approving a rate of $175 per hour for an associate with two years of experienceSummary of this case from Khabbaz v. Costco Wholesale Corp.
15-CV-1700 (SJ) (JO)
REPORT AND RECOMMENDATION :
Plaintiffs Konrad Koszkos ("Koszkos") and Kristopher Mercado ("Mercado") accuse defendants Janton Industries, Inc. ("Janton"), Designcore, Ltd. ("Designcore"), Joseph F. Ianno, and Frank Ianno (collectively, the "Iannos") of failing to pay the wages to which they were entitled under federal and state law. See Docket Entry ("DE") 33 (Second Amended Complaint) ("SAC"); 29 U.S.C. § 201, et seq. (the Fair Labor Standards Act, or "FLSA"); New York Labor Law ("NYLL") §§ 190, 650, et seq. The defendant employers did not respond, and the plaintiffs therefore seek a default judgment. DE 44. Upon a referral from the Honorable Sterling Johnson, Jr., United States District Judge, I now make this report and for the reasons set forth below respectfully recommend that the court grant the plaintiffs' motion for default judgment and enter judgment against all defendants jointly and severally in the amount of $26,153.53 (consisting of $8,247.50 in unpaid overtime wages; $8,247.50 in liquidated damages; $1,772.03 in prejudgment interest; $7,486.50 in reasonable attorneys' fees; and $400.00 in recoverable costs) as well as post judgment interest at the federal statutory rate pursuant to 28 U.S.C. § 1961.
Janton and Designcore are construction companies that share a principal place of business in Brooklyn, New York; the Iannos are their officers, directors, and owners. SAC ¶¶ 11-14. The plaintiffs worked for the defendants as carpenters, building and installing cabinets in commercial locations. Koszkos worked for the defendants from March 2013 to March 2014. Id. ¶ 21. He typically worked six days per week, for a total of approximately 50 to 80 hours, and was paid $30 per hour for the first 40 hours each week, $45 per hour for hours 40 through 50, and $30 per hour for all hours worked over 50. Id. ¶¶ 26-27. Mercado worked for the defendants from August 2013 to December 2013. Id. ¶ 30. He typically worked five to seven days per week, for approximately 50 to 60 hours, and was paid $20 per hour for the first 40 hours each week, $30 per hour for hours 40 through 45, and $20 per hour for all hours worked over 45. Id. ¶¶ 34-35.
Koszkos filed the initial Complaint on March 30, 2015. DE 1. On April 8, 2015, he filed an Amended Complaint that added Mercado as a plaintiff. DE 9. The plaintiffs filed proofs of service on the defendants on April 23 and 27, 2015. DE 11; DE 12; DE 13; DE 14. The defendants never responded and the Clerk entered their defaults on June 5, 2015. DE 16. The plaintiffs filed a motion for default judgment, together with an affirmation by counsel in support, on June 8, 2015. DE 17 (notice of motion); DE 18 (affirmation of Lloyd Ambinder). The court referred that motion to me on June 9, 2015. The next day, I scheduled a damages inquest, directed the plaintiffs to file any further evidence or arguments that they wished me to consider by July 1, 2015, and invited the defendants - notwithstanding their default - to submit a response to any such supplemental submissions by July 8, 2015. DE 19. At my direction, the plaintiffs served that order on the defendants and filed proof of service on June 17, 2015. DE 20; DE 21; DE 24; DE 25.
I convened a damages inquest on July 22, 2015, at which the defendants did not appear despite being provided notice. I expressed certain concerns at that hearing about the sufficiency of the Amended Complaint and offered plaintiffs the opportunity to amend the complaint and file a new motion for default judgment. DE 32 (minute entry). The plaintiffs withdrew their motion and promptly filed their amended pleading on July 28, 2015. DE 33. They then filed proofs of service of that pleading on the several defendants between August 12 and November 9, 2015. DE 36; DE 37; DE 38; DE 43. The defendants again defaulted. Docket Entries dated Oct. 20 & Nov. 19, 2015.
The plaintiffs filed the instant motion for default judgment on November 20, 2015. DE 44 (notice of motion); DE 45 (declaration of Jonathan Roffe) ("Roffe Decl."); DE 45-7 (Koszkos Decl.); DE 45-8 (Mercado Decl.); DE 45-9 (Koszkos's time records); DE 45-10 (Mercado's time records); DE 45-11 (damages calculations); DE 45-12 (billing statement); DE 46 (memorandum of law) ("Memo."). The court referred the motion to me on December 1, 2015. That same day, I directed the plaintiffs to file any further evidence or arguments that they wished me to consider by December 22, 2015, and again invited the defendants to submit a response to any such supplemental submissions by December 29, 2015. Order dated Dec. 1, 2015. At my direction, the plaintiffs served that order on the defendants on December 3, 2015. DE 48. None of the parties have made any further submissions since then.
A. Applicable Law
When a defendant defaults, the court must accept as true all well-pleaded allegations in the complaint, except those pertaining to the amount of damages. Fed. R. Civ. P. 8(b)(6); see Finkel v. Romanowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). The fact that a complaint stands unanswered does not, however, suffice to establish liability on its claims: a default does not establish conclusory allegations, nor does it excuse any defects in the plaintiff's pleading. With respect to liability, a defendant's default does no more than concede the complaint's factual allegations; it remains the plaintiff's burden to demonstrate that those uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action. See, e.g., Finkel, 577 F.3d at 84; see also Greyhound Exhibitgroup, 973 F.2d at 159 (complaint's assertion of proximate cause necessary for finding of liability must be "properly alleged"). Accordingly, before considering the issue of damages as to each cause of action, I first examine whether the Complaint successfully states a claim for relief.
If the defaulted complaint suffices to establish liability, the court must conduct an inquiry sufficient to establish damages to a "reasonable certainty." Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). Detailed affidavits and other documentary evidence can suffice in lieu of an evidentiary hearing. Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991); see also Alcantara, 183 F.3d at 155. When a defendant defaults in an action brought under the FLSA, the plaintiff's recollection and estimates of hours worked are presumed to be correct. Chun Jie Yin v. Kim, 2008 WL 906736, at *3 (E.D.N.Y. Apr. 1, 2008) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946); Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997)).
2. Federal and State Wage Laws
Both federal and state law require employers to pay their employees the statutory minimum wage as well as a premium (150 percent of the employee's regular rate of pay) for hours worked above 40 hours per week. 29 U.S.C. §§ 206(a), 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. An employee bringing an action for unpaid overtime compensation under either statute has the burden of proving that he performed work for which he was not properly compensated. S. New Eng. Telecomms. Corp., 121 F.3d at 66-67 (citing Mt. Clemens Pottery Co., 328 U.S. at 687); Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 388 (E.D.N.Y. 2007) (citations omitted); Wing Kwong Ho v. Target Constr. of N.Y., Corp., 2011 WL 1131510, at *13 (E.D.N.Y. Mar. 28, 2011) (citing Yang v. ACBL Corp., 427 F. Supp. 2d 327, 331-32, 335-37 (S.D.N.Y. 2005)). If an employer fails to keep the required records, the plaintiff may meet this burden "'if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" S. New Eng. Telecomms. Corp., 121 F.3d at 66-67 (quoting Mt. Clemens Pottery Co., 328 U.S. at 687). A plaintiff may do so solely through her own recollection. Rivera, 497 F. Supp. 2d at 388 (citing Yang, 427 F. Supp. 2d at 335); Monterossa v. Martinez Rest. Corp., 2012 WL 3890212, at *5 (S.D.N.Y. Sept. 7, 2012) (citing Amaya v. Superior Tile & Granite Corp., 2012 WL 130425, at *7 (S.D.N.Y. Jan. 17, 2012)).
The defendants' default establishes that they failed to pay the plaintiffs overtime wages for all hours worked above 40 hours per week. See SAC ¶¶ 45-57. In order to establish the defendants' liability, the plaintiffs must also establish that the defendants were their employers within the meaning of the law, and that they are within the class of persons entitled to the wage laws' protections. I discuss each of those issues below.
1. The Defendants Were Employers
The applicable federal and state statutes have similar standards to determine whether a party qualifies as a plaintiff's employer. See Ansoumana v. Gristede's Operating Corp., 255 F. Supp. 2d 184, 189 (S.D.N.Y. 2003); 29 U.S.C. § 203(d) (defining an employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee"); NYLL § 2(6) (defining an employer as a "person employing any" employee). I therefore rely on case law interpreting the FLSA in considering whether each defendant was the plaintiffs' employer for purposes of their wage claims.
Recognizing the FLSA's remedial purpose, courts in this jurisdiction have adopted an expansive view of the employment relationships to which the wage laws apply. See Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). To determine whether the Complaint adequately alleges that each of the defendants employed the plaintiffs for purposes of their wage claims, the court should consider the economic reality of their relationship with each defendant, including the extent to which each: had the power to hire and fire them; supervised and controlled their work schedule or the conditions of their employment; determined the rate and method of their pay; and maintained employment records. Id. at 12 & n.1 (internal citations omitted). No single factor is dispositive, and "any relevant evidence may be examined so as to avoid having the test confined to a narrow legalistic definition." Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)).
The plaintiffs allege that all four defendants employed them as carpentry workers. SAC ¶¶ 9-10. There is no question that the corporate defendants, Janton and Designcore, are "employers" as defined by the statute. See 29 U.S.C. § 203(d). As to the Iannos, the plaintiffs allege that they are the corporate defendants' principals and owners who "dominated the day-to-day operating decisions ... and made major personnel decisions[;]" that they had "complete control of the alleged activities of Janton and Designcore, which give rise to the claims brought[;]" and that they had the power to hire and fire employees, supervised and controlled employee work schedules, determined the rate and method of pay for employees, and maintained employment records for the corporate defendants. Id. ¶¶ 39-44. Such allegations suffice to establish that all four defendants qualify as the plaintiffs' employers for purposes of the wage statutes. As a result, they may be held jointly and severally liable for the claimed statutory violations. See 29 C.F.R. § 791.2(b)(3) ("a joint employment relationship generally will be considered to exist ... [w]here the employers ... may be deemed to share control of the employee ... [because] one employer controls ... the other employer"); see also Drozd v. Vlaval Constr. Inc., 2011 WL 9192036, at *6 (E.D.N.Y. Oct. 18, 2011) (collecting cases); Shim v. Millennium Grp., LLC, 2010 WL 409949, at *1 (E.D.N.Y. Jan. 27, 2010) (imposing joint and several liability under FLSA where complaint contained allegations of actions taken collectively by multiple defendant employers).
2. Applicability of the FLSA
To establish coverage under the FLSA, an employee must demonstrate that he was personally "engaged in commerce or in the production of goods for commerce," or that his employer was "an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. §§ 206(a), 207(a)(1); see Jacobs v. New York Foundling Hosp., 483 F. Supp. 2d 251, 257 (E.D.N.Y. 2007) (discussing individual and enterprise coverage). I conclude that the plaintiffs have made factual allegations sufficient to establish enterprise coverage under the FLSA.
To properly plead enterprise coverage, an employee must demonstrate that an employer has annual gross sales or revenues greater than $500,000 and regularly and recurrently has two or more employees either engaged in commerce or "handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce." 29 U.S.C. § 203(s)(1)(A)(i)-(ii); see 29 C.F.R. § 779.238. The plaintiffs plead that the corporate defendants are engaged in the construction business and derive annual revenues in excess of $500,000. SAC ¶¶ 11-12. They further allege that the defendants employed the two plaintiffs who performed carpentry related tasks, including the installation and unloading of cabinets that moved in interstate commerce. Id. ¶¶ 24, 32. The plaintiffs allege that the defendants "fabricated wood cabinetry at its New York location, which was then transported to California and installed in various banks." Id. ¶ 17. Those allegations suffice to establish that each corporate defendant is an enterprise within the meaning of the FLSA.
The plaintiffs seek to recover unpaid overtime, spread-of-hours, liquidated damages, interest, attorneys' fees, and costs. See Memo. at 24-25; DE 45-11 (damages calculations). I discuss each component of their requests for relief below after first addressing two preliminary issues.
1. Willfulness and the Limitation Periods
The FLSA permits the plaintiffs to recover unpaid wages that accrued up to two years before they filed the complaint, unless they can demonstrate that the defendants violated the act willfully, in which case the limitations period extends to three years. See 29 U.S.C. § 255(a). A violation of the FLSA is willful if the employer "either knew or showed reckless disregard for the matter of whether its conduct was prohibited" by the statute. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009). The plaintiffs bear the burden to show such willfulness. Cooper Cameron, 586 F.3d at 207 (citation omitted). Mere negligence is insufficient, Richland Shoe, 486 U.S. at 133, and "an employer does not willfully violate the FLSA even if it acted 'unreasonably, but not recklessly, in determining its legal obligation.'" Clarke v. JPMorgan Chase Bank, N.A., 2010 WL 1379778, at *10 (S.D.N.Y. Mar. 26, 2010) (citing Richland Shoe, 486 U.S. at 135 n.13; Reich v. Waldbaum, Inc., 52 F.3d 35, 39 (2d Cir. 1995)). The plaintiffs allege that the defendants willfully violated the FLSA and NYLL, but fail to allege facts in support of these allegations. See SAC ¶¶ 48, 56; Memo. at 14-15. Their allegations are conclusory and do not suffice to establish the defendants' willfulness.
I note, however, that the failure to establish willfulness has only a small effect on the damages calculation. Koszkos began working for the defendants on March 13, 2013, and filed the instant lawsuit just over two years later, on March 30, 2015. As a result, only one two-week pay period pertinent to his claim falls outside the applicable two-year FLSA limitations period, and none of his claims are untimely for purposes of the NYLL, which has a six-year limitations period. See NYLL § 663(3). Mercado's claims are entirely unaffected by the resolution of the willfulness issue: he began working for the defendants in August 2013 and filed the instant claims against them less than two years later, in April 2015.
The claim can be separated into discrete temporal components in this way because "for the purposes of establishing the statute of limitations under the FLSA, a new cause of action accrues with each payday following an allegedly unlawful pay period." Hosking v. New World Mortg., Inc., 602 F. Supp. 2d 441, 446 (E.D.N.Y. 2009) (citations and internal quotation marks omitted); see also 29 C.F.R. § 790.21(b) (regulation providing same).
2. Hours Worked
When an employer fails to maintain accurate wage and hour records, or when no such records have been produced as a consequence of the defendants' default, the "plaintiff's recollection and estimates of hours worked are presumed to be correct." Apolinar v. Global Deli & Grocery, Inc., 2013 WL 5408122, at *6 (E.D.N.Y. Sept. 25, 2013). Thus, although the plaintiffs submitted only limited formal documentation to support their recollections as to hours or compensation, I presume that the allegations are true.
During the first ten months of his employment, Koszkos worked 60 hours per week: three days from 7:00 a.m. to 7:30 p.m. with a 30 minute lunch break, and three days from 7:00 a.m. to 3:30 p.m. with a 30 minute lunch break. Koszkos Decl. ¶¶ 11-12. During the remaining two months of his employment, Koszkos worked approximately 48 hours per week. Id. ¶ 13. Mercado worked either 50 or 60 hours per week: five to six days per week, from 7:00 a.m. to 5:30 p.m. with a 30 minute lunch break. Mercado Decl. ¶¶ 10-11. The plaintiffs also provided several time cards which document the exact hours that they worked. DE 45-9; DE 45-10. Accordingly, I calculate damages based on the time cards where applicable and based on the plaintiffs' recollections for all other pay periods.
Koszkos submitted time cards for the weeks of November 6, 2013, November 13, 2013, January 3, 2014, and January 8, 2014 during which he worked 58.5, 68, 28, and 82 hours respectively. See DE 45-9. Mercado submitted time cards for the weeks of November 6, 2013 and November 15, 2013 during which he worked 39 and 47 hours respectively. See DE 45-10.
As to periods for which Mercado has no records of his hours, I assume that Mercado worked five days per week for half of his tenure, and six days per week for the other half; for ease of calculation, I translate that to an average work week of 55 hours.
3. Overtime Wages
At all relevant times, the defendants were required to pay the plaintiffs a 50 percent premium for their overtime hours - that is, the hours in excess of 40 that they worked in each work week. See 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 146-1.4. The plaintiffs are not entitled to recover cumulative damages for unpaid wages under both federal and state law, but they may recover under the statute which provides the greatest amount of damages. See, e.g., Cao v. Wu Liang Ye Lexington Rest., Inc., 2010 WL 4159391, at *2 n.2 (S.D.N.Y. Sept. 30, 2010).
The defendants paid Koszkos $30 per hour for the first 40 hours each week, $45 per hour for hours 40 through 50, and $30 per hour for all hours worked over 50. SAC ¶ 27. Koszkos worked 60 hours per week during his first 10 months of employment. He should have been paid $2,100.00 per week, but the defendants only paid him $1,950.00 per week. He worked 48 hours per week for the last two months of his employment and was paid the proper overtime amount. I calculate that Koszkos is entitled to recover unpaid overtime wages in the total amount of $6,727.50.
The defendants paid Mercado $20 per hour for the first 40 hours each week, $30 per hour for hours 40 through 45, and $20 per hour for all hour worked over 45. Id. ¶ 35. Mercado worked 55 hours per week. He should have been paid $1,250.00 per week, but the defendants only paid him $1,150.00 per week. I calculate that Mercado is entitled to recover unpaid overtime wages in the total amount of $1,520.00. I therefore recommend that the court find the defendants liable for unpaid overtime wages in the total amount of $8,247.50 (consisting of $6,727.50 for Koszkos and $1,520.00 for Mercado).
4. Spread-of-Hours Wages
Plaintiffs also allege that the defendants violated the NYLL for failing to provide them "spread-of-hours" compensation - one additional hour of pay at the minimum hourly wage for each day they worked over ten hours. NYLL § 650 et seq.; 12 N.Y.C.R.R. § 142-2.4. While the issue has not been definitively addressed by the United States Court of Appeals for the Second Circuit, the majority view in this circuit is that employees who earn more than the minimum wage are not entitled to spread-of-hours compensation. See Singh v. Patel, 2013 WL 2190153, at *2 (E.D.N.Y. May 16, 2013) ("The majority of district courts in this circuit are in accord with the New York Department of Labor's position that those earning more than the minimum wage are not entitled to spread-of-hours pay.") (internal quotations omitted); see also Chen v. JP Standard Constr. Corp., 2016 WL 2909966, at *7 (E.D.N.Y. Mar. 18, 2016) (report and recommendation, collecting cases), adopted, 2016 WL 2758272 (E.D.N.Y. May 12, 2016); but see Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 339-40 (S.D.N.Y. 2005). While plaintiffs adequately allege that they worked over ten hours on some days, they were paid regular rates of $20 and $30 per hour - rates significantly higher than the applicable federal and state minimum hourly wage. Therefore, in accordance with the majority view in this circuit, I recommend that the court deny the plaintiffs' claims for spread-of-hours compensation.
5. Liquidated Damages
Both federal and state law provide for an additional award of liquidated damages to plaintiffs who establish that their employer has failed to pay required wages. An employer who violates the FLSA "shall be liable" for unpaid minimum and overtime wages in "an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). The same amount of liquidated damages is available under the NYLL (for violations occurring on or after April 9, 2011, as all the violations at issue did here). See NYLL § 198(1-a).
A defendant employer can avoid such an award by proving that the violation was the result of a good faith error. See 29 U.S.C. § 260; see S. New Eng. Telecomms. Corp., 121 F.3d at 70-71. A defaulting defendant necessarily fails to meet that burden and should therefore be liable for liquidated damages. See Castellanos v. Deli Casagrande Corp., 2013 WL 1207058, at *6 (E.D.N.Y. Mar. 7, 2013) (report and recommendation), adopted, 2013 WL 1209311 (E.D.N.Y. Mar. 25, 2013).
The overlapping remedies under federal and state law require an analysis of whether the court should award cumulative liquidated damages under both statutes or only one such award. For violations occurring before 2011, New York law provided for liquidated damages equal to one-quarter of the unpaid wages, and federal courts would routinely award cumulative liquidated damages under federal and state law because the differing remedies suggested distinct legislative goals. However, now that New York has amended its statute so that the comparable federal and state laws "provide for essentially identical remedies with respect to liquidated damages, it is harder to argue that they are designed to compensate a plaintiff for disparate harms." Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 91 n.11 (E.D.N.Y. 2012); see also Gortat v. Capala Bros., 949 F. Supp. 2d 374, 381 & n.3 (E.D.N.Y. 2013) (rejecting request for cumulative awards of liquidated damages and noting that New York's "amendments have resolved the disagreement among the district courts" on the issue of overlapping remedies), aff'd, 568 F. App'x 78 (2d Cir. 2014). To the contrary, now that the remedies are so similar - and now that New York has acted to bring its statute in line with its federal counterpart - it seems more reasonable to conclude that the two statutes adopt the same remedies to achieve the same goals. Moreover, a decision to the contrary would have the effect of granting a prevailing plaintiff treble damages (in addition to other remedies) as a remedy for wage law violations - a windfall that neither the state nor the federal legislature appears explicitly to have intended. I therefore conclude that for the period after April 9, 2011, when the FLSA and NYLL both provided for liquidated damages equal to the amount of unpaid wages, the court should award such relief only under one statute. See, e.g., Perez v. Queens Boro Yang Cleaner, Inc., 2016 WL 1359218, at *6 (E.D.N.Y. Mar. 17, 2016) (report and recommendation with identical analysis), adopted 2016 WL 1337310 (E.D.N.Y. Apr. 5, 2016) (Johnson, J.). I therefore respectfully recommend that the court award liquidated damages in the total amount of $8,247.50 (consisting of $6,727.50 for Koszkos and $1,520.00 for Mercado).
6. Prejudgment Interest
New York law generally provides for an award of prejudgment interest on a variety of claims, including the claims for unpaid wages asserted here, at an annual rate of nine percent. See N.Y. C.P.L.R. §§ 5001, 5004. Where, as here, "damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date." Id. § 5001(b). A court has discretion to choose a reasonable accrual date. Conway v. Icahn & Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994). The median date between the earliest ascertainable date the cause of action existed and the date the action was filed is the one most commonly used. See, e.g., Pavia v. Around the Clock Grocery, Inc., 2005 WL 4655383, at *8 (E.D.N.Y. Nov. 15, 2005).
Prior to the April 2011 statutory amendment, the availability of prejudgment interest on NYLL wage claims was a matter of judicial interpretation. See Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *9 (S.D.N.Y. Aug. 2, 2012) ("Unlike under the FLSA, '[p]re-judgment interest and liquidated damages under [the NYLL] are not functional equivalents[,]' ... because 'the liquidated damages provided for in the New York Labor Law are punitive in nature' rather than compensatory.") (quoting Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 262 (S.D.N.Y. 2008)). In 2011, New York amended the statute so as to explicitly provide for an award of prejudgment interest on NYLL wage claims. See NYLL § 663(1).
For Koszkos, who started working for the defendants on March 13, 2013, and filed the Complaint on March 30, 2015, that median date is March 22, 2014; for Mercado, who started working for the defendants in August 2013 and joined in the Amended Complaint filed on April 8, 2015, that median date is June 4, 2014. I therefore use these dates to calculate the plaintiffs' awards of prejudgment interest. I calculate interest for the period from these median dates through August 23, 2016 (the earliest likely date of judgment after allowing time for objections to this report and recommendation), or a total of 885 days for Koszkos and 811 days for Mercado. Interest on the total amount of unpaid overtime wages that the defendants owe Koszkos under the NYLL ($6,727.50), calculated at an annual rate of nine percent for the relevant period, is $1,468.07. Interest on the wages owed to Mercado ($1,520.00) is $303.96. Accordingly, I recommend that the court award prejudgment interest in the total amount of $1,772.03.
7. Post-judgment Interest
"[I]nterest shall be allowed on any money judgment in a civil case recovered in a district court." 28 U.S.C. § 1961. An award of post-judgment interest is mandatory. United States v. Shiavone & Sons, Inc., 450 F.2d 875, 876 (1st Cir. 1971); Wachs v. Winter, 569 F. Supp. 1449, 1450 (E.D.N.Y. 1983). Interest accrues from the date of judgment until the date of payment of the principal amount. Burke v. Guiney, 700 F.2d 767, 774 (1st Cir. 1983); United States v. Bank of Celina, 823 F.2d 911, 915 (6 th Cir. 1986). I therefore respectfully recommend that the court award the plaintiffs post-judgment interest pursuant to 28 U.S.C. § 1961.
8. Attorney's Fees
Both federal and state law authorize the court to award the plaintiffs reasonable attorneys' fees. See 29 U.S.C. § 216(b); NYLL § 663(1). Courts in this circuit assess fee applications using the "lodestar method," under which a reasonable hourly rate is multiplied by a reasonable number of hours expended. See Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997); King v. JCS Enters., Inc., 325 F. Supp. 2d 162, 166 (E.D.N.Y. 2004) (citing cases). A reasonable hourly rate is the rate a "reasonable, paying client" would be willing to pay. Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009); see also McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 420-21 (2d Cir. 2010); Manzo v. Sovereign Motor Cars, Ltd., 2010 WL 1930237, at *7 (E.D.N.Y. May 11, 2010). Reasonable hourly rates are informed in part by the rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Ferrara v. All Am. Trucking Servs., Inc., 2012 WL 1042936, at *7 (E.D.N.Y. Feb. 17, 2012) (report and recommendation, quoting Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984)), adopted, 2012 WL 1041840 (E.D.N.Y. Mar. 28, 2012). District courts have broad discretion, using "their experience with the case, as well as their experience with the practice of law, to assess the reasonableness" of each component of a fee award. Fox Indus., Inc. v. Gurovich, 2005 WL 2305002, at *2 (E.D.N.Y. Sept. 21, 2005) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992)). A fee applicant bears the burden of demonstrating the hours expended and the nature of the work performed through contemporaneous time records that describe with specificity the nature of the work done, the hours, and the dates. N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983). The absence of contemporaneous records precludes any fee award in all but the most extraordinary of circumstances. Scott v. City of N.Y., 626 F.3d 130, 133-34 (2d Cir. 2010). Inadequate documentation warrants reduction of a fee award. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Levy v. Powell, 2005 WL 1719972, at *7-8 (E.D.N.Y. July 22, 2005).
I use the term "lodestar" only for ease of reference. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 190 n.4 (2d Cir. 2008); see also Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166-67 (2d Cir. 2011) (describing the lodestar as producing a "presumptively reasonable fee" and noting that failure to calculate it as a starting point in determining a fee award is "legal error").
The plaintiffs seek reimbursement for their counsel at the following hourly rates: $300 for attorney Adam Biggs, who has 5 years of experience, $200 for attorney Jonathan Roffe, who has 2 years of experience, $175 for forensic accountant Maria Tokarz ("MT"), and $75 for various paralegal assistants. Roffe Decl. ¶¶ 28-30; DE 45-12 (billing statement). While the paralegal assistant rates are reasonable, the attorneys' rates are higher than those this court typically awards. See Jean v. Auto & Tire Spot Corp., 2013 WL 2322834, at *7 (E.D.N.Y. May 28, 2013) (approving hourly rates of $200 for associates with four years' experience and $175 for an associate with two years' experience); see also Jaramillo v. Banana King Rest. Corp., 2014 WL 2993450, at *8 (E.D.N.Y. July 2, 2014) (approving hourly rate of $200 for associates with four years' experience); Cho v. Koam Med. Servs. P.C., 524 F. Supp. 2d 202, 207 (E.D.N.Y. 2007) (reducing partner rate to $250 in "relatively simple" FLSA default action); Rickettes v. Turton, 2015 WL 3868070, at *12 (E.D.N.Y. 2015) (awarding associates who had worked for 4 or 5 years $200 per hour); Sass v. MTA Bus Co., 6 F. Supp. 3d 238, 263 (E.D.N.Y. 2014) (awarding mid-level associate $225 per hour and junior associates $175 per hour); Spence v. Ellis, 2012 WL 7660124, at *5 (E.D.N.Y. 2012) (awarding junior associate $150 per hour); Guzman v. Joesens Auto Parts, 2013 WL 2898154, at *5 (E.D.N.Y. June 13, 2013) (finding hourly rate of $75 for paralegals to be "presumptively reasonable"); Gesualdi v. Tapia Trucking LLC, 2013 WL 831134, at *2 (E.D.N.Y. Mar. 6, 2013) (adopting hourly rate of $75 for paralegals).
According to the pertinent state bar records, Jonathan Roffe was admitted to practice in New York in 2014; Adam Biggs was admitted to practice in Texas in 2011 and in New York in 2014. See New York State Unified Court System, https://iapps.courts.state.ny.us/attorney/AttorneySearch.; State Bar of Texas, https://www.texasbar.com.
The plaintiffs' billing statement includes hours worked by "MT", see DE 45-12, but the supporting papers do not provide any information about her or even her full name, see generally Memo.; Roffe Decl. This information can be found in the supporting papers of plaintiffs' previous motion for default judgment that has since been withdrawn. DE 26 ¶ 32. --------
With respect to the forensic accountant, Tokarz does not appear to be an admitted attorney and the motion's supporting papers provide no information about her. Courts in this Circuit have reduced or disregarded Tokarz's hourly rate where, as here, the plaintiffs provide no information about her. Cardoza v. Mango King Farmers Mkt. Corp., 2015 WL 5561033, at *16 (E.D.N.Y. Sept. 1, 2015) (report and recommendation, reducing Tokarz's rate to "$75 rate applicable to the other non-attorneys who worked on the case"), adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015); Guaman v. J & C Top Fashion, Inc., 2016 WL 791230, at *8 n.6 (S.D.N.Y. Feb. 22, 2016) ("The time records reflect an entry of .6 hours for a Maria Tokarz. We do not consider these hours, however, because plaintiff provides no background information about this person."). I therefore recommend that the court award fees based on the following hourly rates: $200 for Biggs, $175 for Roffe, and $75 for Tokarz and the paralegal assistants.
The plaintiffs seek reimbursement for a total of 76.4 hours of time expended by their attorneys, accountant, and paralegal assistants. Memo. at 24; DE 45-12 (billing statement). That total, for a case in which the defendants defaulted and their counsel could draw on the experience of litigating many similar cases in this court seems excessive. Both counsel and their assistants billed unduly long hours for relatively straightforward tasks and excessive hours for revising and redrafting documents. For example, counsel billed 2.8 hours when he "[b]egan drafting memorandum of law," another 2.1 hours when he "edited [it]," and then billed 2.7 hours and 3.5 hours when he "edited and continued drafting [it]." See, e.g., Billing Statement at 4-7 (billing over eleven hours to draft the memorandum of law and over seven hours for duplicative damages calculations by Tokarz and the paralegal assistants). No paying client would be willing to subsidize such inefficiencies, and the court should not require the defendants to do so either.
One acceptable method for "trimming the fat" from a fee application, and one that consumes fewer judicial resources than a painstaking review of each time-entry, is for the court to impose an "across-the-board percentage" cut of the total amount of time claimed. In re "Agent Orange" Prods. Liab. Litig., 818 F.2d 226, 237-38 (2d Cir. 1987). Under the circumstances of this case, I recommend reducing the number of hours billed by 30 percent. I therefore recommend an award of fees in the total amount of $7,486.50, as set forth below.
The plaintiffs seek the reimbursement of costs in the amount of $823.00, including the $400.00 filing fee, $370.00 for service fees, and $53.05 for various expenses. DE 45-12 (billing statement) at 8; see also 29 U.S.C. § 216(b) (authorizing an award of costs); NYLL § 663(1) (same). While the docket entry of March 30, 2015, conclusively establishes the payment of the filing fee, the plaintiffs have not submitted any records that establish the necessity or payment of the other claimed costs. I therefore respectfully recommend that the court award costs in the total amount of $400.00.
For the reasons set forth above, I respectfully recommend that the court grant the plaintiffs' motion for default judgment and enter judgment against all defendants jointly and severally in the amount of $26,153.53 (consisting of $8,247.50 in unpaid overtime wages; $8,247.50 in liquidated damages; $1,772.03 in prejudgment interest; $7,486.50 in reasonable attorneys' fees; and $400.00 in recoverable costs) as well as post judgment interest at the federal statutory rate pursuant to 28 U.S.C. § 1961.
I respectfully direct the plaintiffs to serve a copy of this Report and Recommendation on each defendant by certified mail, and to file proof of service no later than August 8, 2016. Any objections to this Report and Recommendation must be filed no later than August 22, 2016. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED. Dated: Brooklyn, New York
August 3, 2016
U.S. Magistrate Judge