Summary
recommending attorney's fees be reduced by one-third
Summary of this case from Hernandez v. NJK Contractors, Inc.Opinion
10-CV-4313 (NG)
04-19-2013
JUAN MEJIA and EMANUEL PERALTA, individually and on behalf of all persons similarly situated, Plaintiffs, v. EAST MANOR USA INC., GREAT JJ CORP., QUEENS MANOR, INC., CATERIA CORP., SUN OK MOON, TIN MING CHENG (a/k/a TIM MING CHENG), and BETTY CHUNG, Defendants.
REPORT & RECOMMENDATION
GOLD, STEVEN M., United States Magistrate Judge:
INTRODUCTION
Plaintiffs bring this action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and under the New York Labor Law ("NYLL"), seeking to recover unpaid minimum wages, unpaid overtime compensation, statutory damages and attorney's fees and costs in connection with defendants' labor law violations. A collective action has been certified as to their FLSA claims under 29 U.S.C. § 216(b), and eighteen plaintiffs have joined the action. Order dated Apr. 8, 2011 (entry of the collective action notice as an Order of the Court); Docket Entries 8, 10, 39-42, 46-52, 63-65, 68 (consent forms of opt-in plaintiffs).
Upon plaintiffs' application and in light of their failure to appear in or otherwise defend this action, the Clerk of Court noted the default of defendants East Manor USA, Inc., Queens Manor, Inc., Cateria Corp., and Tin Ming Cheng. Docket Entries 30, 61. Plaintiffs then moved for the entry of default judgment against these four defendants. Docket Entry 66. By Order of July 30, 2012, the Honorable Nina Gershon referred the motion to me for report and recommendation, with discretion to render my report after all issues against the appearing defendants had been resolved. Docket Entry 69. Appearing defendants Betty Chung, Sun Ok Moon and Great JJ Corporation have now been dismissed from the case. Docket Entries 53, 77. For the reasons stated below, I respectfully recommend that compensatory and liquidated damages in the amount of $257,131.06 be awarded to twelve of the twenty plaintiffs in the action: Chen, Cuetlach, Eng, Feng, Jie Fan Huang, Yu Yao Huang, Jiao, Liang, Xiao Ling Lin, Mejia, Peralta, and Vasquez. I further recommend that prejudgment interest pursuant to N.Y. C.P.L.R. § 5004 be awarded on the $11,474 due to plaintiff Mejia from August 3, 2006 to the date of judgment and on the $11,456.25 owed to plaintiff Peralta from May 13, 2006 to the date of judgment. Finally, I respectfully recommend that plaintiffs' attorneys be awarded $35,443.52 in fees and costs.
FACTS
Plaintiffs are twenty individuals who worked as "dishwashers, waiters, cooks, food runners, busboys" or in other similar roles in two restaurants, both called East Manor, located in Flushing and Elmhurst, New York. Compl. ¶¶ 2, 25. The defendants in default are several corporate entities through which the restaurants were operated, as well as one individual, Tin Min Cheng, also known as Tim Min Cheng, alleged to be plaintiffs' employer. Compl. ¶ 1 (defining "East Manor" as, inter alia, East Manor USA, Inc., Queens Manor, Inc., Cateria Corp., and Tin Ming Cheng); see also Supp. Mem. 2d at 4 (explaining that East Manor USA, Inc., Cateria Corp., and Queens Manor, Inc. are all alleged to be plaintiffs' employers).
"Compl." refers to the Plaintiffs' Third Amended Class Action Complaint, Docket Entry 43.
"Supp. Mem. 2d" refers to plaintiffs' supplemental memorandum submitted in response to the Court's Order of February 6, 2013. The memorandum is located at Docket Entry 79.
Plaintiffs began working for defendants at various times beginning in 2004 and, with the exception of one plaintiff, continued working at East Manor at least until the restaurant changed ownership on December 31, 2009. Compl. ¶ 25; Miller Supp. Aff. ¶ 6; Pls. Damages Chart. Plaintiffs allege that they were not paid the minimum wage required by statute and that they worked more than forty hours per week but were not compensated with overtime pay. Compl. ¶¶ 28- 29. They further allege that East Manor both did not keep accurate records of the time employees worked and falsified time records. Compl. ¶ 32. Most plaintiffs have submitted affidavits attesting to lack of overtime pay, many plaintiffs describe a lack of accurate time record-keeping, and plaintiffs Chen, Cuetlach, Jie Fan Huang, Jiao, Liang, Mejia, and Vasquez also describe hours and pay rates that indicate they were not paid the statutorily required minimum wage. See generally Plaintiffs' Affidavits, Docket Entries 66-3 to 66-15; Pls. Damages Chart.
"Miller Supp. Aff." refers to the supplemental affidavit of plaintiffs' counsel submitted in support of the motion, Docket Entry 71-1. Plaintiffs have also summarized the damages they seek in a document, referred to here as "Pls. Damages Chart," located at Docket Entry 71-2.
DISCUSSION
I. Liability
Once a default judgment is entered, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. See Greyhound Exhibitgroup, Inc., v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Montcalm Pub. Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992). "Nevertheless, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law." Labarbera v. ASTC Labs., Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y. 2010) (internal quotation marks omitted); accord Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). For the reasons set forth below, I conclude that plaintiffs' complaint asserts valid claims for violations of state and federal wage and hour laws.
I first turn to whether plaintiffs' employment with defendants is covered by the FLSA. The FLSA provides that
The NYLL, unlike the FLSA, "does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales." Rosas v. Subsational, 2012 WL 4891595, at *4 (E.D.N.Y. Sept. 11, 2012) (internal quotation marks and citation omitted).
[e]very employer shall pay to each of his employees . . . who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, . . . [wages] not less than the minimum wage rate in effect under subsection (a)(1) of this section.29 U.S.C. § 206(b). An enterprise is engaged in commerce where, in relevant part, it "has employees . . . handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce" and where its "annual gross volume of sales made or business done is not less than $500,000." Id. § 203(s)(1)(A). Commerce is, in turn, defined as "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." Id. § 203(b).
Thus, a plaintiff in an FLSA action must establish: 1) that an employer-employee relationship exists, and 2) that the employer is engaged in interstate commerce. See 29 U.S.C. § 206(b). Turning to the second prong first, plaintiffs have established that defendants operated in interstate commerce. The complaint alleges that the two restaurants employing plaintiffs were "enterprise[s] engaged in commerce," as defined in the FLSA. Compl. ¶ 26. Plaintiffs have also provided an affidavit from one of the named plaintiffs attesting to the fact that food prepared and served by East Manor restaurant located in Elmhurst was shipped to it from China. Peralta Aff. 2d ¶¶ 5-6, Docket Entry 79-1. These facts are sufficient to satisfy the interstate commerce requirement of the FLSA. See, e.g., Smith v. Nagai, 2012 WL 2421740, at *2 (S.D.N.Y. May 5, 2012) (holding that a restaurant's purchase of food from out of state "fulfill[ed] the interstate commerce requirement for FLSA coverage"). Finally, at least in their submissions in support of the pending motion, plaintiffs have alleged that the amount of sales or business done by the restaurants exceeded $500,000. Miller Supp. Mem. 3-4. I therefore conclude that defendants' restaurants constitute enterprises engaged in commerce and that they are subject to the FLSA.
Although plaintiffs have provided explicit proof of international food shipments only with respect to the Elmhurst restaurant, it is logical to infer that defendants' second location obtained food through interstate commerce as well. In any event, both the Flushing and Elmhurst locations constituted a single enterprise. The FLSA defines an "enterprise" as "the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all such activities whether performed in one or more establishments . . . ." 29 U.S.C. § 203(r)(1). Plaintiffs' allegations regarding the common control of the defaulting defendants over the two restaurants suffice to establish that they are part of a single enterprise. See Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 121 (E.D.N.Y. 2011) (finding, in a default case, that allegations that two defendant-businesses were owned and operated by the same person and engaged in the same type of work and that plaintiffs worked for both businesses simultaneously demonstrated that defendants constituted an enterprise).
"Miller Supp. Mem." refers to the memorandum submitted by plaintiffs in response to my Order dated August 6, 2012, and is located at Docket Entry 71.
The first prong of a claim under the FLSA requires a plaintiff to establish that the defendant meets the statutory definition of an "employer." The FLSA defines an "employer" as "any person acting directly or indirectly in the interest of an employer in relation to an employee," and a "person" as, among other things, either an individual or a corporation. 29 U.S.C. § 203(a), (d). The definition of an employer for purposes of the New York Labor Law is "similarly expansive." Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342 (S.D.N.Y. 2005) (citing, inter alia, N.Y. Lab. Law § 651(6)). Plaintiffs have alleged that the corporate defendants operated the restaurants where plaintiffs worked, and that their officers, shareholders and directors were responsible for the practices challenged in this lawsuit. Compl. ¶¶ 1-5, 11-13; Supp. Mem. 2d at 4. The corporate defendants thus clearly meet the definition of employers under both federal and state law.
Cheng, the individual defendant, may also be held liable as an employer. Following the Supreme Court's mandate in Goldberg v. Whitaker House Coop., 366 U.S. 28, 33 (1961) that courts look to the "economic reality" of a situation to determine who qualifies as an employer, the Second Circuit has identified the following factors as relevant: "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." Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999). The NYLL employs the same economic realities test. Slamna v. API Restaurant Corp., 2012 WL 2979067, at *3 (S.D.N.Y. July 20, 2012); Doo Nam Yang, 427 F. Supp. 2d at 342 n.25. Here, several plaintiffs have submitted affidavits stating that Cheng closely supervised employees, had authority to fire them and controlled how much they were paid. See, e.g., Jiao Aff. ¶¶ 8-9, Docket Entry 66-5 (stating that Cheng owned the restaurant and would "give directions to the employees and tell [them] what to do," as well as that he determined whether employees were hired, fired or given a raise); Chen Aff. ¶¶ 8-9, Docket Entry 66-6 (same); Jie Fan Huang Aff. ¶¶ 8-9, Docket Entry 66-7 (same); Liang Aff. ¶¶ 8-9, Docket Entry 66-9 (same). Therefore, Cheng is an employer subject to FLSA and NYLL liability.
Having concluded that plaintiffs have established the threshold requirements for invoking the FLSA and NYLL, I now turn to the substance of plaintiffs' claims. Plaintiffs have established defendants' liability for violations of federal and state minimum wage and overtime mandates. The FLSA and NYLL both provide for a statutory minimum wage. 29 U.S.C. § 206(a) (setting the minimum hourly wage at $5.85 between July 24, 2007 and July 23, 2008, $6.55 between July 24, 2008 and July 23, 2009, and $7.25 thereafter); N.Y. Lab. Law § 652(1) (setting the minimum wage at $6.00 in 2005, $6.75 in 2006, and $7.15 in 2007 and after, or at the federal minimum wage if greater). Plaintiffs allege that they "were regularly required to perform work for Defendants without receiving proper minimum wages" under federal and New York law. Compl. ¶ 28. Specifically, they state that named plaintiff Mejia worked approximately 72 hours per week and was paid $300 to $360 for that work. Id. ¶ 30. Even calculating Mr. Mejia's rate of pay based on the higher amount of $360 per week, it appears he was paid only $5 per hour, lower than both the federal and state minimum wage rates for the relevant periods. Other collective action plaintiffs make similar allegations in their affidavits. See, e.g., Jie Fan Huang Aff. ¶¶ 4-5, Docket Entry 66-7; Liang Aff. ¶¶ 4-5, Docket Entry 66-9. Therefore, in light of defendants' default, plaintiffs have established defendants' liability for non-payment of minimum wages.
While plaintiffs allege violations of both federal and state law as to the named plaintiffs, they have withdrawn their New York Labor Law claims as to the opt-in plaintiffs because no class has been certified under Federal Rule of Civil Procedure 23. Supp. Mem. at 2, Docket Entry 71.
Plaintiffs have similarly sufficiently alleged violations of state and federal overtime pay provisions. Both federal and state statutes mandate that employees be paid one and a half times their regular rate for overtime, or time worked above forty hours per week. 29 U.S.C. § 207(a)(1); N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (mandating an overtime wage calculated, in relevant part, in the same manner as that under the FLSA). Plaintiffs allege in their complaint and in each of their affidavits that their rates of pay did not vary, even when their workweek exceeded forty hours. Compl. ¶ 29; see also, e.g., Eng Aff. ¶ 5, Docket Entry 66-10; Lin Aff. ¶ 5; Docket Entry 66-11. Plaintiffs have thus demonstrated, in light of defendants' default, that they were not properly compensated for overtime work.
II. Damages
Although the allegations of a complaint pertaining to liability are deemed admitted upon entry of a default judgment, allegations relating to damages are not. Greyhound Exhibitgroup, 973 F.2d at 158 (internal citation omitted). A court must ensure that there is a basis for the damages sought by a plaintiff before entering judgment in the amount demanded. Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989). This determination may be made based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence. Fed. R. Civ. Proc. 55(b)(2); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991); Fustok, 873 F.2d at 40. A "plaintiff need not compute FLSA damages with precision. The burden is on an employer properly to record hours, and an employee need only as a prima facie matter present an estimate of damages that is satisfactory as 'a matter of just and reasonable inference.'" Harold Levinson Assocs., Inc. v. Chao, 37 Fed. Appx. 19, 20-21 (2d Cir. 2002) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). As such, in the case of defendants' default, "the courts have held that the plaintiff's recollection and estimates of hours worked are presumed to be correct." Perero v. Food Jungle, Inc., 2006 WL 2708055, at *5 (E.D.N.Y. Aug. 7, 2006) (internal quotation marks and citation omitted). In this case, many plaintiffs have submitted affidavits detailing the hours they generally worked and the weekly rate at which they were typically paid. Plaintiffs' counsel has also provided a chart of the damages plaintiffs seek in this case, as well as an affidavit from counsel explaining how those damages were calculated. See Miller Supp. Aff.; Pls. Damages Chart. Finally, plaintiffs' counsel has provided the Court with records of the hours she and her colleagues spent on this case. Docket Entry 66-18.
Plaintiffs seek compensatory damages under federal law for all plaintiffs for a period of three years and under both federal and state law for the named plaintiffs, Mejia and Peralta, for a period of six years. Compl. at 12. Plaintiffs also seek liquidated damages under both statutes, interest, and attorney's fees and costs. Id. I set out my calculations of these damages below.
a. Compensatory and Liquidated Damages
i. Applicable Law
The statute of limitations for wage and hour claims under federal law is two years; under state law, the limitations period is six years. 29 U.S.C. § 255(a); N.Y. Lab. Law § 198(3). The federal limitations period may be extended to three years, however, if the "cause of action [arises] out of a willful violation." 29 U.S.C. § 255(a). To demonstrate willfulness, "the employer must have 'either [known] or showed reckless disregard for the matter of whether its conduct was prohibited by the [FLSA].'" Ramirez v. Rifkin, 568 F. Supp. 2d 262, 268 (E.D.N.Y. 2008) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). Plaintiffs allege in their complaint that defendants' "failure . . . to pay Plaintiffs . . . their rightfully owed wages was willful." Compl. ¶¶ 43, 48. This contention is supported by a number of plaintiffs' affidavits stating that they were directed to underreport the hours they worked. See, e.g., Peralta Aff. ¶ 15, Docket Entry 66-3; Francisco Aff. ¶ 14, Docket Entry 66-14. Therefore, I consider the damages incurred by plaintiffs under the FLSA over a three-year period.
For a violation of the FLSA, an employer is liable to all affected employees
in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.29 U.S.C. § 216(b). Regulations promulgated under the FLSA clarify that, when calculating the overtime wage owed to a plaintiff, courts should use the rate at which a plaintiff "is lawfully employed," which, by virtue of state legislation, may be higher than that mandated by the FLSA. 29 C.F.R. § 778.5; see also Pineda-Herrera v. Da-Ar-Da, Inc., 2011 WL 2133825, at *3 (E.D.N.Y. May 26, 2011). New York Labor Law similarly allows for the recovery of "the amount of any such underpayments, together with costs[,] all reasonable attorney's fees, prejudgment interest as required under the civil practice law and rules," and liquidated damages. N.Y. Lab. Law § 663(1).
Liquidated damages of one hundred percent of the amount of compensatory damages are available under the FLSA where the employer's actions were not taken in good faith. 29 U.S.C. §§ 216, 260. Pursuant to § 260, courts may, in their discretion, decline to award liquidated damages where the employer "shows to the satisfaction of the court" that he acted in good faith and reasonably believed that he was conforming with the FLSA. Obviously, an employer who defaults fails to make a showing of good faith. Rodriguez v. Queens Convenience Deli Corp., 2011 WL 4962397, at *4 (E.D.N.Y. Oct. 18, 2011) (citing Wicaksono v. XYZ 48 Corp., 2011 WL 2022644, at *6 (S.D.N.Y. May 2, 2011)). I therefore recommend that plaintiffs be awarded liquidated damages under the FLSA.
New York Labor Law similarly permits an award of liquidated damages. During the period for which plaintiffs Mejia and Peralta seek NYLL damages, New York law mandated that liquidated damages of twenty-five percent were to be awarded "if [the] underpayment [of wages] was willful." N.Y. Lab. Law § 663(1) (2009). Courts typically engage in the same analysis to determine willfulness in this context as they do when examining whether to apply the FLSA's longer statute of limitations period. Janus v. Regalis Construction, Inc., 2012 WL 3878113, at *6 (E.D.N.Y. July 23, 2012) (noting that, while the "test for willfulness under the NYLL is whether the employer knowingly, deliberately, or voluntarily disregard[ed] its obligation to pay wages," "[n]otwithstanding their differences in wording, the FLSA and NYLL tests parallel one another" (citing Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 261 (S.D.N.Y. 2008)) (internal citation and quotation marks omitted)). Thus, for the reasons discussed above in connection with determining the applicable statute of limitations under the FLSA, I find that defendants acted willfully and recommend that liquidated damages under the NYLL be awarded.
This provision was twice amended after November 2009, on one occasion to increase to the amount of liquidated damages available to one hundred percent of the amount of underpayments. It is, however, generally recognized that this amendment to the statute does not operate retroactively. See Benavidez v. Plaza Medico, Inc., 2012 WL 500428, at *8 (S.D.N.Y. Feb. 15, 2012); Chenensky v. New York Life Ins. Co., 2012 WL 234374, at *3 (S.D.N.Y. Jan. 10, 2012).
ii. Calculation of Damages
Plaintiffs have prepared a chart laying out the damages sought for each employee. Docket Entry 71-2. I have reviewed the calculations on the chart and compared the amounts claimed to the sworn statements set forth in the affidavits submitted by plaintiffs. The chart by and large conservatively estimates the hours worked and amounts paid reported in the affidavits, Miller Supp. Aff. ¶ 8, and, in general, I have employed these estimates in calculating damages.
As I noted when ordering supplemental briefing, ranges of hours worked have been provided for a number of plaintiffs. I find in reviewing the damages chart that plaintiff has provided conservative estimates of the likely hours worked for each plaintiff. Moreover, although a number of plaintiffs were sporadically not paid at all, see Chart column "S," plaintiff assumed they were paid even during weeks they were not when calculating average weekly wages to better reflect the amounts plaintiffs were typically paid.
Plaintiffs' calculations of the amounts of wages they are owed, however, are problematic; these calculations frequently do not take account of changes in the minimum wage rates during the periods plaintiffs worked at East Manor. For example, it appears that the overtime wages due to plaintiff Chen beginning in July of 2008 were calculated based on an overtime rate of $10.88 per hour, or 1.5 times the federal minimum wage rate applicable after July 24, 2009 of $7.25 per hour. This calculation ignores that a lower minimum wage rate was in effect prior to July 24, 2009. Further, the submission as to certain plaintiffs does not provide enough information to demonstrate that those plaintiffs are entitled to damages. Plaintiffs' counsel has not provided affidavits from eight of the plaintiffs in the case: Pablo Quispo Acevedo, Arturo Burrios, Wei Nian Huang, Zhu Wei Jin, Xue Ziong Lin, Ramiro Linares, Jorge Lozano, and Li Chao Yi (also referred to as Li Choa Yi). Nor has she provided any indication of her basis for determining the hours that these plaintiffs worked or the amounts they were paid. I therefore recommend that damages not be awarded to these eight plaintiffs. In addition, two plaintiffs included in plaintiffs' damages chart, Miguel Angel (who also did not submit an affidavit) and Xin Huan Ding, do not appear to have consented to join this action; no consent for either of these plaintiffs appears on the Court's docket. Finally, two other individuals, Wei Nian Huang and Xue Ziong Lin, have joined the action, but no affidavits have been produced for them and no damages have been calculated on their behalf. I thus recommend that damages be denied to these plaintiffs as well.
If additional plaintiffs consent to join this action, and those consents are accepted by Judge Gershon, I request the opportunity to reexamine the supporting evidence for those plaintiffs' claims and submit a recommendation concerning the amount of damages to which they are entitled.
Due to the failure of these plaintiffs to submit forms consenting to join the action or affidavits or other evidence of wages owed, I calculate the damages owed to the following plaintiffs only: Jian Shen Chen, Felipa Tlamani Cuetlach, Win Sum Eng, Jin Wei Feng, Jie Fan Huang, Yu Yao Huang, Yu Yao Huang, Chen Mei Jiao, Pei Ling Liang, Xiao Ling Lin, Julio Francisco Vasquez, Juan Mejia and Emmanuel Peralta. In some cases, the damages that I calculate are owed to these plaintiffs are higher than those requested by plaintiffs' counsel. In fairness to the defaulting defendants, who were only provided notice of the amounts plaintiffs sought, I recommend that each plaintiff entitled to damages be awarded the lesser of the amount I calculate as due and owing to that plaintiff or the amount sought by counsel on that plaintiff's behalf. In a chart at the end of this section, I summarize my calculations. A more detailed breakdown of the calculations in that chart, explaining how they were derived, can be found in an appendix to this Report.
Some of the adjustments I have made to plaintiffs' calculations warrant explanation, particularly those affecting the damages I recommend with respect to Felipa Tlamani Cuetlach, Yu Yao Huang, and Julio Francisco Vasquez. Counsel took into account that Cuetlach (also referred to as Felipa Tlumania) was paid two different wages at different times, and calculated plaintiff's average pay rate to be $487.50 per week. Based on that calculation, counsel concluded that Cuetlach was never paid less than the relevant minimum wage. The wage amount calculated as an average by counsel, however, is substantially higher than either of the two weekly wages -- $432 per week and $380 per week -- Cuetlach describes in his affidavit. Cuetlach Aff. ¶ 5, Docket Entry 66-15. Moreover, according to his affidavit, Cuetlach was paid $380 per week, the lower of the two weekly rates he describes, during the entire time relevant to the complaint. I have therefore calculated wages owed to Cuetlach based on a wage rate of $380 per week. Similarly, counsel calculated wages owed to Yu Yao Huang based on a wage rate of $850 per week; according to Huang's affidavit, however, his actual rate of pay was $850 every two weeks. Yu Yao Huang Aff. ¶ 5, Docket Entry 66-13. I have therefore based my calculations for Huang on a wage rate of $425 per week.
The calculation for Julio Francisco Vasquez also warrants adjustment. Counsel calculates that Mr. Vasquez earned $5.75 per hour during the period he incurred FLSA damages, from December 6, 2007 to December 31, 2009. Counsel, however, states in her chart that the federal minimum wage was higher than Vasquez's wage only after July 24, 2008. This is not the case; the federal minimum wage was $5.85 per hour between July 24, 2007 and July 23, 2008. Moreover, Vasquez indicates his pay varied over time, ranging from $360 per hour when he began working at East Manor and to $330 per hour toward the end of the relevant period. Vasquez Aff. ¶ 5. I have therefore varied the average wage by the time period under consideration.
Having made these adjustments, I calculate that the plaintiffs listed below should be awarded the following amounts in damages (the amount I recommend be awarded -- the lower of the amount sought by a particular plaintiff and the amount I have calculated is owed to that plaintiff -- is indicated in bold):
| NAME | EMPLOYMENTDATES | AVG.WEEKLYWAGE | AVG.HOURSWORKEDPERWEEK | FLSADAMAGES | FLSALIQUIDATEDDAMAGES | NYLLDAMAGES | NYLLLIQUIDATEDDAMAGES | TOTAL | DAMAGESREQUESTEDBYPLAINTIFFS(WHERELOWER) |
|---|---|---|---|---|---|---|---|---|---|
| Jian ShenChen | 7/7/2008-12/31/2009 | $400* | 60 | $10,655.50 | $10,655.50 | $0 | $0 | $21,311 | N/A |
| FelipaTlamaniCuetlach | 12/9/2007-12/31/2009 | $380 | 57 | $8046.42 | $8046.42 | $0 | $0 | $16,092.83 | N/A |
| Wing SumEng | 6/22/2008-12/31/2009 | $540* | 60 | $11,000 | $11,000 | $0 | $0 | $22,000 | $21,922.86 |
| Jin WeiFeng | 1/1/2009-12/31/2009 | $625* | 60 | $9216.67 | $9216.67 | $0 | $0 | $18,433.33 | N/A |
| Jie FanHuang | 1/1/2009-12/31/2009 | $425* | 60 | $7809.67 | $7809.67 | $0 | $0 | $15,619.33 | N/A |
| Yu YaoHuang | 7/5/2008-12/31/2009 | $425* | 60 | $9630.50 | $9630.50 | $0 | $0 | $19,261 | N/A |
| Chen MeiJiao | 11/17/2008-12/31/2009 | $396.25 | 60 | $5443.34 | $5443.34 | $0 | $0 | $10,886.67 | N/A |
| Pei LingLiang | 7/6/2008-12/31/2009 | $400* | 60 | $10,655.50 | $10,655.50 | $0 | $0 | $21,311 | $18,522.38 |
| Xiao LingLin | 12/1/2008-12/31/2009 | $440* | 60 | $7906.67 | $7906.67 | $0 | $0 | $15,813.33 | N/A |
| JulioFranciscoVasquez | 12/6/2007-12/31/2009 | $360 (12/6-2007-7/23/2008),$345(7/24/2008-7/23/2009),$330(7/24/2009-12/31/2009) | 60 | $4082.50 | $4082.50 | $0 | $0 | $28,078 | $26,772 |
| JuanMejia | 6/15/2005-9/21/2007,3/1/2009-12/31/2009 | $330 | 60 | $7159 | $7159 | $16,409 | $4102.25 | $34,829.25 | $31,195 |
| Emmanuel Peralta | 1/1/2005-12/31/2009 | $487.50 | 60 | $9587.50 | $9587.50 | $11,456.25 | $2864.06 | $33,495.31 | N/A |
b. Prejudgment Interest
Plaintiffs also seek prejudgment interest on the damages awarded pursuant to state law. The prejudgment interest rate is set at 9% per annum under New York law. N.Y. C.P.L.R. § 5004. Where a number of violations are at issue, courts may set the point at which interest begins to accrue at "a single reasonable intermediate date." N.Y. C.P.L.R. § 5001(b).
Pre-judgment interest "may not be awarded in addition to liquidated damage for violations of the FLSA" because "liquidated damages awarded under the FLSA for unpaid overtime [are] designed to compensate employees for delay in payment," just as pre-judgment interest is intended to do. Santillan v. Henao, 822 F. Supp. 2d 284, 298 (E.D.N.Y. 2011) (citing Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988)). Under New York law, however, prejudgment interest may be awarded even where liquidated damages have been assessed. Id. (citing Reilly v. Natwest Markets Grp., Inc., 181 F.3d 253, 265 (2d Cir. 1999)).
Prejudgment interest is calculated, however, on the unpaid wages due under the NYLL, not on the liquidated damages awarded under the state law. Janus v. Regalis Constr., Inc., 2012 WL 3878113, at *8 (E.D.N.Y. July 23, 2012) (internal citations omitted).
Mr. Mejia's damages under the NYLL accrued between June 15, 2005 and September 21, 2007. Mr. Peralta's accrued between January 1, 2005 and September 21, 2007. Therefore, I recommend that prejudgment interest be calculated from August 3, 2006 on the $11,474 due to Mr. Mejia, and from May 13, 2006 on the $11,456.25 owed to Mr. Peralta.
While I found that plaintiff Mejia was owed a higher amount in NYLL damages, counsel requested $11,474 in unpaid wages under the state law, and thus I recommend interest be awarded based on that lower amount.
c. Attorney's Fees and Costs
Plaintiffs' counsel has also seeks fees and costs for the work performed and expenses incurred by her and her colleagues. Counsel has submitted contemporaneous time records, Docket Entry 66-18, as required in this Circuit. New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Both the FLSA and New York state law provide for an award of reasonable attorney's fees and costs. 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(4). Although a court has "considerable discretion" when determining an award of attorney's fees, a "presumptively reasonable fee" is generally calculated by taking the product of the hours reasonably expended and a reasonable hourly rate that reflects what "a paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d 182, 190 (2d Cir. 2008) (internal quotations omitted). The reasonableness of the hourly rate is evaluated in reference to "rates prevailing in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation. . . . The 'community' is generally considered the district where the district court sits." Santillan, 822 F. Supp. 2d at 299 (internal citations omitted).
Counsel seeks $50,717 in fees and $2028.27 in costs. Having reviewed plaintiffs' time records, I find that the tasks performed and the amount of time spent on them are reasonable. Many of the listed hours, however, relate to the appearing defendants that were later dismissed and to plaintiffs who are not awarded damages in this action due to counsel's failure to submit affidavits or forms indicating their consent to join the action. Moreover, the requested hourly rates are high for this District, particularly the rates of $525 per hour requested for partner Lloyd Ambinder and $350 per hour requested for the associate primarily responsible for the case, Kara Miller. See Gunawan v. Sake Sushi Restaurant, --- F. Supp. 2d ----, 2012 WL 4369754, at *12 (E.D.N.Y. Sept. 24, 2012) (analyzing comparable FLSA and NYLL cases and awarding $275 for the work of a partner, $225 for the work of an associate, and $75 for paralegal work); Shim v. Millennium Grp., 2010 WL 2772493, at *3 (E.D.N.Y. June 21, 2010) (collecting cases and approving a request involving hourly rates of $350 for a partner, $250 for experienced associates, and $80 for paralegals). In light of the above, I respectfully recommend that the fee sought by plaintiffs by reduced by one-third, to $33,811. See Carey, 711 F.2d at 1146 (recognizing that the judge "was acting within his discretion when he chose to make percentage reductions in response to defendants' detailed claims that fee application contained excessive . . . hours"); Vazquez v. Ranieri Cheese Corp., 2011 WL 554695, at *3 (E.D.N.Y. Feb. 7, 2011) (noting that the "Court has the discretion to reduce an unreasonable fee by a fixed percentage rather than attempt line-by-line reductions" (citing cases)).
I also recommend reducing the costs requested by $395.75, as I conclude that "[d]inner [e]xpenses incurred" are not appropriately levied against the defaulting parties. See Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 212 (E.D.N.Y. 2007) (noting that "routine office overhead," unlike "[i]dentifiable out-of-pocket expenses," is not recoverable in an FLSA action). I therefore recommend that plaintiffs' attorneys be awarded $1,632.52 in costs, for a total of $35,443.52 in fees and costs.
CONCLUSION
In sum, I respectfully recommend that plaintiffs be awarded the damages, prejudgment interest, and attorney's fees and costs discussed above, as follows: $21,311 in unpaid wages and liquidated damages to plaintiff Jian Shen Chen; $16,092.83 to Felipa Tlamani Cuetlach; $21,922.86 to Wing Sum Eng; $18,433.33 to Jin Wei Feng; $15,619.33 to Jie Fan Huang; $19,261 to Yu Yao Huang; $10,886.67 to Chen Mei Jiao; $18,522.38 to Pei Ling Liang; $15,813.33 to Xiao Ling Lin; $26,772 to Julio Francisco Vasquez; $31,195 to Juan Mejia, plus 9% per annum interest on $11,474 of that amount from August 3, 2006 to the date of judgment; $33,495.31 to Emmanuel Peralta, plus 9% per annum interest on $11,456.25 of that amount from May 13, 2006 to the date of judgment; and $35,443.52 in attorney's fees and costs. In making this recommendation, it bears noting that counsel's lack of attention to detail in this case has rendered it unnecessarily challenging for the Court to determine damages in what should have been a relatively straightforward wage and hour case. The Court urges counsel to proceed with greater care in the future.
Any objections to the recommendations made in this Report must be made within fourteen days after filing of this Report and, in any event, no later than May 6, 2013. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may waive the right to appeal the District Court's order. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (discussing waiver under the former ten-day limit). Plaintiff shall serve this Report and Recommendation on the defaulting defendants and file proof of service with the Court forthwith.
/s/_________
Steven M. Gold
United States Magistrate Judge Brooklyn, New York
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