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Saucedo v. On the Spot Audio Corp.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Dec 21, 2016
16 CV 00451 (CBA) (CLP) (E.D.N.Y. Dec. 21, 2016)

Summary

awarding Virginia & Ambinder the rate of $80.00 per hour for the work of litigation support professionals

Summary of this case from Thompson v. Hyun Suk Park

Opinion

16 CV 00451 (CBA) (CLP)

12-21-2016

JORGE SAUCEDO, Plaintiff, v. ON THE SPOT AUDIO CORP., d/b/a ON THE SPOT MOTO, and OSCAR TORRES, Defendant.


REPORT AND RECOMMENDATION POLLAK, United States Magistrate Judge:

On January 28, 2016, plaintiff Jorge Saucedo commenced this action against defendants On the Spot Audio Corp., d/b/a On the Spot Moto ("OTSM"), and Oscar Torres, seeking unpaid overtime and minimum wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL") § 650 et seq., as well as unpaid spread of hours wages and damages stemming from defendants' unlawful retention of gratuities and alleged failure to comply with the wage notice requirements under the NYLL. Despite proper service, defendants failed to answer or otherwise respond to the Complaint for several months. On May 17, 2016, plaintiff requested entry of a certificate of default, and on May 18, 2016, the Clerk of Court entered a certificate of default against both defendants. Thereafter, on June 2, 2016, plaintiff moved for a default judgment against the defendants, which motion was referred to the undersigned to issue a Report and Recommendation as to damages.

For the reasons set forth below, the Court respectfully recommends that the motion for default judgment be granted, and that plaintiff Saucedo be awarded $141,045.73 in damages and interest and $11,266.00 in counsel fees and costs for a total of $152,311.73.

FACTUAL BACKGROUND

Defendant OTSM is an auto detailing, motorcycle repair shop and carwash, located at 41-16 35th Avenue, Long Island City, N.Y. (Compl. ¶¶ 1, 19). Defendant Torres is alleged to be the president and/or owner of OTSM. (Id. ¶¶ 16, 18). According to the Complaint, Torres had the power to hire and fire employees, controlled and supervised employee work schedules and conditions of employment, and determined the rate and method of payment for the employees. (Id.) In addition, Torres is alleged to have been responsible for maintaining employment records. (Id.) Plaintiff alleges that OTSM and Torres were employers within the meaning of the FLSA. (Id. ¶¶ 18, 36, 37). See 29 U.S.C. § 203(d).

Citations to "Compl." refer to the plaintiff's Complaint, filed on January 28, 2016.

Plaintiff Saucedo is a resident of the State of New York who began working for defendants in or around December 2013. (Compl. ¶¶ 15, 21; Saucedo Decl. ¶ 1). According to the Complaint, Saucedo worked at OTSM through October 2015, primarily performing work painting, sanding and polishing cars in the OTSM shop. (Compl. ¶¶ 3, 4; Saucedo Decl. ¶¶ 1, 4).

Citations to "Saucedo Decl." refer to the Declaration of Jorge Saucedo, dated May 26, 2016.

Plaintiff alleges that he was required to work for defendants six days per week, approximately 66 to 72 hours per week, inclusive of a half hour meal break. (Compl. ¶ 22; Saucedo Decl. ¶ 9). For this work, the Complaint alleges that Saucedo was paid a fixed daily wage in cash, in the range of $60 to $80, regardless of the number of hours he actually worked. (Compl. ¶ 23; Saucedo Decl. ¶ 10). Despite regularly working more than 40 hours a week, plaintiff claims that he was never paid overtime or time and a half his regular hourly rate. (Saucedo Decl. ¶ 13). Saucedo also claims that even though he was required to work for more than 10 hours per day whenever he reported to work, he was never paid spread-of-hours pay. (Compl. ¶ 22; Saucedo Decl. ¶ 14).

Plaintiff further alleges that defendants unlawfully retained approximately 70% of his tips and that they failed to compensate him for his work at the applicable minimum wage. (Compl. ¶¶ 24, 25; Saucedo Decl. ¶ 15). Finally, the Complaint alleges that defendants failed to properly document and record the actual hours plaintiff worked and the amount he was paid in wages. (Compl. ¶ 28). In addition, defendants failed to provide plaintiff with the annual wage notices and accurate wages statements required by NYLL. (Id. ¶¶ 29, 30; Saucedo Decl. ¶ 12). Indeed, in his Declaration, Saucedo claims that he was paid in cash by Torres, typically on Saturdays, and he not only never received any paystubs, but he claims that Torres did not even record the hours that Saucedo worked. (Saucedo Decl. ¶ 12).

The Complaint contains seven causes of action: 1) claims for FLSA minimum wage and overtime compensation violations (First and Second Causes of Action, respectively, ¶¶ 33-41, 42-46); 2) claims for minimum wage and overtime violations under the NYLL (Third and Fourth Causes of Action, respectively, ¶¶ 47-58, 59-65); 3) a claim for unpaid spread of hours wages (Fifth Cause of Action ¶¶ 66-72); 4) a claim under NYLL §196-d for withholding plaintiff's tips (Sixth Cause of Action ¶¶ 73-78); and 5) a claim under NYLL §§ 195(1) and (3) for failing to provide plaintiff with a proper wage notice and for failing to provide a wage statement with every payment of wages. (Seventh Cause of Action ¶¶ 79-97).

The Court notes that the Complaint goes from paragraph 80 to paragraph 96 without any numbered paragraphs in between.

PROCEDURAL BACKGROUND

On January 28, 2016, plaintiff filed this action; defendant OTSM was served on February 2, 2016 through personal service on the New York Secretary of State pursuant to Section 306 of the Business Corporation Law. (See Coyle Aff., Ex. C). Defendant Torres was served on February 4, 2016 by personal service on a person of suitable age and discretion at Torres' residence; the individual who was served identified himself as Torres' co-tenant. (See id., Ex. D). On March 7, 2016, when neither of the defendants had responded to the Complaint, plaintiff's counsel sent a letter to the address of OTSM, addressed to defendant Torres, advising the defendants of the filing of this instant lawsuit and indicating that if defendants continued to ignore their obligation to respond by April 15, 2016, plaintiff would be forced to take action to obtain a default judgment. (Id., Ex. E). On May 18, 2016, when defendants still had not responded, plaintiff's counsel requested entry of a certificate of default against both defendants. The Clerk of Court entered default against the defendants on May 18, 2016. Plaintiff then filed the instant motion for default judgment on June 2, 2016.

Citations to "Coyle Aff." refer to the Affirmation of Leonor H. Coyle, Esq., dated June 2, 2016.

On June 16, 2016, the Honorable Carol B. Amon referred the motion to the undersigned to prepare a Report and Recommendation as to damages. As such, the Court makes its recommendations based on the documents filed in conjunction with the initial motion for default judgment.

DISCUSSION

I. Default Judgment

Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for entry of a default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party's default on the Clerk's record of the case. See id.; FED R. CIV. P. 55(a) (providing that "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default"). Second, after the Clerk of Court enters a default against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default judgment. See FED. R. CIV. P. 55(b).

The Second Circuit has cautioned that since a default judgment is an extreme remedy, it should only be entered as a last resort. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second Circuit has recognized the "push on a trial court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] . . . delay and clog its calendar," it has held that the district court must balance that interest with its responsibility to "[afford] litigants a reasonable chance to be heard." Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the "oft-stated preference for resolving disputes on the merits," default judgments are "generally disfavored," and doubts should be resolved in favor of the defaulting party. Id. Accordingly, a plaintiff is not entitled to a default judgment as a matter of right simply because a defendant is in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must "supervise default judgments with extreme care to avoid miscarriages of justice").

The Court has significant discretion to consider a number of factors in deciding whether to grant a default judgment, including: (1) whether the grounds for default are clearly established; (2) whether the claims were pleaded in the complaint, thereby placing the defendants on notice, see FED. R. CIV. P. 54(c) (stating "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings"); Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96; cf. King v. STL Consulting, LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that accrued during the pendency of a litigation, so long as the complaint put the defendant on notice that the plaintiff may seek such damages); and (3) the amount of money potentially involved - the more money involved, the less justification for entering the default judgment. Hirsch v. Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992). Additionally, "the Court may consider whether material issues of fact remain, whether the facts alleged in the complaint state a valid cause of action, whether plaintiff[s] ha[ve] been substantially prejudiced by the delay involved, and whether the default judgment may have a harsh effect on the defendant[s]." Pacific M. Int'l Corp. v. Raman Int'l Gems, Ltd., 888 F. Supp. 2d 385, 393 (S.D.N.Y. 2012) (internal citations omitted).

The burden is on the plaintiff to establish its entitlement to recovery. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993). When a default judgment is entered, the defendants are deemed to have admitted all well-pleaded allegations in the complaint pertaining to liability, but not as to damages. Id. Thus, the plaintiff must first establish the defendant's liability as a matter of law, for a defaulting defendant is not considered to have admitted to any legal conclusions. Advanced Capital Commercial Grp., Inc. v. Suarez, No. 09 CV 5558, 2013 WL 5329254, at *3 (E.D.N.Y. Sept. 20, 2013). It remains the plaintiff's burden to demonstrate that the uncontroverted facts establish the defendant's liability on each cause of action asserted. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). In doing so, however, the Court draws all "reasonable inferences from the evidence offered" in plaintiff's favor. Id. (quoting Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).

After demonstrating the defendant's liability, the plaintiff must also establish his entitlement to damages to a "reasonable certainty." Gunawan v. Sushi Sake Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012). While "the court must ensure that there is a basis for the damages specified in a default judgment, it may, but need not, make the determination through a hearing." Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), aff'd, 873 F.2d 38 (2d Cir. 1989). In the context of a default judgment brought for violations of the FLSA and the NYLL, "the plaintiff's recollection and estimates of hours worked are presumed to be correct." Gunawan v. Sushi Sake Rest., 897 F. Supp. 2d at 84-84.

II. Liability

Plaintiff's Complaint contains seven causes of actions seeking the following: (1) unpaid minimum wages under the FLSA; (2) unpaid overtime wages under the FLSA; (3) unpaid minimum wages under the NYLL; (4) unpaid overtime wages under the NYLL; (5) unpaid spread of hours wages under the NYLL; (6) unlawful retention of gratuities in violation of the NYLL; and (7) damages flowing from wage statement and pay stub violations under the NYLL. Each of these claims is addressed below. A. Liability Under the FLSA

To establish a claim under the FLSA, plaintiff must prove the following: (1) the defendant is an employer subject to the FLSA; (2) the plaintiff is an "employee" within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA. Edwards v. Community Enters., Inc., 251 F. Supp. 2d 1089, 1098 (D. Conn. 2003) (citing Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 295 (1985)).

1) Employer Subject to FLSA

A defendant is an "[e]nterprise engaged in commerce or in the production of goods for commerce" if the defendant is an enterprise that:

has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and . . . [whose] annual gross volume of sales made or business done is not less than $500,000.
29 U.S.C. § 203(s)(1)(A)(i)-(ii). An employer is subject to both the minimum wage and overtime provisions of the FLSA if either: (1) their employees are "engaged in commerce" or (2) the employer is an "enterprise engaged in commerce." 29 U.S.C. §§ 206, 207; see also Padilla v. Manlapaz, 643 F. Supp. 2d 298, 299 (E.D.N.Y. 2009). The statute defines "commerce" as "trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof." 29 U.S.C. § 203(b). These two methods of establishing FLSA coverage are known as "individual coverage" and "enterprise coverage," respectively. Jacobs v. New York Foundling Hosp., 483 F. Supp. 2d 251, 257 (E.D.N.Y. 2007).

Individual coverage is established where the employees themselves are "engaged in commerce." In determining whether this is the case, courts examine the employment actions of each employee asserting a claim. Padilla v. Manlapaz, 643 F. Supp. 2d at 300. Enterprise coverage, on the other hand, exists where an employer: (1) has employees engaged in commerce or in the production of goods for commerce; and (2) has an annual gross volume of sales greater than $500,000.00. 29 U.S.C. § 203(s)(1)(A).

Here, plaintiff specifically alleges that "[d]efendants' annual gross volume of sales made or business done is not less than $500,000." (Compl. ¶ 31). The Complaint further claims that "[d]efendants engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce." (Compl. ¶ 32). In addition, plaintiff has submitted a declaration stating that he would use diverse 3M products and Fabuloso cleaners for washing, waxing and painting the cars (Saucedo Decl. ¶ 6); and he has indicated that cars that he worked on would be delivered from New Jersey to New York to be bought, repaired, refurnished and resold by defendant. (Id. ¶ 7). Thus, plaintiff alleges that defendant OTSM was, at the relevant times, an employer engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA. (Id.)

In the context of a default under the FLSA, courts do not require any additional factual allegations to establish enterprise coverage. See, e.g., Fermin v. Las Delicias Peruanas Rest. Inc., 93 F. Supp. 3d 19, 33 (E.D.N.Y. Mar. 19, 2015) (finding a complaint which simply restated the statutory definition to be sufficient because it was "reasonable to infer that the myriad goods necessary to operate a . . . restaurant with an eat-in dining area and over $500,000.00 in annual sales do not exclusively come from New York State"). Thus, taking these allegations as true, as the Court must in the context of a default, the Court finds that plaintiff has established that defendant OTSM qualifies as an employer under the FLSA.

2) Individual Employer Doctrine

This action was brought against OTSM and the individually named defendant Torres. As for defendant Torres, plaintiff alleges that during the relevant period of time, Torres was the president and/or owner of OTSM, and that he had the power to set plaintiff's rate of pay, his work schedules, job duties, and all terms and conditions of plaintiff's employment. (Compl. ¶¶ 16-18, 37; Saucedo Decl. ¶¶ 2-3, 11-12, 15). 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). "Person" is defined as "an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." 29 U.S.C. § 203(a). To "employ" means "to suffer or permit to work." 29 U.S.C. § 203(g). An individual may be liable as an employer under the FLSA so long as he exercises "operational control" over the employee in question. See Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013), and individuals who are found to be "employers" under the FLSA may be held jointly and severally liable to the plaintiff. Moon v. Kwon, 248 F. Supp. 2d, 201, 237 (S.D.N.Y. 2002).

Based on the allegations in the Complaint regarding defendant Torres, plaintiff has adequately alleged the elements necessary to state a claim against Torres as an "employer," and thus, OTSM and defendant Torres would be jointly and severally liable to plaintiff.

3) Employees Within FLSA

Under the FLSA, an "employee" is "any individual employed by an employer." 29 U.S.C. § 203(e)(1); Edwards v. Community Enters., Inc., 251 F. Supp. 2d at 1098. The FLSA covers both "employees who in any workweek [are] engaged in commerce or in the production of goods for commerce" and those persons who are "employed in an enterprise engaged in commerce or in the production of goods for commerce . . ." 29 U.S.C. § 206(a). In determining whether a plaintiff is an "employee" within this definition, the "ultimate question is . . . 'whether, as a matter of economic reality, the worker[] depend[s] upon someone else's business for the opportunity to render service or [is] in business for [himself].'" Velu v. Velocity Exp., Inc., 666 F. Supp. 2d 300, 306 (E.D.N.Y. 2006) (quoting Godoy v. Restaurant Opportunity Ctr. of New York, Inc., 615 F. Supp. 2d 186, 192 (S.D.N.Y. 2009)).

As discussed above, plaintiff alleges in the Complaint that he was an employee engaged in commerce and/or in the production of goods for commerce, as defined by the FLSA, and employed by the defendants within this statutory meaning. (Compl. ¶¶ 3, 38; Saucedo Decl. ¶ 1).

In his memorandum filed in support of the default motion, plaintiff confirmed these allegations, and further explained that his hours, duties, and daily activities were controlled by the defendants. (Pl.'s Mem. at 4). Thus, "[i]t follows . . . that for purposes of this default, he qualifies as . . .[an] 'employee' under the FLSA." Garcia v. Badyna, No. 13 CV 4021, 2014 WL 4728287, at *5 (E.D.N.Y. Sept. 23, 2014). Additionally, the Court does not find any basis for exempting the employment relationship at issue from the FLSA's provisions. See 29 U.S.C. § 213(a) (setting forth the exemptions).

Citations to "Pl.'s Mem." refers to the Memorandum filed in support of the motion for default on June 2, 2016.

The Court notes that the burden of demonstrating that an employee falls within one of these exempted categories rests squarely with the employer. Chen v. Major League Baseball, 6 F. Supp. 3d 449, 454 (S.D.N.Y. 2014) (noting that the exemptions are affirmative defenses which an employer must prove). As defendants have failed to appear in this action, they have not availed themselves of any of the affirmative defenses provided for in the statute.

Plaintiff alleges that during the period of his employment, he was required to regularly work in excess of 40 hours per week. (Compl. ¶ 5). Specifically, plaintiff claims that he was required to work 6 days a week on a schedule that ran from 8:00 a.m. to 9:00 or 10:00 p.m., for a total of between 66 and 72 hours per week. (Saucedo Decl. ¶ 9). Plaintiff alleges that he was paid daily cash wages varying from $60 a day to $80 a day (id. ¶ 10), which amounts to a wage rate of less than the applicable minimum wage for the entire period of his employment. Plaintiff also claims that although he worked more than 40 hours per week, he was never compensated at the overtime rate for the hours worked over 40. (Id. ¶ 13).

Thus, because defendants are in default, the Court accepts as true plaintiff's uncontested allegations as to liability and respectfully recommends that plaintiff be deemed to have sufficiently set forth the necessary elements to state a claim under the FLSA against both the corporate defendant OTSM and against the individual defendant Torres. B. Liability Under the NYLL

Plaintiff also alleges that defendants violated the NYLL. The NYLL and the FLSA are analytically nearly identical. D'Arpa v. Runway Towing Corp., No. 12 CV 1120, 2013 WL 3010810, at *18 (E.D.N.Y. June 18, 2013). Like the FLSA, the NYLL establishes certain minimum wage rates and requires that employees be compensated at an overtime rate of one-and-one-half times their regular hourly pay for time worked in excess of 40 hours in a week. See N.Y. Lab. L. § 160; 12 N.Y.C.R.R. § 142-2.2; see also Noble v. 93 Univ. Place Corp., 303 F. Supp. 2d 365, 376 (S.D.N.Y. 2003).

Thus, to recover under the NYLL, plaintiffs must prove that they were "employees" and that the defendants were "employers" as defined by the statute. Lauria v. Heffernan, 607 F. Supp. 2d 403, 407-08 (E.D.N.Y. 2009). Unlike the FLSA, the NYLL does not require that a defendant achieve a certain minimum in annual sales or business in order to be subject to the law. See N.Y. Lab. L. § 651(6) (defining employer as "any individual, partnership, association, corporation, limited liability company, business trust, legal representative, or any organized group of persons acting as employer"). In making these determinations, New York courts focus on the degree of control the alleged employer exercised over the alleged employee, analyzing whether the employee: "(1) worked at his own convenience; (2) was free to engage in other employment; (3) received fringe benefits; (4) was on the employer's payroll; and (5) was on a fixed schedule." Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d at 34 (quoting Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 695, 802 N.E.2d 1090, 1095 (2003)). Any parties found to be employers under the NYLL are jointly and severally liable to plaintiff. See Tacuri v. Nithun Constr. Co., 14 CV 2908, 2015 WL 790060, at *5 (E.D.N.Y. Feb. 24, 2015); Karic v. Major Automotive Cos., 992 F. Supp. 2d 196, 200 (E.D.N.Y. 2014).

Similarly, under the New York Labor Law, an employee is defined as "any individual employed or permitted to work by an employer in any occupation." N.Y. Lab. L. § 651(5). In this case, plaintiff alleges that he was employed by defendants within the meaning of Section 651 of the NYLL. (See Compl. ¶ 51). The allegations set forth in plaintiff's Complaint, coupled with the information included in plaintiff's declaration, clearly establish that Saucedo was an employee of the defendants. Plaintiff was hired by defendant Torres, who managed the day-to-day operations of OTSM. (Compl. ¶¶ 16, 17, 55). Torres is alleged to have supervised plaintiff's work schedules and determined wage rates and methods of payment. (See id.). Plaintiff further alleges that defendants willfully failed to pay him minimum wages and overtime as prescribed by the NYLL (id. ¶¶ 56, 63), and willfully failed to pay spread of hours wages for each day that plaintiff worked over ten hours a day, in violation of the NYLL. (Id. ¶¶ 69-70; Saucedo Decl. ¶ 14). Moreover, plaintiff alleges that when he received tips or gratuities from customers, defendants retained approximately 70% of his tips, in violation of the NYLL. (Compl. ¶ 24; Saucedo Decl. ¶ 15). Plaintiff claims that he was paid in cash and that when he was paid, the defendants failed to provide him with a wage statement that listed the hourly rate of pay, overtime pay, and the basis of computing straight pay and overtime pay, as required by the NYLL. (Compl. ¶ 96; Saucedo Decl. ¶ 12). Finally, he alleges that when he began working for defendants, plaintiff never received a wage notice as required by NYLL § 195(1). (Compl. ¶ 80).

Accordingly, based on these uncontested allegations, the Court respectfully recommends that plaintiff be deemed to have adequately alleged the elements necessary to state a claim against defendants under the NYLL. C. Statute of Limitations - Willfulness

The FLSA generally provides for a two-year statute of limitations for enforcement of its provisions. 29 U.S.C. § 255(a). This limitations period may be extended to three years, however, upon a showing that an employer's violation of the FLSA was willful. Id. An employee bringing suit bears the burden of demonstrating that the violations were willful. Porter v. New York Univ. Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004).

Here, plaintiff has simply alleged at the end of each cause of action that defendants' conduct "was willful." (See Compl. ¶¶ 45, 57, 64, 71, 77). The courts are divided on whether such conclusory allegations are sufficient to establish the legal element of willfulness. Compare Lopez v. Yossi's Heimishe Bakery Inc., No. 13 CV 5050, 2015 WL 1469619, at *8 (E.D.N.Y. Mar. 30, 2015) (holding that plaintiffs' allegations that defendants failed to pay them wages as required under the FLSA and NYLL were merely conclusory and therefore insufficient to establish willfulness under the FLSA); Solis v. Tally Young Cosmetics, LLC, No. 09 CV 4804, 2011 WL 1240341, at *5 (E.D.N.Y. Mar. 4, 2011), report and recommendation adopted, 2011 WL 1240108 (E.D.N.Y. Mar. 30, 2011) (finding conclusory allegations insufficient to establish that the violations were willful), with Guaman v. Krill Contracting, Inc., No. 14 CV 4242, 2015 WL 3620364, at *5 (E.D.N.Y. June 9, 2015) (holding that plaintiff adequately pleaded that defendant's violations were willful where the complaint alleged that the defaulting defendants' failure to pay plaintiff overtime wages for hours worked beyond forty hours was willful); Herrera v. Tri-State Kitchen and Bath, Inc., No. 14 CV 1695, 2015 WL 1529653, at *6 (E.D.N.Y. Mar. 31, 2015) (finding that even such conclusory allegations, coupled with a defendant's default, can serve to establish willfulness for purposes of extending the statute of limitations).

In this case, given the defendants' default, coupled with the amount of wages allegedly paid to Mr. Saucedo, which were significantly below the applicable minimum wage rates in effect at the time, the Court finds that plaintiff has adequately alleged willful violations of the FLSA, and therefore, defendants may be held liable for those violations which occurred on or after January 28, 2013, three years before the instant action was filed. Since plaintiff's claims date back to December 6, 2013, when he first started working for defendants, his claims are covered by the FLSA's three-year statute of limitations.

See discussion infra at Section II(B)(2).

Similarly, because actions to recover damages flowing from a violation of the NYLL must be brought within six years of the violation, NYLL § 663, defendants may be held liable for any violations that occurred on or after January 28, 2000, six years before the instant lawsuit was filed. Thus, plaintiff's claims here are covered under the NYLL's statute of limitations.

II. Remedy

A. Default Determination

Based upon a review of the allegations in the Complaint, which are undisputed at this time, and for the reasons stated herein, the Court finds that plaintiff has sufficiently established liability as to warrant entry of a default judgment for damages.

Here, it is beyond dispute that defendants are in default. The corporate defendant, OTSM, is in default because it never filed an answer nor did it retain an attorney to represent the corporation in this action. The failure of a corporate defendant to obtain counsel constitutes a failure to defend because a corporation cannot proceed pro se in federal court. See Shapiro, Bernstein & Co. v. Cont'l Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam) (stating that "it is settled law that a corporation cannot appear other than by its attorney"); see also Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 192 (2d Cir. 2006); Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (discussing the rationale for requiring corporations, as "artificial" entities, to appear only through counsel). Defendant Torres also failed to appear and answer or otherwise respond to the Complaint. See Hirsch v. Innovation Int'l, Inc., 1992 WL 316143, at *2 (holding that "[defendant's] default is crystal clear - it does not even oppose this motion [for entry of default judgment]").

Here, defendants' failure to respond to the Complaint warrants the entry of a default judgment. Given the numerous opportunities afforded to defendants, and their failure to participate in these proceedings, the Court finds no compelling reason to delay further. Accordingly, it is respectfully recommended that default judgment be entered against defendants OTSM and Torres. B. Damages

1) Legal Standard

Having determined that plaintiff has established that defendants constitute a "single employer" for purposes of the FLSA, and both are liable for damages flowing from FLSA and NYLL violations on or after December 2013, which is when Mr. Saucedo began working at OTSM, the Court now must determine whether plaintiff has established his damages to a "reasonable certainty." Gunawan v. Sushi Sake Rest., 897 F. Supp. 2d at 83. While a defendant's failure to pay minimum wages and overtime violates both the FLSA and the NYLL, a plaintiff may only recover damages under one statute, as "double recovery of the same wages and related damages is not permitted." Gonzales v. Gan Israel Pre-Sch., No. 12 CV 6304, 2014 WL 1011070, at *11 (E.D.N.Y. Mar. 14, 2014). Courts will thus award damages under whichever statute would allow for greater recovery. Id.

As noted supra, when a default judgment is entered, the defendants are deemed to have admitted all well-pleaded allegations in the Complaint pertaining to liability. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158; Montcalm Publ'g Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992) (citing United States v. Di Mucci, 879 F.2d 1488, 1497 (7th Cir. 1989)); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65; Deshmukh v. Cook, 630 F. Supp. 956, 959-60 (S.D.N.Y. 1986). However, the plaintiff must still prove damages in an evidentiary proceeding at which the defendants have the opportunity to contest the claimed damages. See Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158. "'While a default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation.'" Levesque v. Kelly Commc'ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993) (quoting Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)).

When a court enters a default judgment and the amount of damages sought does not consist of a sum certain, Rule 55(b) of the Federal Rules of Civil Procedure provides that "[t]he Court may conduct hearings or make referrals - preserving any federal statutory right to a jury trial - when, to enter or effectuate judgment, it needs to . . . determine the amount of damages." Fed. R. Civ. P. 55(b)(2)(b). While "the court must ensure that there is a basis for the damages specified in a default judgment, it may, but need not, make the determination through a hearing." Fustok v. Conticommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988) (collecting cases), aff'd, 873 F.2d 38 (2d Cir. 1989).

In this case, defendants have not answered the Complaint or appeared before the Court. Since defendants are in default, plaintiff's evidence on damages is undisputed. As an initial matter, plaintiff's Declaration and submissions as to the hours worked and rate of pay received are sufficient bases for this Court to recommend an award of damages, even in the absence of further documentation.

Under the FLSA, an employee-plaintiff generally "has the burden of proving that he performed work for which he was not properly compensated." Santillan v. Henao, 822 F. Supp. 2d 284, 293-94 (E.D.N.Y. 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded on other grounds by 29 U.S.C. § 251, et seq). The Supreme Court in Anderson v. Mt. Clemens Pottery Co. noted, however, that "employees seldom keep . . . records [of hours worked] themselves; even if they do, the records may be and frequently are untrustworthy." 328 U.S. at 687. By defaulting, defendants have "deprived the plaintiff of the necessary employee records required by the FLSA, thus hampering plaintiff's ability to prove his damages." Santillan v. Henao, 822 F. Supp. 2d at 294. In default cases, the Supreme Court has held that "an employee has carried out his 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." Tran v. Alphonse Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687), overruled on other grounds, Slayton v. Am. Express Co., 460 F.3d 216 (2d Cir. 2006).

In light of this holding, courts in this Circuit have held that where a defendant-employer defaults, a plaintiff may meet this burden of proof "by relying on his recollection alone." Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005). Otherwise, defendants in FLSA cases would stand to benefit from choosing not to cooperate with discovery or litigation efforts, and "[o]ne should not be permitted to profit by its own wrongful act." Boyke v. Superior Credit Corp., No. 01 CV 0290, 2006 WL 3833544, at *5 (N.D.N.Y. Dec. 28, 2006) (citing 29 U.S.C. § 211(c), which requires that employers "make, keep, and preserve . . . records of the persons employed by him and of the wages, hours, and other conditions and practices of employment"); see also Park v. Seoul Broad. Sys. Co., No. 05 CV 8956, 2008 WL 619034, at *7 (S.D.N.Y. Mar. 6, 2008) (holding that courts should apply a "special burden-shifting standard" where employers fail to comply with this statutory duty of record keeping).

New York law also requires that employers keep various, detailed employment records. Like the FLSA, the NYLL requires that employers keep employment records in their course of business relating to employees' rates of pay, hours, dates of work, and payroll, among other information. See N.Y. Lab. L. § 195(1)(a) (requiring an employer to "provide his or her employees, in writing . . . a notice containing . . . the rate or rates of pay thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other allowances"); N.Y. Lab. L. § 195(2) (requiring employers to notify employees of any changes in the pay day prior to changing the pay day); N.Y. Lab. L. § 195(3) (employers must "furnish each employee with a statement with every payment of wages, listing . . . the dates of work . . . gross wages; deductions; allowances, if any claimed as part of the minimum wage; and net wages"); N.Y. Lab. L. § 195(4) (requiring employers to "establish, maintain[,] and preserve for not less than three years payroll records showing the hours worked, gross wages, deductions and net wages for each employee"). Thus, where the defendant has failed to maintain proper records, the burden of proving that plaintiff was paid properly falls on the defendant. See Marin v. JMP Restoration Corp., No. 09 CV 1384, 2012 WL 4369748, at *6 (E.D.N.Y. Aug. 24, 2012) (explaining that "[t]o determine NYLL overtime damages, courts use the same burden-shifting scheme employed in FLSA actions").

Thus, under both federal and state laws, defendant-employers have an obligation to keep records, and by virtue of defendants' default, plaintiff's "recollection and estimates of hours worked are presumed to be correct." Liu v. Jen Chu Fashion Corp., No. 00 CV 4221, 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004); accord Chao v. Vidtape, 196 F. Supp. 2d 281, 293-94 (E.D.N.Y. 2002). Courts have applied this same presumption of correctness to a plaintiff's recollection of wages earned. See, e.g., Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d at 84.

Here, because defendants did not meet their obligation to provide plaintiff with records, the only evidence offered to support plaintiff's claim that he was paid less than he was entitled to under the law is based on plaintiff's statements. Given that the defendants have not appeared in this action to challenge plaintiff's claims, the Court finds plaintiff's evidence as to hours worked and wages paid credible, and bases its recommendation on plaintiff's recollection.

2) Minimum Wage Claims

An employer who fails to meet minimum wage obligations under the FLSA and the NYLL "shall be liable to the employee or employees affected in the amount of their unpaid minimum wages . . . and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b); see 12 N.Y.C.R.R. § 143-1.3. Mr. Saucedo alleges that, for the entire duration of his employment, he did not receive the statutorily prescribed minimum wage.

Under the NYLL, the applicable minimum hourly wage rates for the time periods at issue in this matter were as follows: (1) $7.25 an hour for the period December 6, 2013 until December 31, 2013 when the rate increased to $8.00 an hour; (2) $8.00 an hour for the period from December 31, 2013 to December 30, 2014 when the rate increased to $8.75 an hour; and (3) $8.75 from December 31, 2014 until October 15, 2015, when his employment terminated. N.Y. Lab. L. § 652(1). Under the FLSA, the applicable minimum hourly wage rate was $7.25 from July 24, 2009 on. 29 U.S.C. § 206(1). Both statutes specify that, where the other statute prescribes a higher minimum wage, the higher wage shall control: in this case, the wage rates provided by the NYLL were higher throughout plaintiff's employment. See 29 U.S.C. § 218(a); N.Y. Lab. L. § 652(1). Thus, the Court applies the applicable minimum wage rates for the relevant times that Mr. Saucedo worked for OTSM at the rates prescribed under the NYLL.

Although plaintiff has not specified in his Declaration when in December 2013, he began working, nor has he specified the exact date that he stopped work in October 2015, the chart summarizing his damages indicates a start date of December 6, 2013 and an end date of October 15, 2015. (Coyle Aff., Exh. H). Accordingly, the Court has awarded damages beginning with December 6, 2013 when the applicable minimum wage rate was $7.25 per hour.

In his Declaration, Mr. Saucedo alleges that he began working for the defendants from December 2013 through October 2015, and worked six days a week, for an average of 69 hours per week. (Saucedo Decl. ¶¶ 1, 9). According to his Declaration, he received between $60.00 to $80.00 per day for the entire period for which he seeks wages, but he has not specified in his Declaration when his wages increased from $60 to $80 a day. (Id. ¶ 8). Even so, it appears from the numbers provided in the attachment to the Motion for Default Judgment that plaintiff calculated the amount of wages he was paid weekly - $360 - based on his claim that he was initially paid $60 a day and worked six days a week. (Coyle Aff., Exh. H). In the numbers provided in the attachment, plaintiff calculated damages owed per week based on an average 11.5 hours worked per day or 69 hours worked per week. (Id.) Thus, using the weekly pay figure of $360 divided by 69 hours, Mr. Saucedo was paid based on an hourly wage rate of $5.22 during the first period of his employment. (Id.) Since the minimum wage during this period was $7.25 an hour until December 31, 2013, defendants underpaid plaintiff at the rate of $2.03 an hour.

This figure was calculated by dividing Saucedo's weekly pay of $360.00 by the 69 hours Saucedo worked each week.

During the period from January 1, 2014 until December 31, 2014, when the minimum wage increased to $8.00 an hour under the NYLL, defendants underpaid plaintiff at the rate of $2.78 per hour. This deficiency was calculated using the same weekly pay of $360 divided by the same number of hours worked - 11.5 hours per day, six days a week. On December 31, 2014, the minimum wage rate increased again to $8.75 per hour. Thus, under the same assumptions that plaintiff worked for 11.5 hours a day and was paid at a weekly rate of $360, plaintiff was underpaid by $3.53 during the period from January 1, 2015 to January 31, 2015.

From the numbers provided in the attachment to plaintiff's default motion, it appears that in February 2015, defendants increased plaintiff's daily wages to $70, and accordingly his weekly wages increased to $420, assuming the same number of hours worked. (Id.) Using this weekly pay of $420, plaintiff's hourly rate of pay was $6.09 per hour, meaning that he was underpaid by $2.66 per hour because the minimum wage was $8.75 for this period. This rate only lasted from February 1, 2015 through February 26, 2015, at which time defendants appear to have increased his rate of pay again to $80 per day. Thus, for this last period, he received $480 per week, which would equal an hourly rate of pay of $6.96 per hour, assuming the same number of hours worked. (Id.) According to the chart, he continued to be paid at this rate until his employment terminated on October 15, 2015, resulting in an underpayment of minimum wages of $1.79 per hour during this final period when the minimum wage was $8.75 an hour.

Although the pay increases were not specified in plaintiff's Declaration, the Court has used them in calculating damages because crediting defendants with the higher pay rates results in a lower award to plaintiff than he would have received had he continued to be paid at the rate of $60 a day for the entire period of his employment.

Set forth below in Table 1 is a summary of the rates paid during these various periods compared with the minimum wage rates set forth in the NYLL, along with the amounts owed to plaintiff.

Table 1: Minimum Wages Owed


Dates ofEmployment

HoursWorked

HourlyRatesPaid

MinimumWage Rateunder theNYLL

Difference

TotalAmountOwed/Week

Total forPeriod

12/6/13-12/31/13

69

$5.22

$7.25

$2.03

$81.30

$290.37

1/1/14-12/31/14

69

$5.22

$8.00

$2.78

$111.30

$5,787.83

1/1/15-1/31/15

69

$5.22

$8.75

$3.53

$141.30

$605.59

2/1/15-2/26/15

69

$6.09

$8.75

$2.66

$106.52

$380.43

2/27/15-3/25/15

69

$6.96

$8.75

$1.79

$71.74

$266.46

3/26/15-10/15/15

69

$6.96

$8.75

$1.79

$71.74

$2,080.43

TotalMinimumWagesOwed

$9,411.11

Using the applicable minimum wage rates and salary paid during each period of employment, the Court recommends that plaintiff Saucedo be awarded a total of $9,411.11 in unpaid minimum wages for the period running from December 6, 2013 to October 15, 2015.

3) Overtime Claims

Plaintiff Saucedo also alleges violations of the FLSA and NYLL based on defendants' failure to pay overtime for the hours worked over 40 in a week.

Under both the FLSA and NYLL, an employee is entitled to overtime pay, calculated at one and one-half times the employee's regular rate, for hours worked in excess of 40 hours in one work week. See 29 U.S.C. § 207(a)(2)(C); N.Y. Lab. L. § 663(3); 12 N.Y.C.R.R. § 146-1.4. The method for calculating overtime under both the FLSA and NYLL is the same. Although plaintiff was not paid overtime in violation of both the FLSA and the New York labor Law, he is not entitled to recover double damages under both the FLSA and the NYLL. See Janus v. Regalis Constr., Inc., 11 CV 5788, 2012 WL 3878113, at *7 (E.D.N.Y. July 23, 2012), report and recommendation adopted, 11 CV 5788, 2012 WL 3877963 (E.D.N.Y. Sept. 4, 2012); Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 264 n.4 (S.D.N.Y. 2008).

The FLSA states that overtime pay should calculated based on the employee's regular rate of pay or the minimum wage, whichever is greater. See 29 U.S.C. § 207; 29 C.F.R. § 778.107. New York law also requires that employees be compensated at "one and one-half times the employer's regular rate of pay" and provides that the regular rate should be calculated "in the manner and methods provided in" the FLSA. 12 N.Y.C.R.R. § 142-2.2. The Code of Federal Regulations explains that the term "regular rate of pay" should be interpreted to mean the higher of the employee's hourly rate and minimum wage under either state or federal law: "Where a higher minimum wage than that set in the Fair Labor Standards Act is applicable to an employee by virtue of such other legislation, the regular rate of the employee, as the term is used in the Fair Labor Standards Act, cannot be lower than such applicable minimum, for the words "regular rate at which he is employed" as used in section 7 must be construed to mean the regular rate at which he is lawfully employed." 29 C.F.R. § 778.5; see Santana v. Latino Express Restaurants, Inc., No. 15 CV 4934, 2016 WL 4059250, at *4 (S.D.N.Y. July 28, 2016) (calculating overtime wages due to plaintiff under both the FLSA and NYLL by using the state minimum wage rate: "During Plaintiff's employment at the Restaurant, the New York minimum wage rate was $8.75 per hour. Plaintiff's overtime rate was one and one-half times her normal wage rate of $8.75, or $13.125"); Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 126 (E.D.N.Y. 2011) (holding that "[u]npaid overtime wages are calculated by multiplying the New York minimum wage rate or the FLSA minimum wage rate, whichever is higher, by 0.5 to determine the additional amount owed per hour over 40 hours worked").

As explained in Table 1 above, plaintiff was paid at the rate of $5.22 from December 6, 2013 to January 31, 2015, at the rate of $6.09 from February 1, 2015 until February 26, 2015, and at the rate of $6.96 per hour for the remainder of his employment. While the minimum wage rates under both the NYLL and FLSA were always greater than his regular rate of pay, the Court has recommended an award of overtime based on the minimum wage rates in effect under the NYLL for each period. Thus, plaintiff's overtime rate of pay is based on one and a half times the NYLL minimum wage rate for each period. In recommending these rates, the Court has considered that minimum wage rates under the NYLL increased at various times during this period while the rate applicable under the FLSA remained at $7.25 per hour.

See discussion infra at Section II(B)(2).

According to plaintiff Saucedo's Declaration, he was employed at OTSM beginning on December 6, 2013 until October 15, 2015, working 69 hours a week and receiving a flat rate of $360.00 per week, which was increased to $420.00 per week in February 2015, and then again to $480.00 on February 26, 2015. (Coyle Aff., Exh. H). He claims that throughout this entire time, he never received any overtime pay. (Id.) Thus, the Court finds that plaintiff is entitled to overtime wages under the NYLL for the entire period of his employment.

Crediting plaintiff's testimony that he worked 69 hours per week for the entire period, the Court finds that Saucedo worked 29 hours each week in overtime for which he was entitled to receive overtime compensation. Thus, the Court has determined Saucedo's unpaid overtime wages for these hours by multiplying the number of unpaid overtime hours each week (29) by the number of weeks plaintiff worked and the applicable overtime rate of pay. Using the time periods and rates of pay set forth in plaintiff's Declaration, plaintiff Saucedo is entitled to receive overtime payments at the following rates for every hour over 40 that he worked:

Table 2: Unpaid Overtime Wages


Period

MinimumWage Rateunder theNYLL

OvertimeRate of Pay

Hours ofOvertimeWorked PerWeek

Weeks inPeriod

OvertimeOwed forPeriod

12/6/13 -12/31/13

$7.25

$10.88

29

3.57

$1,125.89

1/1/14 -12/31/14

$8.00

$12.00

29

52

$18,096.00

1/1/15 -1/31/15

$8.75

$13.13

29

4.29

$1,632.88

2/1/15 -2/26/15

$8.75

$13.13

29

3.57

$1,358.83

2/27/15 -3/25/15

$8.75

$13.13

29

3.71

$1,412.12

3/26/15 -10/15/15

$8.75

$13.13

29

29

$11,038.13

TotalOvertimeOwed

$34,663.85

Accordingly, the Court respectfully recommends that plaintiff Saucedo be awarded $34,663.85 in unpaid overtime for the period between December 6, 2013 and October 15, 2015.

4) NYLL Spread of Hours Pay

Under the NYLL, an employee is entitled to earn an additional hour of pay at the minimum wage for each day on which that employee works more than ten hours. 12 N.Y.C.R.R. § 146-1.6(a). The statute specifies that compensation will be at the applicable minimum wage "regardless of a given employee's regular rate of pay." 12 N.Y.C.R.R. § 146-1.6(d).

Plaintiff has alleged that he worked over ten hours a day, six days a week for every day on which he worked. (Compl. ¶¶ 27, 68; see also Saucedo Decl. ¶ 14). As defendants have failed to introduce any evidence to the contrary, the Court has credited the undisputed allegations contained in the Complaint, plaintiff's Declaration, and documents filed in support of the motion for default. To determine the spread of hours pay owed to plaintiff for each period, the Court multiplied the minimum wage for the relevant period by the number of days plaintiff worked over ten hours (an average of 6 per week) and then multiplied that figure by the number of weeks in the period.

Accordingly, the Court respectfully recommends that plaintiff be awarded spread of hours wages in the following amounts:

Chart 3: Unpaid Spread of Hours Wages


Period

Minimum Wage

Days Workedover TenHours perWeek

Weeks perPeriod

Total Spread ofHours Pay Owed

12/6/13-12/31/13

$7.25

6

3.57

$155.30

1/1/14-12/31/14

$8.00

6

52

$2,496.00

1/1/15-1/31/15

$8.75

6

4.29

$225.23

2/1/15-2/26/15

$8.75

6

3.57

$187.43

2/27/15-3/25/15

$8.75

6

3.71

$194.78

3/26/15-10/15/15

$8.75

6

29

$1,522.50

TotalSpread ofHours PayOwed

$4,781.22

Accordingly, the Court respectfully recommends that plaintiff be awarded a total of $4,781.22 in unpaid spread of hours wages.

5) Unlawfully Retained Gratuities

Since the Court considers tip credit an affirmative defense, the Court did not consider tips in calculating the minimum wages owed to plaintiff. Kleitman v. MSCK Mayain Olam Habba Inc., No. 11 CV 2817, 2013 WL 4495671, at *3 (E.D.N.Y. Aug. 20, 2013) (citing Chung v. New Silver Palace Restaurant, Inc., 246 F.Supp.2d 220, 229 (S.D.N.Y.2002)) (holding that, "[w]hen tips are retained by the employer, the "tip credit" cannot be used to meet the required minimum wage").

Plaintiff seeks damages in the form of gratuities that he claims were wrongfully withheld by defendant Torres. Specifically, he claims that Torres retained approximately 70% of his tips, leaving plaintiff with only $90 a week in tips. (Pl.'s Mem. at 7). Pursuant to Section 196(d) of the NYLL, "gratuities" are considered wages and it is prohibited for an employer "or his agent . . . [to] demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." Plaintiff claims that he is entitled to be reimbursed for all gratuities that he earned that were withheld by his employer.

Accordingly, plaintiff calculated the amount of gratuities owed by multiplying the amount of tips that he claims were unlawfully retained, $210 per week, by the number of weeks for which he seeks unpaid wages, approximately 96 weeks, to arrive at the total of $20,190.00. (See Pl.'s Mem. at 7; Coyle Aff., Exh. H). Given defendants' default and their decision not to challenge plaintiff's damages claims, the Court respectfully recommends that plaintiff be awarded $20,190.00 in unlawfully retained gratuities.

6) Rate of Pay Notification Under the NYLL

Plaintiff also seeks damages due to defendants' alleged failure to issue written pay stubs or notices of plaintiff's rate of pay, in violation of N.Y. Lab. L. §§ 195 and 198. (See Compl. ¶¶ 80-97; Pl.'s Mem. at 16). Plaintiff claims that he is entitled to damages for violations of each provision of Section 195, specifically Sections 195(1) and 195(3), or the statutory maximum of $5,000, pursuant to Sections 198(1-b) and 198(1-d) of the NYLL. (Pl.'s Mem. at 7-8).

Sections 195(1)(a) and 195(3) of the NYLL went into effect on April 9, 2011, prior to plaintiff's employment. Section 195(1) (a) of the NYLL requires that every employer provide his or her employees, at the time of hiring, and on or before February 1st of each subsequent year of the employee's employment, with a notice containing the following information: the rate 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 191; 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, as well as 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). Section 195(3) requires that every employer provide his or her employees with "a statement with every payment of wages," listing various information including the dates of work covered by the payment, information identifying the employer and employee, details regarding the rate of pay and the overtime rate of pay, and the number of hours worked. N.Y. Lab. L. § 195(3).

Since these sections of the NYLL went into effect on April 9, 2011, and plaintiff was employed for more than 25 weeks after that date, plaintiff is entitled to receive damages under both sections 195(1)(a) and 195(3) of the statute. Plaintiff claims that he never received notice of his rate of pay, basis of pay, etc., as required by Section 195(1)(a) for the entire period of his employment. (Pl.'s Mem. at 6-7). If notice as required by Section 195(1)(a) is not provided to an employee, under N.Y. Lab. L. § 198(1-b) (as effective February 27, 2015), an employee may recover $50 per work week for which defendants violated Section 195(1)(a) up to a statutory maximum of $2,500. Accepting plaintiff's allegations that he never received the written notices required by Section 195(1)(a) as true, the Court finds that plaintiff is entitled to recover $50 per week for defendants' violation of Section 195(1)(a). In addition, the Court accepts plaintiff's allegations that he did not receive notice of his rate of pay, etc. in violation of Section 195(3). If notice as required by Section 195(3) is not provided to the employee, under N.Y. Lab. L. § 198(1-d) (effective February 27, 2015), an employee may recover $100 for each week that defendants violated that provision, up to a statutory maximum of $2,500. Accordingly, the Court finds that he is entitled to recover an additional $100 per week for defendants' violation of Section 195(3).

The maximum number of weeks for which a plaintiff could receive an award under this statutory provision is 25 weeks. See N.Y. Lab. L. § 198(1-d).

Although the Court notes that N.Y. Lab. L. § 198 has been amended effective January 19, 2016, courts in this district have not applied this revision retroactively to violations that occurred prior to January 19, 2016. See Chen v. JP Standard Constr. Corp., No. 14 CV 1086 , 2016 WL 2909966, at *13 (E.D.N.Y. Mar. 18, 2016), report and recommendation adopted, No. 14 CV 1086, 2016 WL 2758272 (E.D.N.Y. May 12, 2016) (applying the version of Section 198(1-d) and Section 198(1-b) in effect at the time of plaintiff's hiring); Saldana v. New Start Grp., Inc., No. 14 CV 4049, 2016 WL 3683530, at *1 (E.D.N.Y. July 6, 2016) (holding that, "the recent revisions to the WTPA have not been applied retroactively by federal courts").

In this case, the violations of Sections 195(1)(a) and 195(3) spanned a total of 96 weeks for which plaintiff seeks damages. Although courts are permitted to grant damages for violations of the notice and statement provisions of Section 195 individually, the statutory maximum for violating each provision of Section 195 under the NYLL is $2,500. Jiaren Wei v. Lingtou Zhengs Corp., No. 13 CV 5164, 2015 WL 739943, at *12 (E.D.N.Y. Feb. 20, 2015) (citing Jaramillo v. Banana King Rest. Corp., No. 12 CV 5649, 2014 WL 2993450, at *6-7 (E.D.N.Y. July 2, 2014) (holding that, in a motion for default judgment brought under the NYLL, the plaintiff was "entitled to receive the statutory maximum of $2,500.00 in damages for the employer's failure to provide required notice and an additional $2,500.00 in damages for the employer's failure to provide required statements for plaintiff's entire employment period of 61 weeks")).

Thus, the Court respectfully recommends that plaintiff be awarded the statutory maximum of $5,000 for defendants' violations of Sections 195(1)(a) and 195(3) of the NYLL.

7) Liquidated Damages Under the FLSA and NYLL

In addition to compensatory damages, plaintiff seeks liquidated damages pursuant to both federal and state law. See 29 U.S.C. § 216(b); N.Y. Lab. L. § 663(1). Under the FLSA, an employer who fails to pay his or her employees the minimum wage or overtime compensation required by Sections 206 and 207 is "liable to the employee . . . affected in the amount of [his or her] unpaid minimum wages, or [his or her] unpaid overtime compensation . . . and in an additional equal amount as liquidated damages," 29 U.S.C. § 216(b), unless the employer can demonstrate that he or she acted in good faith and had reasonable grounds for believing that the act or omission in proper payment was not a violation of the FLSA. Jemine v. Dennis, 901 F. Supp. 2d 365, 388 (E.D.N.Y. 2012) (citing 29 U.S.C. §§ 216(b), 260). This award serves as "compensation to the employee occasioned by the delay in receiving wages caused by the employer's violation of the FLSA." Id. (quoting Herman v. RSR Secs. Servs., Ltd., 172 F. 3d 132, 141-42 (2d Cir. 1999)). Since the defendants have defaulted and not demonstrated that they acted in good faith in failing to pay overtime to plaintiff, the Court finds that plaintiff is entitled to an award of liquidated damages under the FLSA.

Similarly, under the NYLL, an employee is entitled to receive liquidated damages unless the employer provides a good faith basis for believing he or she was in compliance with the law. N.Y. Lab. Law § 198(1-a); see Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14 CV 10234, 2016 WL 4704917, at *15 (S.D.N.Y. Sept. 8, 2016) (citing Gold v. N.Y. Life Ins. Co., 730 F.3d 137, 144 (2d Cir. 2013) (holding that, "As of November 24, 2009, an employee was entitled to NYLL liquidated damages 'unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law'")). In the absence of proof of a good faith basis, plaintiff is entitled to recover liquidated damages "equal to one hundred percent of the total of such underpayments found to be due." Gold v. N.Y. Life Ins. Co., 730 F.3d at 144 (holding that the amendments to the NYLL that went into effect on April 9, 2011, raising the amount of liquidated damages recoverable under the statute, could not be applied retroactively); see also N.Y. Lab. L. § 663(1).

Although the Court finds that plaintiffs may be entitled to an award of liquidated damages under both the NYLL and the FLSA, the Court respectfully recommends that plaintiffs not be awarded cumulative liquidated damages for any overlapping claims for the three year period covered by FLSA. Originally, the rationale for permitting plaintiffs to recover double liquidated damages was that the two statutes' liquidated damages provisions served different purposes. See, e.g., Gunawan v. Sake Sushi Restaurant, 897 F. Supp. 2d 76, 90 (E.D.N.Y. 2012). Indeed, until recently, district courts in this circuit disagreed as to whether a plaintiff may be awarded cumulative awards of liquidated damages under both statutes. Compare Asfar v. BBQ Chicken Don Alex No. 1 Corp., No. 14 CV 5665, 2016 WL 1276417, at *2 (E.D.N.Y. Mar. 29, 2016) (denying double liquidated damages); and Gortat v. Capala Bros., 949 F. Supp. 2d 374, 381 (E.D.N.Y. 2013) (holding that "the distinction between compensatory and punitive for characterizing liquidated damages under the FLSA and NYLL . . . exalt[s] form over substance, and also [is] not persuasive" and denying plaintiff's request for double liquidated damages under both statutes), with Griffin v. Astro Moving & Storage Co. Inc., No. 11 CV 1844, 2015 WL 1476415, at *6 (E.D.N.Y. Mar. 31, 2015) (holding that plaintiff may be awarded liquidated damages under both the NYLL and FLSA because they serve different purposes).

However, in a Summary Order issued on December 7, 2016, the Second Circuit interpreted the NYLL to preclude the recovery of double liquidated damages under both the NYLL and FLSA. Chowdhury v. Hamza Express Food Corp., No. 15 CV 3142, 2016 WL 7131854, at *2 (2d Cir. Dec. 7, 2016) (stating that, "whatever reasons existed to award liquidated damages under the relevant provisions of both the FLSA and the NYLL before 2010, we read the subsequent amendments to the NYLL provision, which brought it into substantial conformity with the FLSA provision, as having eliminated those reasons. Today the NYLL and FLSA liquidated damages provisions are identical in all material respects, serve the same functions, and redress the same injuries. In the absence of any indication otherwise, we interpret the New York statute's provision for liquidated damages as satisfied by a similar award of liquidated damages under the federal statute").

Accordingly, because the law is clear that plaintiffs "may recover under the statute which provides the greatest amount of damages," Charvac v. M & T Project Managers of New York, Inc., No. 12 CV 05637, 2015 WL 5475531, at *4 (E.D.N.Y. June 17, 2015) (quoting Jiao v. Shi Ya Chen, No. 03 CV 0165, 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007)), report and recommendation adopted as modified, No. 12 CV 5637, 2015 WL 5518348 (E.D.N.Y. Sept. 17, 2015); Wicaksono v. XYZ 48 Corp., No. 10 CV 3635, 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) (holding that where plaintiffs have prevailed under both state and federal law, "the law providing the greatest recovery will govern"), report and recommendation adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011)); Maldonado v. La Nueva Rampa, Inc., No. 10 CV 8195, 2012 WL 1669341, at *5 (S.D.N.Y. May 14, 2012), the Court respectfully recommends that plaintiff be awarded liquidated damages pursuant to the NYLL. The NYLL provides the greater recovery in liquidated damages for plaintiff because the NYLL allows plaintiff to recover liquidated damages for all claims brought under the NYLL, including the spread of hours wages owed to plaintiff, while the FLSA only provides liquidated damages for claims brought under the FLSA - in this case, only the claims for unpaid minimum wage and unpaid overtime wage owed. Moreover, the NYLL allows for the recovery of both liquidated damages and pre-judgment interest, discussed infra Section II(b)(8), for claims brought under the NYLL, while the FLSA does not allow plaintiffs to recover pre-judgment interest. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999).

Although the FLSA also limits damages to three years before the claim accrued, this period includes the entirety of the period for which plaintiff seeks damages (December 6, 2013 to October 15, 2015). Therefore, the time limit for recovery under the FLSA would not, on its own, reduce the damages available to plaintiffs as compared to the NYLL.

As listed in Charts 1 and 2 above, plaintiff Saucedo is owed a total of $44,074.96 in unpaid minimum and overtime wages for claims brought under the NYLL for the period between December 6, 2013 until October 15, 2015. Under the NYLL, plaintiff is also entitled to liquidated damages equal to 100% of spread of hours wages and statutory wage notice violations, which amount to $9,781.22. Accordingly, it is respectfully recommended that plaintiff be awarded liquidated damages in the total amount of $53,856.18 for the period of his employment.

8) Prejudgment Interest

Finally, plaintiff seeks to recover prejudgment interest on all damages awarded under the NYLL, calculated at a rate of 9% per annum pursuant to New York law. See N.Y.C.P.L.R. § 5004. The Second Circuit has held that, as liquidated damages and prejudgment interest are not functional equivalents under the NYLL, prevailing plaintiffs may recover both for claims brought under the NYLL. Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir.1999). Where plaintiffs receive damages under both the FLSA and the NYLL, prejudgment interest accrues on any damages for which liquidated damages are not awarded under the FLSA; pre-judgment interest may not be awarded under the NYLL in addition to liquidated damages for violations of the FLSA. See Santillan v. Henao, 822 F. Supp. 2d 284, 298 (E.D.N.Y. 2011). Here, because the Court has recommended that plaintiff receive damages only under the NYLL, plaintiff is entitled to prejudgment interest on: (1) plaintiff's unpaid minimum wages and overtime wages; (2) plaintiff's spread of hour wages; and (3) plaintiff's withheld gratuities. However, plaintiff is not entitled to prejudgment interest on amounts awarded under the Wage Theft Prevention Act. See N.Y. Lab. L. §§ 195(1)-(3); see also Dominguez v. B S Supermarket, Inc., No. 13 CV 7247, 2015 WL 1439880, at *18-19 (E.D.N.Y. Mar. 27, 2015) (only awarding prejudgment interest on unpaid wages for which plaintiff was compensated under state law and not on damages awarded for defendants' failure to issue written notice of plaintiff's rate of pay in violation of NYLL § 195(3)).

Plaintiffs have not specified a date from which they seek prejudgment interest on their damages under the NYLL. Pre-judgment interest under New York Law is governed by Section 5001 of the New York Civil Practice Law and Rules, which states: "Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred." N.Y. C.P.L.R. § 5001(b). In addition, "[w]here such 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. However, where, as here, violations of the NYLL occur over an extended period of time, courts calculate prejudgment interest from a "single reasonable intermediate date." N.Y. CPLR § 5001(b). See, e.g., Wicaksono v. XYV 48 Corp., No. 10 CV 3635, 2011 WL 2022644, at *9 (S.D.N.Y. May 2, 2011) (holding that, "[t]he plaintiffs have calculated prejudgment interest from the midway point of each plaintiff's employment, which is a reasonable approach").

Given the various time periods involved for each of plaintiffs' claims, the Court has selected the following date as the accrual point for prejudgment interest: November 11, 2014, which marks the midway point in the period for which plaintiff seeks damages, from December 6, 2013 to October 15, 2015. The amounts owed are calculated in Chart 4 below:

Chart 4: Prejudgment Interest on NYLL Claims


Total Award

Per DiemInterest

Accrual Date

Days BetweenAccrual andR&R(12/21/2016)

Total Interestto Date of R&R

$69,046.18

17.03

11/11/2014

772

$13,143.37

Thus, the Court finds that plaintiff is owed pre-judgment interest in the amount of: $13,143.37.

9) Attorneys' Fees and Costs

Plaintiff seeks to recover an award of "reasonable attorney's fees and costs" (see Pls.' Mem. at 16), pursuant to the applicable provisions of the FLSA and the NYLL. See 29 U.S.C. § 216(b); N.Y. Lab. L. § 663(1). In accordance with New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), plaintiff's counsel has submitted an affidavit (the "Coyle Affidavit"), along with contemporaneous billing records, setting forth the dates and amount of time during which services were rendered, the hourly rate at which the services were charged, along with the name of the attorney performing the work and a description of services performed. (See Coyle Aff., Ex. I). Plaintiff's counsel has also submitted a bill of costs incurred in connection with the instant action. (Id.)

a. Attorneys' Fees

Courts employ the "lodestar" method in calculating reasonable attorneys' fees, multiplying the number of hours reasonably spent by counsel on the matter by a reasonable hourly rate. See Perdue v. Kenny A., 559 U.S. 542, 546, 551-52 (2010); Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008); Cowan v. Ernest Codelia, P.C., No. 98 CV 5548, 2001 WL 30501, at *7 (S.D.N.Y. Jan. 12, 2001), aff'd, 50 F. App'x 36 (2d Cir. 2002). Although there is a "strong presumption that this amount represents a reasonable fee," the resulting lodestar figure may be adjusted based on certain other factors. Cowan v. Ernest Codelia, P.C., 2001 WL 30501 at *7; Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999).

i. Reasonable Hourly Rate

When assessing whether legal fees are reasonable, the Court determines the "presumptively reasonable fee" for an attorney's services by looking to what a reasonable client would be willing to pay. See Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d at 183. To calculate the presumptively reasonable fee, a court must first determine a reasonable hourly rate for the legal services performed. Id. In Arbor Hill, the Second Circuit adopted the following factors to guide the court's inquiry as to what constitutes a reasonable hourly rate:

1) the time and labor required; 2) the novelty and difficulty of the questions; 3) the level of skill required to perform the legal service properly; 4) the preclusion of employment by the attorney due to acceptance of the case; 5) the attorney's customary hourly rate; 6) whether the fee is fixed or contingent; 7) the time limitations imposed by the client or the circumstances; 8) the amount involved in the case and the results obtained; 9) the experience, reputation, and ability of the attorneys; 10) the "undesirability" of the case; 11) the nature and length of the professional relationship with the client; and 12) awards in similar cases . . . .
Id. at 187 n.3 (citation omitted). A number of courts within the Second Circuit have applied these factors when awarding attorney's fees. See, e.g., Manzo v. Sovereign Motor Cars, Ltd., No. 08 CV 1229, 2010 WL 1930237, at *7 (E.D.N.Y. May 11, 2010); Adorno v. Port Auth. of New York & New Jersey, 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010); Cruz v. Henry Modell & Co., Inc., No. 05 CV 1450, 2008 WL 905351, at *3 (E.D.N.Y. Mar. 31, 2008).

Courts are also instructed to balance:

the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively . . ., the timing demands of the case, whether the attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether the attorney might have initially acted pro bono . . ., and other returns (such as reputation, etc.) the attorney might expect from the representation
Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d at 184; see also Heng Chan v. Sung Yue Tung Corp., No. 03 CV 6048, 2007 WL 1373118, at *2 (S.D.N.Y. May 8, 2007). In awarding attorney's fees, the Court is guided by the fact that default actions are relatively simple legal matters, while taking into account the attorney's degree of skill and the Court's own experience dealing with similar claims.

In this case, plaintiff was represented by Virginia & Ambinder LLP (the "Firm"). Plaintiffs seek: (1) an hourly rate of $395.00 for the work of Leonor Coyle, Esq., a senior associate in the Firm's wage and hour practice; and (2) an hourly rate of $350.00 for the work of Maria Tokarz, Esq., a forensic accountant who has been employed for five years by the Firm. (Coyle Aff. ¶¶ 32-33). The Firm also seeks an hourly rate of $125.00 for the work performed by assorted other individuals, whom the Court has assumed are paralegals. (Id. Ex. I).

The billing records provided list the initials of the following individuals as billing at an hourly rate of $125.00: GS, IN, CI, MN, and IP. Having reviewed the various tasks performed by these six individuals, the Court believes these individuals to be paralegals or other litigation support staff.

Based on the Court's knowledge of the rates generally charged in this district for this type of work in connection with FLSA and NYLL cases, the Court finds that the rate of $395.00 per hour for the work of Ms. Coyle is significantly higher than the rates ordinarily awarded to senior associates in this district. Cortes v. Warb Corp., No. 14 CV 7562, 2016 WL 1266596, at *6 (E.D.N.Y. Mar. 15, 2016), report and recommendation adopted, No. 14 CV 7562, 2016 WL 1258484 (E.D.N.Y. Mar. 30, 2016) (holding that, [w]ithin this District, the following rates have been endorsed as reasonable: $300.00-$450.00 for partners, $200.00[-]$300.00 for senior associates, and $100.00[-]$200.00 for junior associates"); Herrera v. TriState Kitchen & Bath, Inc., No. 14 CV 1695, 2015 WL 1529653, at *15 (E.D.N.Y. Mar. 31, 2015) (awarding a rate of $250 an hour in a FLSA case to a senior associate with seven years of experience); Chopen v. Olive Vine, Inc., No. 12 CV 2269, 2015 WL 1514390, at *15 (E.D.N.Y. Mar. 13, 2015) (awarding $350 to a wage and hour practitioner with 19 years of experience); Tacuri v. Nithin Constr. Co., No. 14 CV 2908, 2015 WL 790060, at *13 (E.D.N.Y. Feb. 24, 2015) (awarding $275 to a senior associate who had been practicing law since 2001); Tacuri v. Nithin Constr. Co., No. 14 CV 2908, 2015 WL 790060, at *13 (E.D.N.Y. Feb. 24, 2015) (holding that, "[o]pinions from this district have determined that a reasonable hourly rate for a senior associate ranges from $200.00 to $300.00"). Considering the fact that Ms. Coyle is a senior associate with about ten years of legal experience, the Court finds that a reasonable fee for Ms. Coyle's work is $300.00 per hour. (Coyle Aff. ¶ 32).

The $125.00 hourly rate for litigation support staff is also significantly higher than rates traditionally awarded in this district. See, e.g., Gunawan v. Sushi Sake Rest., 897 F. Supp. 2d at 95 (awarding paralegals fees at a rate of $75 per hour); Ferrara v. PI Trucking Corp., No. 11 CV 0661, 2011 WL 7091562, at *4 (E.D.N.Y. Dec. 20, 2011) (awarding hourly rate of $90 for the work of a paralegal); Finkel v. Alltek Sec. Sys. Group, Inc., No. 10 CV 4487, 2011 WL 4543498, at *10 (E.D.N.Y. Aug. 26, 2011), report and recommendation adopted as modified, 2011 WL 4543495 (E.D.N.Y. Sept. 29, 2011) (approving hourly rate of $80-90 for work performed by paralegal). Accordingly, the Court recommends that plaintiffs be compensated at the rate of $80.00 per hour for the work of litigation support professionals in connection with this action.

Finally, the Firm seeks fees in the amount of $350.00 an hour for the work of Maria Tokarz, a forensic accountant employed by the Firm for over 5 years. (Id. ¶ 33). Ms. Tokarz has worked on FLSA cases before the Eastern District of New York on several occasions and courts within this district have awarded her the paralegal rate as a non-attorney working on the case: "Maria Tokarz is a senior forensic accountant at V & A who has experience with wage and hour and wage theft investigations. . . . This Court has previously awarded Tokarz the paralegal rate as a non-attorney who worked on the case. . . . Not being provided with any argument or support to the contrary, I respectfully recommend that Tokarz' rate be reduced to $75.00 per hour." Cardoza v. Mango King Farmers Mkt. Corp., No. 14 CV 3314, 2015 WL 5561033, at *16 (E.D.N.Y. Sept. 1, 2015) (citing Huerta v. Bakery, No. 10 CV 4754, 2012 WL 1100647, at *15 (E.D.N.Y. Feb. 17, 2012), report accepted in part, rejected in part, on other grounds, Huerta v. Victoria Bakery, No. 10 CV 4754, 2012 WL 1107655 (E.D.N.Y. Mar. 30, 2012) (reducing the hourly rate awarded to Maria Tokarz from $125 to $75, the rate awarded to other non-attorneys on the case). The Court accordingly awards Ms. Tokarz the paralegal rate for non-attorneys of $80.00 per hour.

ii. Reasonable Number of Hours

The next step in awarding attorney's fees is determining the reasonableness of the hours expended by counsel. See, e.g., LaBarbera v. Empire State Trucking, Inc., No. 07 CV 669, 2008 WL 746490, at *4-5 (E.D.N.Y. Feb. 26, 2007). In reviewing a fee application, the court "should exclude excessive, redundant or otherwise unnecessary hours." Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433-35, 440 (1983)). If the court finds "that some of the time was not reasonably necessary . . . it should reduce the time for which compensation is awarded accordingly." Louis Vuitton Malletier, S.A. v. LY USA, Inc., 676 F.3d 83, 111 (2d Cir. 2012); see also Struthers v. City of New York, No. 12 CV 242, 2013 WL 5407221, at *8-9 (E.D.N.Y. Sept. 25, 2013) (reducing fees because the fees requested for responding to motion papers were "excessive"); Jemine v. Dennis, 901 F. Supp. 2d 365, 393 (E.D.N.Y. 2012) (reducing requested fees by 10% because the "quality and complexity of the submissions and calculations" did not reflect the hours expended); Ehrlich v. Royal Oak Fin. Servs., No. 12 CV 3551, 2012 WL 5438942, at *3-4 (E.D.N.Y. Nov. 7, 2012) (reducing attorneys' fees because the attorney's litigation of the suit made apparent his "lack of experience" and for duplicative entries); Quinn v. Nassau Cnty. Police Dep't., 75 F. Supp. 2d 74, 78 (E.D.N.Y. 1999) (reducing one attorney's fees by 20% and another's by 30% for unnecessary and redundant time); American Lung Ass'n v. Reilly, 144 F.R.D. 622, 627 (E.D.N.Y. 1992) (finding that the "use of so many lawyers for relatively straightforward legal tasks was excessive and led to duplication of work," and deducting 40% of plaintiffs' lawyer's hours).

Rather than itemizing individual entries as excessive, the court may make an "across-the-board reduction, or percentage cut, in the amount of hours." T.S. Haulers, Inc. v. Cardinale, No. 09 CV 451, 2011 WL 344759, at *3 (E.D.N.Y. Jan. 31, 2011) (citing Green v. City of New York, 403 F. App'x 626, 630 (2d Cir. 2010)). Similarly, courts routinely apply across-the-board reductions for vague entries. See, e.g., Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (affirming district court's 20% reduction in attorneys' fees for "vagueness, inconsistencies, and other deficiencies in the billing records"); Moore v. Diversified Collection Servs., Inc., No. 07 CV 397, 2013 WL 1622949, at *4 (E.D.N.Y. Mar. 19, 2013) (reducing attorney's fees by 10% due to the "vagueness and incompleteness" of some of the entries); Tucker v. Mukasey, No. 03 CV 3106, 2008 WL 2544504, at *2 (S.D.N.Y. June 20, 2008) (reducing fees by 30% in part because although some entries were detailed, others were vaguely worded or inconsistent); Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 396-97 (S.D.N.Y. 2000) (concluding that "the vagueness of some of the time records prevents the Court from determining why plaintiffs were required to expend so many hours on these tasks" and accounting for this factor by reducing fees by 15%); Cabrera v. Fischler, 814 F. Supp. 269, 290 (E.D.N.Y. 1993) (reducing fees by 30% for vague entries with insufficient descriptions of work performed), rev'd in part & remanded on other grounds, 24 F.3d 372 (2d Cir. 1994), cert. denied, 513 U.S. 876 (1994).

As noted above, the Firm has submitted contemporaneous billing records, setting forth the dates and amount of time during which services were rendered, the hourly rate at which the services were charged, and the names of the individuals who provided these services, along with a description of services performed. In total, Ms. Coyle billed 29.9 hours of work, Ms. Tokarz billed 2.5 hours of work, and the other litigation support staff and paralegals have collectively billed 21.2 hours of work. (See Coyle Aff., Ex. I).

Having reviewed the entries in the documents provided, the Court finds that the billing records are not objectively unreasonable, particularly in light of the need for translation to communicate with the plaintiffs, questions with respect to the proper address for service, and other concerns. As such, the Court finds no need to reduce the hours for which plaintiffs seek fees.

In light of the rates discussed above, therefore, the Court respectfully recommends that fees be awarded as following: (1) $8,970.00 for the 29.9 hours of work performed by Ms. Coyle, at an hourly rate of $300.00; (2) $200.00 for the 2.5 hours of work performed by Ms. Tokarz, at an hourly rate of $80.00; and (3) $1,696.00 for the 21.2 hours of work conducted by all paralegals and litigation support specialists, at an hourly rate of $80.00. This amounts to a total award of $10,866.00 in attorneys' fees.

b. Costs

Plaintiff has also requested $588.57 in costs, representing the filing fee in this district, an unspecified amount for service of process fees, and three entries for eLegal research. In support of its application for fees, plaintiff's counsel submitted client cost ledgers specifying the type of fees and research conducted, but did not attach invoices for the costs. (Coyle Aff. Ex. I).

Although the invoice does not explicitly state how much was paid in a filing fee nor does it identify any charge as the "filing fee," the invoice describes a charge as "Summons complaint for On the Spot Moto in EDNY," dated 1/28/2016 - the date the Complaint was filed. Therefore, the Court assumes that this description is a reference to the filing fee. (Coyle Aff., Ex. I). --------

Pursuant to 28 U.S.C. § 1988, a prevailing party may recover certain costs, such as filing fees and service of process fees. See Anderson v. City of New York, 132 F. Supp. 2d 239, 245 (S.D.N.Y. 2001). Section 1988 allows for recovery of a broader range of costs than 28 U.S.C. § 1920, permitting a party to recover those costs which are "ordinarily charged to clients in the legal marketplace." Id. Importantly, however, the party moving for costs bears the burden of demonstrating the reasonableness of each charge; failure to provide adequate documentation of costs incurred will limit, or even defeat, recovery. See, e.g., Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Mgmt., No. 04 CV 2293, 2009 WL 5185808 at *9-10 (E.D.N.Y. Dec. 23, 2009) (reducing award of costs where certain costs were not properly documented); Rotella v. Board of Educ. of City of New York, No. 01 CV 434, 2002 WL 59106 at *5 (E.D.N.Y. Jan. 17, 2002) (declining to award costs which would ordinarily be recoverable under § 1988 because of plaintiff's failure to support demands with adequate documentation).

No receipts have been submitted for the filing fee or for other expenses totaling $588.57. While the Court takes judicial notice of the filing fee in this district, see Joe Hand Promotions v. Elmore, No. 11 CV 3761, 2013 WL 2352855 at *12 (E.D.N.Y. May 29, 2013) (taking judicial notice of the filing fee for this court); Phillip Morris USA, Inc. v. Jackson, 826 F. Supp. 2d 448, 453 (E.D.N.Y. 2011) (same), the Court cannot simply accept at face value the ledger that plaintiffs' counsel created without any additional evidence of the costs alleged therein.

Accordingly, the Court respectfully recommends that plaintiffs be awarded $400 in costs, representing the filing fee for this Court, but that the remaining requested $188.57 in other costs be denied in the absence of supporting documentation.

CONCLUSION

In light of the foregoing, the Court respectfully recommends that plaintiffs be awarded damages in the following amounts:

(1) $9,411.11 in unpaid minimum wages;

(2) $34,663.85 in unpaid overtime;

(3) $4,781.22 in unpaid spread of hours wages;

(4) $20,190.00 in unlawfully retained gratuities;

(5) $5,000 to plaintiff for violations of the wage notice provisions of the NYLL;

(6) $53,856.18 in liquidated damages;

(7) $13,143.37 in prejudgment interest, to the date of this Report and Recommendation;

(8) $10,866.00 in attorneys' fees; and

(9) $400 in costs.

In total, therefore, the Court respectfully recommends that plaintiff be awarded $141,045.73 in damages and interest, and $11,266.00 in counsel fees and costs for a sum total of $152,311.73.

Any objections to this Report and Recommendation must be filed with the Clerk of the Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. Failure to file objections within the specified time waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e), 72; Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008).

Plaintiff is directed to serve a copy of this Order promptly by certified mail, return receipt requested, on defendants and to provide the Court with copies of the return receipts.

The Clerk is directed to send copies of this Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.

Dated: Brooklyn, New York

December 21, 2016

/s/ Cheryl L. Pollak

Cheryl L. Pollak

United States Magistrate Judge

Eastern District of New York


Summaries of

Saucedo v. On the Spot Audio Corp.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Dec 21, 2016
16 CV 00451 (CBA) (CLP) (E.D.N.Y. Dec. 21, 2016)

awarding Virginia & Ambinder the rate of $80.00 per hour for the work of litigation support professionals

Summary of this case from Thompson v. Hyun Suk Park
Case details for

Saucedo v. On the Spot Audio Corp.

Case Details

Full title:JORGE SAUCEDO, Plaintiff, v. ON THE SPOT AUDIO CORP., d/b/a ON THE SPOT…

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: Dec 21, 2016

Citations

16 CV 00451 (CBA) (CLP) (E.D.N.Y. Dec. 21, 2016)

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