Opinion
17-cv-10243 (MKV) (VF)
09-01-2022
YU HING SU, et al., on behalf of themselves and all others similarly situated, Plaintiffs, v. HAILU ASIAN BISTRO INC., et al., Defendants.
HONORABLE MARY KAY VYSKOCIL, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION FOLLOWING DAMAGES INQUEST
VALERIE FIGUEREDO UNITED STATES MAGISTRATE JUDGE
Plaintiffs Jian Ou and Jian Bin Lin brought this action on behalf of themselves and others similarly situated against Defendant Hailu Asian Bistro Inc. (“Hailu”) to recover unpaid wages, overtime wages, and other damages arising from defendant's violations of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and New York state labor regulations.After entry of a default judgement against Defendant, the Honorable Mary Kay Vyskocil referred this action for a Report and Recommendation on damages. Defendant did not file an opposition to Plaintiffs' motion for a default judgment, nor did Defendant appear at any point in the damages inquest proceeding. After review of the submissions, I respectfully recommend that Plaintiffs be awarded damages as set forth in detail below.
The complaint initially named five additional defendants, Laoung Yong, Poh Lim, John Marzano, Michael A. Marzano, and Yee Way Yap. On September 16, 2020, plaintiffs voluntarily dismissed, without prejudice, their claims against those defendants. See Rule 41 Not. of Voluntary Dismissal, ECF No. 51. The complaint also included an additional named plaintiff, Yu Hing Su. On December 16, 2020, the claims asserted by plaintiff Su were dismissed without prejudice for failure to prosecute. See 12/16/20 Order, ECF No. 54.
FACTUAL AND PROCEDURAL BACKGROUND
The facts recounted here are established by the evidence submitted in support of this inquest and the allegations in the Complaint, which are deemed admitted except as to damages, because of Defendant's default. See Finkel v. Romanowicz, 577 F.3d 79, 83-84 (2d Cir. 2009).
Plaintiff Jian Ou was employed by Hailu as a sushi chef from March 20, 2017, to October 20, 2017. See Compl. ¶¶ 10, 61, ECF No. 1. Plaintiff Jian Bin Lin was employed by Hailu as a sushi chef from February 14, 2017, to October 20, 2017. See Compl. ¶¶ 11, 74. Defendant Hailu Asian Bistro is a New York State corporation, located at 265 Mamaroneck Avenue in Mamaroneck, New York. See id. ¶ 12. Hailu is a “business engaged in interstate commerce” with gross sales exceeding $500,000 per year. See id. ¶¶ 13-14. Throughout the relevant period, the owners and operators of Hailu had the power to hire and fire Plaintiffs, controlled their terms and conditions of employment, and determined their rate and method of compensation. See id. ¶¶ 1531.
Throughout his employment, Ou worked 11.25-hour shifts four days a week and 12-hour shifts two days a week, with a one-hour meal break each day. See Compl. ¶¶ 62-63; Aff. of Jian Ou, filed Oct. 7, 2020 (“Ou Aff.”), at ¶ 2, ECF No. 53-2. Ou thus worked 63 hours per week. See Compl. ¶ 64; Decl. of John Troy dated June 30, 2020 (“Troy Decl.”), ECF No. 43-4 at 2. Ou submitted a sworn affidavit in connection with his motion for a default judgment, where he attested that Defendant never provided any written notification of his pay rate or the hours he worked. See Ou Aff. ¶¶ 4, 24, 26; see also Compl. ¶ 67.
Ou began working at Hailu on March 20, 2017, and he was to be paid a fixed amount of $550 weekly or $1,100 every two weeks. See Compl. ¶ 65; see also Ou Aff. ¶¶ 3, 5, 12. After July 2, 2017, and through September 17, 2017, Ou was not paid by Hailu for the hours he worked. See Compl. ¶ 66; Ou Aff. ¶ 6. Between September 18, 2017, until October 15, 2017, Ou was paid a fixed amount of $350 per week; he never received the difference owed to him of $200 per week. See Compl. ¶ 67, Ou Aff. ¶¶ 8, 12. Ou was not paid for his last week of employment, from October 16, 2017, to October 20, 2017. See Compl. ¶ 68; Ou Aff. ¶ 8. Hailu paid Ou in cash, except for two instances when Ou received a check; Ou was never provided a paystub. See Compl. ¶ 70; Ou Aff. ¶¶ 14, 17-18, 25.
Plaintiff Lin worked the same hours as Ou-63 hours per week comprised of 11.25-hour shifts four days a week and 12-hour shifts two days a week, with a one-hour break each day. See Compl. ¶¶ 75-77; Aff. of Jian Bin Lin filed October 7, 2020 (“Lin Aff.”) ¶ 2, ECF Nos. 53-1, 581. Like Ou, Bin also submitted a sworn affidavit in connection with his motion for a default judgment, where he attested that Hailu never provided any written notification of his pay rate or the hours he worked. See Lin Aff. ¶¶ 9, 23-25, 27; see also Compl. ¶¶ 82-84.
Lin began working at Hailu on February 14, 2017, and he was to be paid a fixed amount of $750 per week or $1500 every two weeks. See Compl. ¶ 78; Lin Aff. ¶¶ 8, 10, 12-13, 15. Thereafter, between August 13, 2017, and until his employment ended on October 20, 2017, Lin was paid a fixed amount of $500 per week; he never received the difference owed to him of $250 per week. See Compl. ¶ 82; Lin Aff. ¶¶ 11-14. During his employment, Lin was paid in cash and he did not receive any pay stubs. Lin Aff. ¶¶ 3, 24.
Hailu never provided Plaintiffs with accurate wage statements or written notice of their rate of pay, their regular pay day, and other statutorily mandated information. See Compl. ¶¶ 4042, 45; Ou Aff. ¶¶ 24, 26; Lin Aff. ¶¶ 23-25, 27. Plaintiffs now seek unpaid minimum wages under the FLSA and NYLL, unpaid overtime wages under the FLSA and NYLL, spread-of-hours pay under the NYLL, liquidated damages, statutory damages, prejudgment interest, postjudgment interest, and attorneys' fees and costs. See Compl. ¶¶ 98-143; Troy Decl. ¶¶ 1, 9, 10, 12, 14.
Plaintiffs filed their complaint on December 31, 2017. See ECF No. 1. Defendant Hailu was served on February 6, 2018. See Aff. of Service, filed Feb. 23, 2018, ECF No. 12. Defendant failed to answer and the Clerk of Court issued a certificate of default on July 19, 2019. See Cert. of Default, ECF No. 25. On June 30, 2020, Plaintiffs filed a motion for default judgment against Hailu. See Mot. for Default Judgment, ECF Nos. 42-44. The Honorable Mary Kay Vyskocil issued an order granting the motion on September 16, 2020. See Order, ECF No. 52. The matter was subsequently referred to the undersigned for an inquest on damages following entry of default judgment. See Order of Reference, ECF No. 55.To date, Hailu has not responded to Plaintiffs' inquest submissions or otherwise appeared in this action. The following recommendations are based on the facts asserted in the Complaint, as well as evidence presented in Plaintiffs' declarations, affidavits, and moving papers.
The matter was originally referred to the Honorable Debra C. Freeman on December 16, 2020, and was reassigned to me on April 27, 2022.
DISCUSSION
In light of defendant Hailu's default, the Court accepts as true the well-pleaded allegations in the complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (internal quotation marks and citation omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found, Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Because of a deficiency in the Plaintiffs' affidavits, which is discussed below, I held a conference on May 23, 2022. See 5/23/22 Minute Entry on ECF. Although notice of the conference was provided on the docket (see ECF No. 59), Defendant did not appear. Plaintiffs' submissions have not been contested and, except as discussed below with regards to overtime wages, the submissions provide all the information needed to determine Plaintiffs' damages. As such, a hearing on the damages inquest is not necessary.
A. Defendant's Liability under the Fair Labor Standards Act and New York Labor Law
1. Statute of Limitations under the FLSA and NYLL
Claims brought under the FLSA must be raised within two years of a non-willful violation, or within three years of a willful violation. See Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 674 (S.D.N.Y. 2011) (citing 29 U.S.C. § 255(a)). Here, in granting Plaintiffs' motion for a default judgment, Judge Vyskocil limited Plaintiffs' recovery for violations of the FLSA to a two-year period. See Order, ECF No 52 at 1. Claims brought pursuant to the NYLL must be raised within six years. See Pineda, 831 F.Supp.2d at 674 (citing NYLL § 663(1), (3)). Regardless of which limitations period applies, however, Plaintiffs' claims are timely. Lin commenced his employment on February 14, 2017, Ou began working for defendant on March 20, 2017, and the employment of both plaintiffs ended only a few months later, on October 20, 2017. See Compl. ¶¶ 61, 74. Plaintiffs filed their complaint on December 31, 2017, approximately two months after their employment ended. See Compl. (ECF No. 1).
Although Defendant may be simultaneously liable under both the FLSA and NYLL, Plaintiffs may not recover damages under both the FLSA and NYLL for the same injury. See Hernandez v. Jrpac Inc., No. 14-cv-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016). Where both the FLSA and NYLL apply to a plaintiff's claims, courts apply the statute that provides the greatest measure of damages. See Elisama v. Ghzali Gourmet Deli Inc., No. 14-CV-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 505, 515-16 (S.D.N.Y. 2017) (same), affd, 752 Fed.Appx. 33 (2d Cir. 2018).
2. Applicability of the FLSA and NYLL
To establish a claim under the FLSA, a plaintiff must show that: “(1) the defendant is an enterprise participating in commerce or the production of goods for the purpose of commerce; (2) the plaintiff is an ‘employee' within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA.” Pelgrift v. 335 W. 41st Tavern Inc., No. 14-CV-08934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017) (citation omitted). A wage-and-hour claim under the NYLL involves a similar analysis, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Tackie v. Keff Enter., Inc., No. 14-CV-2074 (JPO), 2014 WL 4626229, at *2 n.2 (S.D.N.Y. Sept. 16, 2014).
a. Employment Relationship
Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The term “employer” is afforded “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, 15-CV-2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)).
To determine whether Defendant Hailu was Ou's and Lin's “employer” for FLSA purposes, the Court examines the “economic reality” of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Courts in the Second Circuit consider four nonexclusive factors to assess the “economic reality” of an alleged employment relationship, including “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.” Id. at 105 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). This “inquiry is a totality-of-the-circumstances approach, so no one factor is dispositive[.]” Tackie, 2014 WL 4626229, at *2.
Under the NYLL, the definition of “employer” is also very broad, see NYLL § 190(3), “and the crucial inquiry, in determining whether an employer-employee relationship exists, is the ‘degree of control exercised by the purported employer over the results produced or the means used to achieve the results.'” Mondragon, 2019 WL 2551536, at *7 (quoting Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013)). In the absence of a decision from the New York Court of Appeals answering “the question whether the test for ‘employer' status is the same under the FLSA and the NYLL,” Camara v. Kenner, No. 16-CV-7078 (JGK), 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018), “[t]here is general support for giving FLSA and the [NYLL] consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa).” Hart, 967 F.Supp.2d at 924 (internal citation omitted). “Accordingly, courts in this District regularly apply the same tests to determine whether entities were joint employers under NYLL and the FLSA.” Martin v. Sprint United Mgmt Co., 273 F.Supp.3d at 404, 422 (S.D.N.Y. 2017).
Ou and Lin allege that they were employees of Hailu Asian Bistro. See Compl. ¶¶10-11; see also Ou Aff. ¶1; Lin Aff. ¶ 1. Their factual allegations adequately support that assertion. First, both Plaintiffs were employed as sushi chefs at the restaurant. Id. The work performed by a chef is integral to the operation of a restaurant. See Tackie, 2014 WL 4626229, at *3 (in assessing whether allegations established an employer-employee relationship under FLSA, court looked at the type of work performed by the employee and its significance to the business of the employer). And an individual employed as a food preparer or a cook is not exempt from the FLSA's minimum wage and overtime requirements. See Espinoza v. 953 Associates LLC, 280 F.R.D. 113, 130 (S.D.N.Y. 2011) (certifying an FLSA class that included “cooks” and “food preparers”). Moreover, Plaintiffs allege that Defendant Hailu, through its owners, officers, directors, and operators, controlled their daily activities and payment of wages. In that regard, Plaintiffs alleged that the owners and operators of Hailu “(1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employee records” for the restaurant. Compl. ¶¶ 17, 20, 23, 26, 29. Additionally, there is no indication that Plaintiffs had any investment in the restaurant or opportunity for profit outside of their hourly wage. See Tackie, 2014 WL 4626229, at *3. Plaintiffs have thus adequately alleged an employer-employee relationship with Defendant Hailu Asian Bistro within the meaning of the FLSA and NYLL.
b. Interstate Commerce
Under the FLSA, Plaintiffs have established that they or their employer was engaged in interstate commerce. See Ethelberth v. Choice Sec. Co., 91 F.Supp.3d 339, 353 (E.D.N.Y. 2015) (“Engagement in interstate commerce, either by an employee or by the employer as a whole, is a prerequisite for liability for the FLSA's overtime requirement.”); see 29 U.S.C. § 207(a)(1) (employees “engaged in commerce or in the production of goods for commerce” are entitled to overtime compensation at “one and one-half times the regular rate at which [they are] employed”). Here, Plaintiffs alleged that Hailu Asian Bistro is an enterprise engaged in interstate commerce because the restaurant “purchased and handled goods [that] moved in interstate commerce.” Compl. ¶ 14. Plaintiffs also allege that Hailu has annual gross sales in excess of $500,000 per year. Compl. ¶ 13. These allegations are sufficient to show that Hailu is an enterprise engaged in commerce. See Fermin v. Las Delicias Peruanas Restaruant, Inc., 93 F.Supp.3d 19, 33-34 (E.D.N.Y. 2015).
c. Unpaid Overtime
To recover overtime compensation, a plaintiff “must allege sufficient factual matter to state a plausible claim that [he] worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013); Tackie, 2014 WL 4626229, at *3. “The FLSA and the NYLL carry a rebuttable presumption that a weekly salary covers only the first forty hours, unless the parties have an alternate agreement.” Pinovi v. FSS Enters., Inc., No. 13-CV-2800 (GBD) (KNF), 2015 WL 4126872, at *4 (S.D.N.Y. July 8, 2015); see Rosendo v. Everbrighten Inc., No. 13-CV-7256 (JGK) (FM), 2015 WL1600057, at *3 (S.D.N.Y. Apr. 7, 2015) (“[W]hen an employer has defaulted and offers no rebuttal, the Court calculates the employee's regular hourly rate by dividing his weekly salary by forty hours.”).
The complaint alleges that Ou worked 63 hours per week without an overtime premium for the 23 hours he worked in excess of 40 hours each week. See Compl. ¶¶ 64, 72. Similarly, the complaint alleges that Lin worked 63 hours per week without an overtime premium for the 23 hours he worked in excess of 40 hours each week. See Compl. ¶¶ 77, 86. These allegations adequately state a claim for unpaid overtime wages under the FLSA and the NYLL. See Mondragon, 2019 WL 2551536, at *9.
d. Unpaid Spread-of-Hours Pay
Under the NYLL, an employee must “receive one hour's pay at the basic minimum hourly wage rate” in addition to the regular minimum wage for each workday “in which . . . the spread of hours exceeds 10 hours.” N.Y.C..R.R. § 142-2.4(a). “The term ‘spread of hours' is defined as ‘the length of the interval between the beginning and end of an employee's workday . . . including] working time plus time off for meals plus intervals off duty.'” Inclan v. N.Y.Hospitality Grp., Inc., 95 F.Supp.3d 490, 502 (S.D.N.Y. 2015) (citing N.Y. Comp. Codes R. & Regs. Tit. 12, § 146-1.6). Section 663 of the Labor Law expressly authorizes an employee to sue his or her employer to recover unpaid wages otherwise due to him or her under the statute. N.Y. Labor Law § 663(1). There is no counterpart under the FLSA for New York's spread-of-hours claim. See Fermin, 93 F.Supp.3d at 45.
“By its plain language, section 142-2.4(a) only provides supplemental wages to workers who are paid the minimum wage required under New York law. It does not ensure additional compensation to employees whose wages sufficiently exceed that floor.” Espinosa v. Delgado Travel Agency, Inc., No. 05-CV-6917 (SAS), 2007 WL 656271, at *2 (S.D.N.Y. Mar. 2, 2007); see also Almeida v. Aguinaga, 500 F.Supp.2d 366, 369-70 (S.D.N.Y. 2007) (collecting cases). However, as of January 1, 2011, employers are required to pay a spread-of-hours premium for “all employees in restaurants and all-year hotels, regardless of a given employee's regular rate of pay.” 12 N.Y.C.R.R. § 146-1.6(d) (emphasis added); see also Flores v. Anjost Corp., 284 F.R.D. 112, 118-19 (S.D.N.Y. 2012); 12 N.Y.C.R.R. § 146-3.1(b) (defining “restaurant”).
Here, both Ou and Lin attest to having worked more than ten hours a day. Throughout his employment, Ou attests to working 11.25-hour shifts four days a week and 12-hour shifts two days a week. Ou Aff. ¶ 2; Compl. ¶¶ 62-64. Likewise, Lin attests that he worked the same 11.25-hour shifts four days a week and 12-hour shifts two days a week. Lin Aff. ¶ 2; Compl. ¶¶ 75-77. Further, both Plaintiffs worked as chefs at a restaurant. Ou Aff. ¶ 1; Lin Aff. ¶ 1; Compl. ¶¶ 1011. Both Plaintiffs have established an entitlement to recover spread-of-hours pay. See Fermin, 93 F.Supp.3d at 45-46 (allowing restaurant employees to recover spread-of-hours pay).
B. Plaintiffs' Damages
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)). Under both the FLSA and the NYLL, an employer is required to maintain “records of the wages, hours, and persons employed by him.” Calle v. Yoneles Enterprises, Inc., 16-CV-1008 (NGG), 2017 WL 6942652, at *11 (E.D.N.Y. 2017) (citation omitted). A defaulting defendant, however, “deprive[s] the plaintiff of the necessary employee records required by the FLSA, thus hampering [the] plaintiff's ability to prove his damages.” Santillan v. Henao, 822 F.Supp.2d 284, 294 (E.D.N.Y. 2011). Consequently, where a defendant defaults, a plaintiff may meet his burden of proof “by relying on recollection alone” to establish that he “performed work for which he was improperly compensated.” Elisamay. Ghzali Gourmet Deli Inc., 2016 WL 11523365, at *4 (S.D.N.Y. 2016) (citation omitted).
1. Unpaid Minimum Wages
In their complaint, Plaintiffs assert a claim for a violation of the FLSA's minimum-wage requirement, alleging that Defendant failed to pay them the statutorily required hourly minimum wage. Compl. ¶¶ 98-102. Plaintiffs also assert a similar claim under the NYLL. Compl. ¶¶ 103108. “The FLSA and the NYLL carry a rebuttable presumption that a weekly salary covers only the first forty hours, unless the parties have an alternate agreement.” Pinovi, 2015 WL 4126872, at *4; see Rosendo, 2015 WL 1600057, at *3. The Court then “calculates the employee's regular hourly rate by dividing his weekly salary by forty hours.” Id. As of January 1, 2011, New York law also provides that “where an employer fails to pay a restaurant employee an hourly rate of pay, ‘the employee's regular hourly rate of pay shall be calculated by dividing the employee's total weekly earnings . . . by the lesser of 40 hours or the actual number of hours worked by that employee during the work week.'” Xochimitl v. Pita Grill of Hell's Kitchen, No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *6 (S.D.N.Y. Sept. 8, 2016), report and recommendation adopted, 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) (quoting 12 N.Y.C.R.R. § 146-3.5).
Plaintiff Ou attests that he worked 63 hours per week for a fixed payment of $1,100 every two weeks, or $550 per week. See Ou Aff. ¶¶ 2-3, 5, 9, 11. Ou's regular hourly rate was thus $13.75 (calculated by dividing $550 by 40). See also ECF No. 43-4 at 2. Similarly, Plaintiff Lin attests that he worked 63 hours per week for a fixed payment of $1500 ever two weeks, or $750 per week. See Lin Aff. ¶¶ 2, 10, 12, 15. Lin's regular hourly rate was thus $18.75 (calculated by dividing $750 by 40). See also ECF No. 43-4 at 3.
Both Plaintiffs were employed by Hailu Asian Bistro in 2017. During that time, the federal minim wage was $7.25 an hour. See 29 U.S.C. § 206(a)(1)(C). In New York, the state minimum wage was $11 per hour if Hailu had more than 11 employees or $10.50 per hour if Hailu had 10 or fewer employees. See 12 N.Y.C.R.R. § 146-1.2. Plaintiffs' allegations contain no information about the number of employees at Hailu Asian Bistro during the time of their employment, but regardless of the number of employees at the restaurant, Plaintiffs' own allegations establish that Ou's and Lin's hourly rates at all times during their employment exceeded the applicable state and federal statutory minimum wage. Regardless of which hourly minimum wage applies, Plaintiffs have thus not shown that they are entitled to unpaid minimum wages under either the FLSA or NYLL.
Although both Plaintiffs attest that, for certain periods of time, they were not paid their agreed-upon wages (Ou Aff. ¶¶ 11-13; Lin Aff. ¶¶ 8, 12, 14-16), neither asserts a claim for unpaid wages.
2. Unpaid Overtime Wages Both the FLSA and the NYLL require an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. As discussed, Ou's regular hourly rate of pay was $13.75 per hour, and Lin's regular hourly rate of pay was $18.75. In their respective affidavits, however, neither Plaintiff attests that he did not receive overtime pay from Hailu. Although the allegations in the affidavits imply that Ou and Lin were not paid overtime pay, neither Plaintiff makes that affirmative representation in their respective affidavits.
Plaintiffs bear the burden of establishing that they were not properly compensated for overtime work performed and must substantiate their claim with evidence to prove the extent of their damages. Xochimitl, 2016 WL 4704917, at *4-5. Although an inquest into damages may be held by affidavit, without an in-person hearing, the affidavit must provide a sufficient basis for the damages sought. Id. at *5. Moreover, the Court gave Plaintiffs an opportunity to remedy the issue. At the conference on May 23, 2022, I alerted Plaintiffs to this deficiency and Plaintiffs' counsel represented that he would submit revised affidavits for both Plaintiffs by June 3, 2022. See ECF No. 61. Although Plaintiffs requested an extension of time to do so, it has now been over two months and counsel has not submitted a request for additional time. Without a sworn statement by each Plaintiff that he was not paid overtime wages, Plaintiffs have not substantiated their claim for overtime wages. See Garcia v. Francis General Construction Inc., No. 20-CV-4233 (JPC), 2022 WL 2698434, at *5 n.7 (S.D.N.Y. July 12, 2022).
I thus recommend that Plaintiffs not be awarded any unpaid overtime wages.
3. Unpaid Spread-of-Hours Pay
Both Plaintiffs worked in excess of 10 hours per day during their respective six-day work weeks. Ou Aff. ¶ 2; Lin Aff. ¶ 2. New York law thus entitles them to an extra hour's worth of pay at the state minimum wage for each day in excess of 10 hours. See Espinoza v. Broadway Pizza & Rest. Corp., No. 17-CV-7995 (RA) (KHP), 2021 WL 7903991, at *8 (S.D.N.Y. Nov. 18, 2021), report and recommendation adopted, 2022 WL 977068 (S.D.N.Y. Mar. 31, 2022). During that time, the relevant state minimum wage was $11 per hour if Hailu had more than 11 employees or $10.50 per hour if Hailu had 10 or fewer employees. See 12 N.Y.C.R.R. § 146-1.2. Because the complaint contains no allegations as to whether Hailu was a business with 10 or fewer employees, I use the lower hourly rate in determining the spread-of-hours pay.
Plaintiff Ou's spread-of-hours pay is $63 per week (calculated by multiplying $10.50 by 6). Ou worked for Hailu from March 20, 2017, to October 20, 2017, for a period of 30 weeks and four days. Ou Aff. ¶ 1. Ou is thus owed $1,890 for the 30 weeks ($63/week multiplied by 30 weeks) and $42 for the remaining four days he worked for Hailu ($10.50 multiplied by four days). Thus, Ou's total unpaid spread-of-hours wages is $1,932.00.
Plaintiff Lin's spread-of-hours pay is also $63 per week, as he worked the same number of hours and days as Ou. Lin worked for Hailu from February 14, 2017, to October 20, 2017, for a period of 35 weeks and three days. Lin Aff. ¶ 1. Lin is thus owed $2,205 for the 35 weeks ($63/week multiplied by 35 weeks) and $31.50 for the remaining three days he worked for Hailu ($10.50 multiplied by three days). As such, Lin's total unpaid spread-of-hours wages is $2,236.50.
I thus recommend that Plaintiff Ou be awarded $1,932.00 for the violation of NYLL's spread-of-hours provision, and that Plaintiff Lin be awarded $2,236.50 for violation of the same provision.
4. Liquidated Damages
Plaintiffs also seek liquidated damages under NYLL, which provides that liquidated damages may be awarded in an amount equal to “one hundred percent” of the total unpaid wages. Compl. ¶ J (Prayer for Relief); see also N.Y. Labor Law § 663(1). Under state law, “liquidated damages are presumed unless [Defendant] can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012). Because Defendant defaulted, it has not established good faith to rebut the presumption of liquidated damages.
I thus recommend an award of liquidated damages as follows: $2,236.50 to Plaintiff Lin; and $1,932.00 to Plaintiff Ou. That amount is one hundred percent of each Plaintiff's unpaid spread of hours-the only unpaid wages for which Plaintiffs have established an entitlement. Although Plaintiffs also seek liquidated damages under the FLSA (see Compl. ¶ G), because they have not shown an entitlement to unpaid minimum or overtime wages under that statute, there are no liquidated damages to award under the FLSA.
5. Statutory Damages
Plaintiffs also seek statutory damages for Defendant's failure to provide wage notices and wage statements, as required by New York's Wage Theft Prevention Act (“WTPA”), and NYLL §§ 195(1), (3). See Compl. ¶¶ 135-143. The WTPA requires employers to provide, with every payment of wages, a statement that lists the following:
the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; and net wages . . . [T]he statement shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.N.Y. Lab. Law § 195(3).
The WTPA also requires that employers furnish each employee with a wage notice at the time of hiring that contains the following information:
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; the regular pay day designated by the employer in accordance with section one hundred ninety-one of this article; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary.N.Y. Lab. Law § 195(1)(a). As of April 9, 2011, and prior to December 29, 2014, the WTPA required employers, in addition to the wage notice at time of hiring, to provide wage notices “on or before February first of each subsequent year of the employee's employment with the employer.” N.Y. Lab. Law § 195(1)(a) (eff. April 9, 2011 to Dec. 28, 2014). Following December 29, 2014, the WTPA was amended such that the annual February notice is no longer required. See N.Y. Lab. Law § 195(1)(a).
NYLL § 198 sets the amount of statutory damages an employee may recover for violations of Section 195. An employee may recover $50 dollars for each work day that he has not received the wage notice required by Section 195(1), up to the statutory maximum of $5,000. See N.Y. Lab. Law § 198(1-b). For violation of the wage-statement requirement in Section 195(3), an employee may recover $250 for each work day that the violation occurred, up to a statutory maximum of $5,000. See N.Y. Lab. Law § 198(1-d).
Both Plaintiffs attest that they never received a written wage notice at the time of hiring or any time thereafter. Ou Aff. ¶¶ 4, 26; Lin Aff. ¶¶ 9, 27. Because Defendant is in default, I accept Plaintiffs' allegations that Defendant failed to provide either of them with the required notices. See Xochimitl, 2016 WL 4704917, at *14 (awarding plaintiff statutory damages under NYLL §§ 195(1) and (3) where Defendant defaulted).
Both Plaintiffs worked for Defendant for more than 100 days (the number of days at which the $50 per day penalty equals the statutory maximum penalty of $5,000). And Defendant violated the wage-notice requirement for the entirety of Plaintiffs' employments. I thus recommend that each Plaintiff be awarded $5,000 for violation of the wage-notice provision in Section 195(1).
Moreover, both Plaintiffs attest that they never received written wage statements with their pay. Ou Aff. ¶¶ 25-26; Lin Aff. ¶¶ 24, 27. Defendant failed to comply with Section 195(2) throughout the period of Plaintiffs' employments-a total number of days for which the statutory cap is exceeded. I thus recommend that each Plaintiff be awarded $5,000 for violation of the wage-statement provision in Section 195(3).
In sum, I recommend that each Plaintiff be awarded $10,000 in statutory damages for Defendant's failure to provide the requisite wage notices and statements under New York law.
6. Prejudgment Interest
Plaintiffs also request and are entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; see Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 265 (2d Cir. 1999) (finding that the NYLL permits an award of both liquidated damages and prejudgment interest); see also Pineda v. Tokana Cafe Bar Restorant Inc., No. 16-CV-1155 (JPO), 2017 WL 1194242, at *4 (S.D.N.Y. 2017) (“Prejudgment interest may be awarded in addition to liquidated damages under NYLL but not under the FLSA.”). A NYLL plaintiff may recover prejudgment interest only on his or her actual damages under the NYLL, not on his or her liquidated damages under the state law. Gamero, 272 F.Supp.3d at 515.
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Gamero, 272 F.Supp.3d at 515.
To calculate prejudgment interest, the Court must multiple the total amount of Plaintiff's compensatory damages (for unpaid regular wages, overtime wages, and spread of hours wages) by an interest rate of nine percent which will yield the amount of prejudgment interest per year. Plaintiff Ou began his employment on March 20, 2017, the earliest date on which his NYLL statute of limitations period began, and his employment ended on October 20, 2017. The approximate midpoint date between those two limits for calculating prejudgment interest is July 5, 2017. Accordingly, Plaintiff Ou should receive prejudgment interest on a principal of his entire compensatory damages ($1,932.00) at an interest rate of nine percent per year as applied from July 5, 2017, to the date of entry of judgment.
Plaintiff Lin began his employment on February 14, 2017, and his employment ended on October 20, 2017. The approximate midpoint date between those two limits for calculating prejudgment interest is June 19, 2017. Accordingly, Plaintiff Lin should receive prejudgment interest on a principal of his entire compensatory damages ($2,236.50) at an interest rate of nine percent per year as applied from June 19, 2017, to the date of entry of judgment.
7. Post-Judgment Interest
Plaintiffs also seek an award of post-judgment interest. Compl. ¶ M (Prayer for Relief). A plaintiff is “entitled to post-judgment interest on all money awards as a matter of right.” Tacuri v. Nithin Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL 790060, at *12 (E.D.N.Y. Feb. 24, 2015) (citations omitted). According to 28 U.S.C. § 1961(a), an award of post-judgment interest is mandatory in any civil case where money damages are recovered. See Espinoza, 2021 WL 7903991, at *14. I thus recommend that Plaintiffs be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Begum v. Ariba Discount, Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding postjudgment interest).
C. Attorneys' Fees & Costs
The FLSA and NYLL both provide for an award of reasonable attorneys' fees to successful plaintiffs. See 29 U.S.C. § 216(b); NYLL §§ 198(1-a), 663(1). Plaintiff was represented by John Troy, of Troy Law, PLLC. See Decl. of John Troy (“Troy Decl”) Ex. 2, ECF No. 43. Plaintiffs seek an award of attorneys' fees in the amount of $35,924.67 for 81.23 hours' worth of work. See ECF No. 43-2 (“Invoice”). In support of Plaintiffs' application, Plaintiffs' counsel submitted a statement of fees showing the date on which the services were performed, the time expended, and a description of the services completed. See id.
Attorneys' fee awards are typically determined using the lodestar approach, or “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Millea v. Metro-North R.R., 658 F.3d 154, 166 (2d Cir. 2011) (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008)); see also Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 553 (2010). “The reasonable hourly rate is the rate a paying client would be willing to pay,” bearing in mind that “a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d at 190.
“Courts in this District have determined in recent cases that a fee ranging from $250 to $450 is appropriate for experienced litigators in wage-and-hour cases.” Pastor v. Alice Cleaners, Inc., No. 16-CV-7264 (JLC), 2017 WL 5625556, at *7 (S.D.N.Y. Nov. 21, 2017); see also Lopez v. Emerald Staffing, Inc., No. 18-CV-2788 (SLC), 2020 WL 915821, at *13 (S.D.N.Y. Feb. 26, 2020) (“In this district, courts generally award experienced wage-and-hour attorneys between $300 to $400 per hour.”). “[A]s for associates, rates in excess of $225.00 per hour are reserved for FLSA litigators with more than three years' experience, while associates with one to three years of experience have been awarded rates ranging from $150 to $200 per hour.” Singh v. Meadow Hill Mobile Inc., No. 20-CV-3853 (CS) (AEK), 2021 WL 4312673, at *16 (S.D.N.Y. Aug. 9, 2021), report and recommendation adopted, 2021 WL 3862665 (S.D.N.Y. Aug. 29, 2021).
In assessing whether the number of hours billed by the attorney is reasonable, courts consider “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (citation omitted). Plaintiff bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of N.Y., 626 F.3d 130, 133-34 (2d Cir. 2010) (citation omitted); see also Fisher v. S.D. Prot. Inc., 948 F.3d 593, 600 (2d Cir. 2020).
District courts exercise “considerable discretion” in awarding attorneys' fees. See D.B. ex rel. S.B. v. New York City Dep't of Educ., 18-CV-7898 (AT) (KHP), 2019 WL 6831506, at *1 (S.D.N.Y. Apr. 22, 2019) (internal quotation marks and citation omitted), report and recommendation adopted, 2019 WL 4565128 (S.D.N.Y. Sept. 20, 2019); see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420 (2d Cir. 2010); Arbor Hill, 522 F.3d at 190. However, when awarding attorneys' fees, the court must also “clearly and concisely state reasons supporting the award.” Tackie v. Keff Enters. LLC, No. 14-CV-2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014) (citing Hensley, 461 U.S. at 437; and Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 64 (2d Cir. 2014)) (awarding attorneys' fees under FLSA and NYLL).
1. Reasonable Hourly Rate & Hours Expended
The Troy Law Firm is seeking fees on behalf of John Troy, Aaron Schweitzer, Maggie Huang, Bella Ho, Karyn Beck, Leanghour Lim, and Preethi Kilaru. See ECF No. 43-2. Troy, the attorney of record for Plaintiffs, seeks a fee of $550 per hour. Schweitzer seeks a fee of $350 per hour. Huang, Ho, and Beck each separately request a fee of $150 per hour. Lim requests a fee of $250 per hour. And Kilaru requests a fee of $200 per hour. Apart from submitting an “invoice” detailing the hours worked by each of these individuals and their respective fee amount, Plaintiffs' counsel has not submitted a declaration explaining each individual's role in this matter, their relevant professional background, or their experience prosecuting or defending wage-and-hour cases. And counsel's memorandum of law in support of Plaintiffs' motion for default judgment includes only a single paragraph generally discussing the fee-shifting provisions of the FLSA and NYLL. See Mem. of Law at 17, ECF No. 44. There thus is no basis from which to assess whether the requested fee for each individual is reasonable in light of their past experience.
Moreover, as has been documented by other courts in this District, courts “have balked at the sort of rates requested” by members of the Troy Law Firm. See Garcia, 2022 WL 2698434, at * 7 (collecting cases). Indeed, courts have repeatedly reduced the rates requested by John Troy “in light of the consistently poor quality of his work.” See, e.g., Rodpracha v. Pongsri Thai Rest. Corp., No. 14-CV-02451 (DF), 2021 WL 6205861, at *3 (S.D.N.Y. Dec. 29, 2021). The quality of counsel's work here has been no different. As such, I recommend reducing the proposed hourly rates to $300 per hour for John Troy, $150 per hour for Aaron Schweitzer, $100 per hour for Maggie Huang, and $70 per hour for Preethi Kilaru. Those hourly rates for those individuals are the exact amounts recently approved in a fee award by the Honorable John P. Cronan in a wage-and-hour case where the defendant also defaulted. See Garcia, 2022 WL 2698434 at *8. For Bella Ho, who evidently is a paralegal, a recent decision of another court concluded that an hourly rate of $75 was reasonable. See Jin Li v. Western Metal Work & Supply, Inc., No. 17-CV-1015 (JBW) (RML), 2019 WL 2436275, at *7 (E.D.N.Y. Feb. 27, 2019). I recommend that the same hourly rate apply here. As for Karyn Beck and Leanghour Lim, I was unable to find a recent case where a reasonable hourly rate was discussed for either of those two individuals. And because counsel's submission does not explain who these individuals are or their work experience, I am unable to determine an appropriate hourly rate. As such, I do not recommend that any fees be awarded for the time expended by Karyn Beck and Leanghour Lim.
Next, I turn to whether the requested hours are reasonable. Plaintiffs' counsel has billed for approximately 81 hours of work. After subtracting the time for work performed by Lim and Beck, counsel seeks payment for 76.83 hours of work. Even looking at only the 76.83 hours, those hours are still in excess of what is typically awarded in wage-and-hour cases where the defendant defaults. See Lopez, 2020 WL 915821, at *14 (68.5 hours reasonable in multiple plaintiff wage-and-hour case litigated for nearly two years but ultimately decided on default); Gonzales v. Gan Israel Pre-Sch., No. 12-CV-6304 (MKB) (VMS), 2014 WL 1011070, at *21 (E.D.N.Y. Mar. 14, 2014) (49.9 hours reasonable in two-plaintiff wage-and-hour case where defendants defaulted). This is a routine wage-and-hour case where counsel filed a bare-bones motion for default judgment. And, a lot of the work was error ridden. See Jan. 20, 2021 Order, ECF No. 56 (ordering counsel to provide supplemental damages submission because the prior submission lacked the “factual and/or legal support needed” for the Court to make a recommendation on damages). Given the lack of complexity of the legal and procedural issues, coupled with the poor quality of the work performed by counsel, I recommend reducing the hours by one-third. See Garcia, 2022 WL 2698434, at *8 (recommending a one-third reduction in hours billed by Troy Law Firm); see also Williams v. Epic Security Corp., 368 F.Supp.3d 651, 656-57 (S.D.N.Y. 2019) (“Courts in this Circuit have recognized a district court's authority to make across-the-board percentage cuts in hours, as opposed to an item-by-item approach, to arrive at the reasonable hours expended.”).
I also subtracted the time allocated to Ellen Chen (0.17 hours) because no hourly rate was provided for Chen and thus the amount requested for her time was $0. See ECF No. 43-2 at 4.
I thus recommend the following award of attorney's fees.
Individual
Hours Requested
Hours Recommended (reflecting a one-third reduction)
Requested Hourly Rate
Recommended Hourly Rate
Total Recommended Award
John Troy
53.48
37.436
$550
$300
$11,230.80
Aaron Schweitzer
10.98
7.686
$350
$150
$1,152.90
Bella Ho
2.5
1.75
$150
$75
$131.25
Maggie Huang
8.2
5.74
$150
$100
$574
Preethi Kilaru
1.67
1.169
$200
$70
$81.83
TOTAL
76.83
53.781
-
-
$13,170.78
2. Costs
An employee who prevails in a wage-and-hour action is entitled to recover costs under both the FLSA and the NYLL. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). “As with attorneys' fees, [a] 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); see also Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017), report and recommendation adopted, 2017 WL 3084408 (E.D.N.Y. July 18, 2017). “An award of costs ‘normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged [to] fee-paying clients.'” Fisher, 948 F.3d at 600 (quoting Reichman Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)).
Plaintiffs seek costs in the amount of $1,154.50: $400 for the case filing fee, $750 for process server fees ($125 for each of the six named defendants), and $4.50 for a binder. See ECF No. 43-2 at 4. The Court takes judicial notice of the $400 filing fee. See, e.g., Soto v. Los Corbaticas Deli Grocery II Corp., No. 18-CV-3602 (JGK) (JLC), 2018 WL 4844018, at * 9 (S.D.N.Y. Oct. 5, 2018), report and recommendation adopted, 2018 WL 6173713 (S.D.N.Y. Nov. 23, 2018) (taking judicial notice of $400 filing fee). However, counsel has not submitted underlying documentation to substantiate the amount of the process server fee or the fee for the binder. I thus do not recommend an award of costs for these fees without proper documentation. See, e.g., Id. at *9 (declining award of process server fee in the amount of $195 where counsel did not provide documentation to support the amount requested); Acharya v. Solanki, 18-CV-8010 (MKV) (JLC), 2022 WL 1144696, at *9 (S.D.N.Y. Apr. 12, 2022) (declining cost award for $120 process server fees where fee amount was not substantiated).
I thus recommend an award for costs in the amount of $400.
CONCLUSION
For the reasons set forth above, I recommend that each individual Plaintiff be awarded the following amounts, which are comprised of unpaid spread-of-hours wages, liquidated damages, and statutory damages: $14,473.00 for Jia Bin Lin; and $ 13,864.00 for Jian Ou. I also recommend an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. Additionally, I recommend awarding Plaintiffs' attorneys' fees in the amount of $13,170.78 and costs in the amount of $400. Finally, the Clerk of the Court is respectfully directed to calculate pre-judgment interest at the statutory rate of 9% a year as follows: for Plaintiff Lin, on the amount of $2,236.50, from June 19, 2017, to the date judgment is entered; and for Plaintiff Ou, on the amount of $1,932.00, from July 5, 2017, to the date judgment is entered. Plaintiffs are directed to serve a copy of this Report and Recommendation on Defendant and file proof of service of the same on the docket by no later than September 15, 2022.
Copies to:
All counsel (via ECF)
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Vyskocil. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed.R.Civ.P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atknson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).