineligible for “tip credit” given lack of notice); Ke v. Saigon Grill. Inc., 595 F.Supp.2d 240, 254 (S.D.N.Y. 2008).
Basurto is thus entitled to $13,067.25 in withheld tips based on an end liability date of December 31, 2018. PFOF ¶¶ 74, 131; Basurto Decl. ¶ 46. Similarly, Angel is entitled to $4,935.77 in withheld tips. PFOF ¶¶ 97, 145; Angel Decl. ¶ 42.
5. Liquidated Damages
a. Legal Standard
NYLL entitles an employee to “liquidated damages equal to [100 percent] 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.” NYLL §§ 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), adopted as modified by 2017 WL 1968677 (May 11, 2017)).
b. Application and Calculation
Because defendants defaulted, plaintiffs are entitled to liquidated damages for all of their unpaid wages-unpaid minimum wage, unpaid overtime, unpaid and spread-of-hours, 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) (awarding all three), adopted by 2022 WL 6175174 (Oct. 6, 2022)); see also PFOF ¶ 167; Robinson Decl. ¶ 47; as well as for their withheld tips. See, e.g., Pastrana v. Mr. Taco LLC, No. 18-CV-9374 (GBD) (SN), 2022 WL 16857111, at *9 (S.D.N.Y. Sept. 23, 2022) (citing cases), adopted by 2022 WL 16857107 (Nov. 10, 2022). Based on the calculations listed above, the defaulting defendants owe plaintiffs the following in liquidated damages: Caballero is owed $98,358.84 ($93,851.84 + $4,507.00), Basurto is owed $56,688.75 ($43,309.50 + $312.00 + $13,067.25), and Angel is owed $43,601.27 ($37,433.50 + $1,232.00 + $4,935.77) (totaling $198,648.86).
6. Tools of the Trade Expenses
a. Legal Standard
Plaintiffs also seek damages for “tools of the trade” or equipment expenses as well as maintenance services defendants required them to purchase-such requirements being in violation of the FLSA and NYLL. See Compl. ¶¶ 75, 114, 166, 226; PFOF ¶¶ 48, 78, 99, 120, 135, 149. Courts in this District have acknowledged that, under the applicable FLSA regulations,
if [there] is a requirement of the employer that the employee must provide tools-of-the-trade which will be used in or are specifically required for the performance of the employer's particular work, there would be a violation of the [FLSA] in any workweek when the cost of such tools
purchased by the employee cuts into the minimum or overtime wages required to be paid him under the [FLSA].Cocoletzi v. Fat Sal's Pizza II, Corp., No. 15-CV-2696 (CM) (DF), 2019 WL 92456, at *7 (S.D.N.Y. Jan. 3, 2019) (alterations in original) (quoting 29 C.F.R. § 531.35), adopted by 2019 WL 92456 (Jan. 3, 2019), order clarified, 2019 WL 5727472 (Jan. 7, 2019). Courts recognize “[v]ehicles such as bicycles” as “‘tools-of-the-trade,' if the particular employees, such as delivery workers, are required to own and use them during the course of their employment.” Id. (quoting Yu G. Ke v. Saigon Grill, Inc., 595 F.Supp.2d 240, 257-58 (S.D.N.Y. 2008)). Similarly, employers must “compensate employees for the purchase and maintenance of required uniforms if the employees' expenditures . . . would reduce their wages to below minimum wage.” Id. (citation omitted). A uniform also qualifies as a tool of the trade if it is “specifically required for the performance of the employer's particular work, and therefore ‘cannot consist of ordinary wardrobe items.” Id. (internal quotation marks omitted) (first quoting 29 C.F.R. § 531.35; then quoting Hernandez v. Spring Rest Grp., LLC, No. 17-CV-6084 (AJN), 2018 WL 3962832, at *4 (S.D.N.Y. Aug. 17, 2018)).
b. Application and Calculation
Consistent with other calculations in this Report and Recommendation and the liability end date set forth in the January 6 Order, amounts in this section refer to equipment, maintenance, and repair services purchased through December 31, 2018. See Dkt. No. 123.
Caballero was required to purchase a bicycle, bike light, helmet, uniform and raincoat, bike maintenance, and bike repairs totaling $1,100.00. PFOF ¶¶ 48, 120; Caballero Decl. ¶ 40; Damages Table. Basurto was required to purchase a bicycle, bike lights, helmet, raincoat, and wheel repairs, totaling $3,555.00. PFOF ¶¶ 78, 135; Basurto Decl. ¶ 52. Angel was similarly required to purchase the following with his own funds: a bicycle, helmet, vest, lock, and shoes, totaling $895.00. PFOF ¶¶ 99, 149; Angel Decl. ¶ 48. As plaintiffs' expenses are limited to bikes, bike gear and maintenance, and out-of-the-ordinary wardrobe items such as uniforms, raincoats, and vests, they are entitled to their tools-of-the-trade expenses.
Because tools-of-the-trade expenses are a separate category and not a component of unpaid wages, liquidated damages based on these expenses should not be awarded. See, e.g., Ramos v. Greenwich Catering Corp., No. 18-CV-4790 (VB) (SN), 2020 WL 619928, at *8 (S.D.N.Y. Jan. 15, 2020) (citations omitted), adopted by 2020 WL 615030 (Feb. 7, 2020).
7. Prejudgment Interest
a. Legal Standard
Plaintiffs also seek prejudgment interest. PFOF ¶ 170; Damages Table. “[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., Nos. 10-CV-3950 (DLC), 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 v. Cavallo's of Chelsea, Inc., No. 18-CV-11147 (VSB) (DF), 2022 WL 2531343, at *15 (S.D.N.Y. Apr. 12, 2022), adopted by 2022 WL 4387494 (Sept. 22, 2022).
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); see also U.S. Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 369 F.3d 34, 78-79 (2d Cir. 2004) (affirming district court's award of prejudgment interest based on a “reasonable intermediate date” using “the chronological midpoint in the post-default completion of [multiple] [c]ontracts”). “In cases where, as here, multiple periods of employment are involved, courts ‘often choose the midpoint of the plaintiff's employment within the limitations period.'” Villanueva v. 179 Third Ave. Rest Inc., 500 F.Supp.3d 219, 243 (S.D.N.Y. 2020) (quoting Junmin Shen v. No. One Fresco Tortillas, Inc., No. 16-CV-2015 (RWL), 2018 WL 6712771, *14 (S.D.N.Y. Nov. 26, 2018)), adopted sub nom. Villanueva v. 179 Third Ave. Rest. Inc., No. 16-CV-8782 (AJN) (RWL), 2021 WL 2139441 (S.D.N.Y. May 26, 2021).
b. Application and Calculation
As plaintiffs were employed by Pastrami Queen at various times between April 14, 2014, and January 15, 2019, the Court has calculated reasonable intermediate dates for each plaintiff. See, e.g., Villanueva, 500 F.Supp.3d at 24344 (awarding prejudgment interest based on midpoint of applicable damages period “for each plaintiff'); Ramos, 2020 WL 619928, at *8, *10-11 (calculating three different reasonable intermediate dates for plaintiffs).
Accordingly, as Caballero was employed by Pastrami Queen between April 14, 2014, and January 15, 2019, see, e.g., PFOF ¶¶ 31, 79, a “reasonable intermediate date' for him would be the midpoint between April 14, 2014, and the end liability date of December 31, 2018 (August 22, 2016), and the date of final judgment. See, e.g., Ramos, 2020 WL 619928, at *8. The Court therefore recommends awarding prejudgment interest for Caballero starting from August 22, 2016, until a final judgment is entered in this case.
Similarly, reasonable intermediate dates for Basurto and Angel would be September 26, 2017, and April 23, 2018, respectively, based on Basurto's work for Pastrami Queen beginning June 22, 2016, and Angel's work beginning August 12, 2017, through the end liability date. The Court therefore recommends awarding prejudgment interest for Basurto starting from September 26, 2017, and for Angel from April 23, 2018, until a final judgment is entered in this case.
8. 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 the weekly average 1-year constant maturity U.S. Treasury yield rate published by the Board of Governors of the Federal Reserve System for the calendar week.” Morales v. Mw Bronx, Inc., No. 15-CV-6296 (TPG), 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 attorneys' fees and costs, commencing when the Clerk of the Court enters judgment until the date of payment.” Canaveral, 2019 WL 4195194, at *7.
9. Attorneys' Fees and Costs
Plaintiffs seek a total of $20,551.00 in attorneys' fees. Errington Decl. ¶ 83.However, under the Settlement Agreement with the Leasehold defendants, plaintiffs are entitled to collect $4,000.00 in attorneys' fees. Id. Plaintiffs thus request $16.551.00 from the defaulting defendants. Id. In support of plaintiffs' request for attorneys' fees, CSM Legal, P.C. (“CSM”), the law firm representing them, provided the Court with a copy of its contemporaneous time records. See Timesheets and Expenses for CSM Legal, P.C. dated February 3, 2023 (“CSM T&E”), Dkt. No. 125-9.
While plaintiffs list $20,551.00 as the total amount of attorneys' fees and costs that they seek, the Court believes this number to be incorrect based on the time entries provided, as by the Court's calculations, Errington's and Robinson's fees alone total $21,094.00 based on their proposed hourly rates, and the paralegals' fees are $1,196.25 based on their proposed hourly rates, for a total of $22,290.25. Nonetheless, the Court will use the fee request sought by plaintiffs.
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-N. 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.'” (citation omitted)). 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 Assn'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)). Courts ultimately have broad discretion in determining reasonable attorneys' 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.” (first quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 151 (2d Cir.2008); then quoting Hensley, 461 U.S. at 437)).
a. Reasonable Hourly Rates
i. Legal Standard
“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 Elecs., 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. 26, 2014)), adopted as modified by 2017 WL 1968677 (May 11, 2017)).
ii. Application and Calculation
Plaintiffs' requested attorney rates are $350.00 per hour for Clela Errington, Errington Decl. ¶ 82; $300-350.00 per hour for Bryan Robinson, see Robinson Decl. ¶ 56(b) ($300/hour); CSM T&E at 1 ($350/hour); and $125.00 per hour for paralegal work. Robinson Decl. ¶ 56(c); CSM T&E at 1-5.
CSM's time records include several entries for “EM” and “PU” at a rate of $125.00 per hour. See CSM T&E at 1-5. EU and PU are paralegals whose work falls “within a range of rates for paralegal work” “routinely approved” by courts in this District. Robinson Decl. ¶ 56(c) (citations omitted).
Courts in this District “generally award experienced wage-and-hour attorneys between $300.00 to $400.00 per hour.” Victor v. Sam's Deli Grocery Corp., No. 19-CV-2965 (SLC), 2022 WL 3656312, at *14 (S.D.N.Y. August 25, 2022). Many courts have determined $350 to be a reasonable hourly rate. See, e.g., Silva v. Legend Upper W. LLC., 590 F.Supp.3d 657, 665 (S.D.N.Y. 2022); Victor, 2022 WL 3656312, at *15. Additionally, “[f]or paralegals, hourly rates of $100.00 to $150.00 are typical for awards in this District.” Victor, 2022 WL 3656312, at *15 (citing Inga v. Nesama Food Corp., No. 20-CV-909 (ALC) (SLC), 2021 WL 3624666, at *14 (S.D.N.Y. July 30, 2021), adopted by 2021 WL 3617191 (Aug. 16, 2021)). The Court therefore recommends awarding Errington her rate of $350 per hour. Plaintiffs' requested paralegal hourly rate of $125 is also reasonable and should be awarded.
There are two entries for PU that were billed at incorrect hourly rates: an entry dated March 30, 2020, for 0.17 hours spent “working on [the] complaint” which was billed at $100 per hour, and an entry dated September 3, 2020, for 0.4 hours spent on “[c]alls with client regarding case update,” which was billed at $150 per hour. CSM T&E at 3. As these appear to be errors given PU's proposed hourly rate as a paralegal, see Robinson Decl. ¶ 56(c), these time entries have been multiplied by the $125 hourly rate sought by plaintiffs and recommended by the Court.
Robinson states in his declaration that his hourly rate is $300, having graduated from law school in 2018. Robinson Decl. ¶ 56(a)-(b). Nonetheless, his rate is listed as $350 in the CSM records, see, e.g., CSM T&E at 1-the same as Errington who graduated six years earlier. See Robinson Decl. 56(a). Notably, courts in this District have awarded Robinson rates between $175 and $225 per hour. Compare, e.g., Estrada v. Lagos Lounge Inc., No. 22-CV-2123 (CM) (GWG), 2023 WL 2748846, at *9 (S.D.N.Y. Apr. 3, 2023) (hourly rate reduced to $175 based on law school graduation year and unknown bar admission date), with Victor, 2022 WL 3656312, at *15 (hourly rate reduced to $225 based on Robinson's less than five years of law practice). “[B]earing in mind that ‘a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively,'” Silva, 590 F.Supp.3d at 663 (quoting Arbor Hill, 522 F.3d at 190), the Court recommends awarding Robinson $225 per hour, the same amount as in Victor, based on his experience and admission to the bar in New York and Texas. Robinson Decl. ¶ 56(b).
b. Reasonable Hours
iii. Legal Standard
“After determining the appropriate hourly billing rate, the [C]ourt calculates the hours reasonably expended.” Pastor, 2017 WL 5625556, at *8 (quoting Maldonado, 2012 WL 1669341, at *13 (quotation omitted)). “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.'” OR. 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. 1992)). 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). “In determining what fee is reasonable, the court takes 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).
iv. Application and Calculation
CSM's records include the hours expended, dates of work, and brief descriptions of the tasks performed. Id. In total, Errington worked 52.94 hours, Robinson worked 8.9 hours, and EM and PU worked a combined 9.57 hours, all of which constitute a reasonable number of hours based on the type of work performed. See, e.g., Victor, 2022 WL 3656312, at *16 (28.5 hours reasonable); Xochimitl, 2016 WL 4704917, at *21 (14.80 hours reasonable); cf. Canaveral, 2019 WL 4195194, at *9 (38.95 hours not reasonable). Although Errington's hours are relatively high, the scope of work performed is not inconsistent with that approved in other cases. In Canaveral, for example, the “excessive” 38.95 hours largely “reflect[ed] administrative work” that “could have been performed by a junior associate or paralegal, billing at a lower hourly rate.” Canaveral, 2019 WL 4195194, at *9. By contrast, Errington's tasks here included, among other things, client calls, deposition preparation, motions practice, and attorney affirmations. See CSM T&E at 3-8.
While it may have been preferable for Robinson or another attorney to take on some of these tasks, there is nothing in the time entries to suggest Errington or CSM attempted to bill at a higher rate by underutilizing paralegals. On the contrary, two were assigned to this case, both of whom performed various administrative tasks. Notably, in this case, counsel represented three plaintiffs, not just one. See, e.g., Ni v. Bat-Yam Food Servs. Inc., No. 13-CV-7274 (ALC) (JCF), 2016 WL 369681, at *8 (S.D.N.Y. Jan. 27, 2016) (176.3 hours reasonable where litigation lasted more than two years and involved eight plaintiffs). Plaintiffs should therefore be awarded attorneys' fees for the full number of hours worked.
Accordingly, attorneys' fees should be awarded in the following amounts based on the Court's calculations: $18,424.00 for Errington (52.64 hours * $350 hourly rate), $2,002.50 for Robinson (8.9 hours * $225 hourly rate), and $1,196.25 for paralegal work (9.57 hours * $125 hourly rate), totaling $21,622.75, less the $4,000.00 entitled to CSM Legal, P.C. from the Leasehold defendants as part of their settlement agreement. Errington Decl. ¶ 83. The Court thus recommends awarding plaintiffs $17,622.75 in attorneys' fees.
This number is confirmed by adding together the total billed amount for Errington, excluding the 0.3 hours on October 5, 2020, which were billed out at $0.00. See CSM T&E at 4.
c. Costs
Plaintiffs also seek reimbursement of $802.00 in costs associated with this litigation. CSM T&E at 2. These costs include filing fees and process server fees. Id. Specifically, plaintiffs list the costs as follows:
Id. No other documentation was provided to support these claims.
Date
Notes
Quantity
Rate
Total
06/17/2020
Filing Fee: Filed complaint
1.00
$400.00
$400.00
08/20/2020
Process Server: Service on Individual
1.00
$50.00
$50.00
08/20/2020
Process Server: Service on individual
1.00
$50.00
$50.00
08/20/2020
Process Server: Service on Individual
1.00
$50.00
$50.00
08/24/2020
Service: Service on corp
1.00
$84.00
$84.00
08/24/2020
Service: Service on corp.
1.00
$84.00
$84.00
08/24/2020
Service: Service on corp
1.00
$84.00
$84.00
TOTAL
$802.00
“Fee awards normally include . . . reasonable out-of-pocket expenses incurred by the attorney[s,] and which are normally charged fee-paying clients.” Tr. of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund v. B&L Moving & Installation, Inc., No. 16-CV-4734 (GBD) (JLC), 2017 WL 4277175, at *8 (S.D.N.Y. Sept. 26, 2017) (cleaned up), adopted by 2018 WL 705316 (Feb. 5, 2018). However, “the requesting party must substantiate the request for costs.” Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016).
As other courts have ruled, “[c]osts for shipping, filing fees, process servers, and litigation support are routinely recoverable.” See, e.g., Bank of America, N.A. v. Brooklyn Carpet Exchange, Inc., No. 15-CV-5981 (LGS) (DF), 2016 WL 8674686, at *11 (S.D.N.Y. May 13, 2016) (collecting cases), adopted by 2016 WL 3566237 (June 27, 2016). Although plaintiffs have not substantiated the amount of these costs by providing original invoices or receipts or contemporaneously maintained billing records (which would have been the better practice), they submitted a sworn declaration confirming that their litigation costs amount to $802.00. See Robinson Decl. ¶ 51. This record is sufficient to support recovery of the requested costs. See, e.g., Gold Medal Produce, Inc. v. KNJ Trading Inc., No. 19-CV-3023 (AJN), 2021 WL 4555174, at *2 (S.D.N.Y. Oct. 5, 2021) (court filing fee recoverable without supporting documentation if verified by docket); Guo, 2016 WL 452319, at *3 (sworn statement or declaration under penalty of perjury that certain amounts were expended on particular items sufficient); Abel v. Town Sports Int'l LLC, No. 09-CV-10388 (DF), 2012 WL 6720919, at *34 (S.D.N.Y. Dec. 18, 2012) (declaration under penalty of perjury asserting payment for service of subpoenas “adequately support[s]” awarding that cost).
Accordingly, plaintiffs should be awarded $802.00 in costs.
III. CONCLUSION
For the foregoing reasons, I recommend that the Court award plaintiffs damages in the following amounts, as well as pre- and post-judgment interest:
Damages Category
Total Amount Owed to Plaintiffs (by Category)
Amount Owed (by Individual Plaintiff)
Unpaid Minimum Wage and Overtime
$174,594.84
Caballero: $93,851.84 Basurto: $43,309.50 Angel: $37,433.50
Liquidated Damages on Unpaid Minimum Wage and Overtime Compensation
$174,594.84
Caballero: $93,851.84 Basurto: $43,309.50 Angel: $37,433.50
Unpaid Spread of Hours Pay
$6,051.00
Caballero: $4,507.00 Busarto: $312.00 Angel: $1,232.00
Liquidated Damages on Unpaid Spread of Hours Pay
$6,051.00
Caballero: $4,507.00 Busarto: $312.00 Angel: $1,232.00
Tips Withheld
$18,003.02
Caballero: N/A Busarto: $13,067.25 Angel: $4,935.77
Liquidated Damages on Tips Withheld
$18,003.02
Caballero: N/A Busarto: $13,067.25 Angel: $4,935.77
Wage Notice Violations
$0.00
N/A
Wage Statement Violations
$0.00
N/A
Tools of the Trade
$5,500.00
Caballero: $1,100.00 Busarto: $3,555.00 Angel: $895.00
Attorneys' Fees
$17,622.75
N/A
Attorneys' Costs
$802.00
N/A
TOTAL (Before Attorneys' Fees and Costs)
$402,847.72
Caballero: $197,817.68 Basurto: $116,932.50 Angel: $88,097.54
GRAND TOTAL (Including Fees and Costs)
$421,272.47
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 shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable John P. Cronan, 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 Cronan.
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).