Rana v. Islam
OPINION, the damages order is vacated in part and remanded, per curiam DJ, RDS, BDP, copy to pro se Appellant, FILED. [16-3966]
Case 16-3966, Document 105-1, 04/06/2018, 2273425, Page1 of 10
Rana v. Islam, Prova
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2017
MASHUD PARVES RANA,
‐ v. ‐
FAHIMA TAHSINA PROVA,
ARGUED: OCTOBER 24, 2017
DECIDED: APRIL 6, 2018
JACOBS, SACK, and PARKER, Circuit Judges.
Plaintiff‐Appellee Mashud Parves Rana brought this action against his
former employers, Monirul Islam and Fahima Tahsina Prova, alleging violations
of various state and federal labor and human trafficking laws. Over a 15‐month
period, the defendants defied numerous orders of the district court (Sidney H.
Stein, Judge), and the district court granted Rana’s motion to strike the
defendants’ answer and enter a default judgment. Defendant Islam, pro se,
appeals the district court’s damages order. We vacate in part and remand
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because cumulative liquidated damages may not be awarded for the same course
of conduct under both the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §
201 et seq., and the New York Labor Law (“NYLL”), NYLL §§ 190 et seq. & 650 et
D. BRETT KOHLHOFER (Matthew Larrabee,
on the brief), Dechert, LLP, New York, N.Y.
and Washington, D.C., for Appellee
Mashud Parves Rana.
MONIRUL ISLAM, pro se.
Mashud Parves Rana filed a complaint against his former employers,
defendant‐appellant Monirul Islam and defendant Fahima Tahsina Prova,
alleging, inter alia, that his employment conditions violated the Trafficking
Victims Protection Reauthorization Act (“TVPRA”), 18 U.S.C. § 1589 et seq., the
Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq., the New York
Labor Law (“NYLL”), N.Y. Lab. L. §§ 190 and 650 et seq., and the common law of
torts. After the defendants ignored five district court orders to participate in
discovery, and used other dilatory tactics, the district court (Sidney H. Stein,
Judge) granted Rana’s motion pursuant to Federal Rule of Civil Procedure 37 to
strike the defendants’ answer and enter a default judgment. Following a
damages inquest, the district court awarded Rana $922,597.31.1 Islam, pro se,
The district court awarded damages as follows:
New York Minimum Wage: $24,834.50
NYLL Overtime: $85,911.39
NYLL Spread of Hours: $3,931.75
NYLL Liquidated Damages: $114,677.64
FLSA Liquidated Damages: $66,062
Breach of Contract: $9,047.96
Recordkeeping Violations: $5,000
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appeals the district court’s damages calculation, arguing chiefly that there were
no damages because Rana was not mistreated.
While Islam fails to raise any meritorious arguments, the case presents an
issue that has split district courts in this Circuit. We conclude that, because New
York Labor Law does not call for awards of NYLL liquidated damages on top of
liquidated damages under the FLSA, district courts may not award cumulative
liquidated damages for the same course of conduct under both statutes. We
therefore vacate in part and remand to amend the liquidated damages
Rana, a Bangladeshi national, alleged that he was employed as a domestic
worker by Islam and Prova (who are married) for almost nineteen months. Islam
is a Bangladeshi diplomat who was serving as the Consul General of Bangladesh
in New York City during the time of Rana’s employment.
Rana alleged that the defendants hired him in Bangladesh, promising good
working conditions and a monthly wage of $3,000. But once Rana arrived in the
U.S., the defendants seized his passport and visa, confined him to their
apartment, and subjected him to “slavery‐like conditions,” including:
Requiring work from 6:30 am to 11:00 pm, at a minimum, seven days a
week, without days off.
Not paying Rana for his services.
Inflicting physical abuse: Islam hit Rana twice, once for asking if he would
ever receive his salary, and again when Rana told Islam that he did not
want to follow him to his next posting in Morocco.
Inflicting verbal abuse and threats of violence.
Emotional Distress: $241,200
Damages Offset: ($13,005)
Punitive Damages: $316,309.96
Prejudgment Interest: $68,627.11
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Forcing Rana to sleep on a mattress on the kitchen floor in one apartment,
and in a storage room in another.
Giving Rana nothing but expired or leftover food to eat.
On March 2, 2014, Rana fled the defendants’ apartment while they were out, and
made a report at a New York City Police precinct.
Rana filed suit against the defendants on March 21, 2014, and Islam and
Prova, through counsel, moved to dismiss the complaint. Islam’s affidavit
denied that he mistreated Rana, and advised that he had relocated to
Bangladesh’s Embassy in Morocco. The district court denied the defendants’
motion to dismiss.
Following denial of the motion to dismiss, proceedings were slowed by
defendants’ tactics. Between May 2015 and May 2016:
Islam and Prova filed their answer three months late.
Islam and Prova failed to make initial disclosures, respond to
interrogatories, appear for depositions, or produce documents in
compliance with the district court’s scheduling order, all despite receiving
Islam and Prova failed to respond to an order to inform the district court
as to: whether the defendants would participate in discovery; whether
Islam had plans to either leave Morocco to be deposed, or if Moroccan
government officials would allow him to be deposed in country; or when
Prova could be deposed in New York or London.
After two years of discovery, Islam and Prova produced a single
document: a personal letter Islam sent to the court denying that he and
Prova abused Rana.
The district court warned Islam and Prova five times between May 2015 and May
2016 that failure to comply with discovery orders could result in sanctions‐‐with
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Defendants’ counsel moved to withdraw. After initially denying that
motion, the district court granted it because the ʺdefendants’ continuing failure
to cooperate in this litigation has rendered it unreasonably difficult for [counsel]
to continue the representation.ʺ Rana v. Islam, No. 14‐CV‐1993(SHS), 2016 WL
859859 at *1 (S.D.N.Y. March 1, 2016). On May 12, 2016, the district court granted
Rana’s motion to strike Islam’s answer, entered a default judgment pursuant to
Fed. R. Civ. P. 37, and set a damages inquest for September 7, 2016‐‐at which the
defendants again failed to appear, despite being notified.
At the damages inquest, in addition to Rana’s testimony, Rana’s physician
testified that he had post‐traumatic stress disorder, major depressive disorder,
panic attacks, and generalized anxiety disorder, while his psychologist testified
that he had post‐traumatic stress disorder and major depressive disorder. The
psychologist also testified that Rana has nightmares about his abuse, dissociative
reactions (in which he believes he is back at Islam and Prova’s apartment), fears
trusting anyone, has lost interest in hobbies and social interactions, is unable to
relate to anyone but his mother and sister, and has diminished interest in life.
After the damages inquest, the district court issued findings of fact and
conclusions of law, and granted Rana $922,597.31 in damages. Of importance for
this appeal, the district court granted NYLL liquidated damages of $114,677.64,
along with FLSA liquidated damages of $66,062.
After being granted “the maximum extension allowable” under the law to
appeal, Islam filed a pro se appeal from the September 26, 2016 damages order
“award[ing] damages of $922,597.31 in favour of Rana against Islam and Prova.”
Supp. App’x at 565, 567. In addition to general denials about Rana’s treatment,
Islam raises multiple arguments for why the district court’s damages calculation
is incorrect. All of Islam’s arguments are either totally unsupported and
unsubstantiated, or are based on documents outside the record.
In response, Rana raises three arguments. First, he argues that this Court
lacks jurisdiction to review the default judgment, and that in any event, the grant
of default was not an abuse of discretion. Second, the damages calculation is not
clearly erroneous, and the grant of punitive damages was not an abuse of
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discretion. Third, the defendants should not be identified as pro se litigants
because Islam is a high‐ranking Bangladeshi government official who was
represented for most of the district court proceedings.
We lack jurisdiction to review the default judgment. Our jurisdiction to
hear an appeal is limited by Fed. R. App. 3(c), which requires that a notice of
appeal “designate the judgment, order, or part thereof being appealed.” Fed. R.
App. 3(c)(1)(B); see also Gonzalez v. Thaler, 565 U.S. 134, 147 (2012) (“We have
held that Rule 3ʹs dictates are jurisdictional in nature.” (internal citation and
quotation marks omitted)). Islam’s notice of appeal states that he appeals “from
the . . . order entered on September 26, 2016 that . . . [a]ward[s] damages of
$922,597.31 in favour of Rana against Islam and Prova.” Supp. App’x at 567. We
“construe notices of appeal liberally, taking the parties’ intentions into account.”
Meilleur v. Strong, 682 F.3d 56, 60 (2d Cir. 2012) (internal citation and quotation
marks omitted). We are especially lenient with regard to pro se litigants. See
Elliot v. City of Hartford, 823 F.3d 170, 172 (2d Cir. 2016) (“[A] notice of appeal
filed by a pro se litigant must be viewed liberally, and not every technical defect
in a notice of appeal constitutes a jurisdictional defect.” (internal citation and
quotation marks omitted)). Even with a pro se litigant, however, jurisdiction
“depends on whether the intent to appeal from [a] decision is clear on the face of,
or can be inferred from, the notice of appeal.” New Phone Co. v. City of N.Y.,
498 F.3d 127, 131 (2d Cir. 2007); see also Kowsh v. Bd. of Elections, 99 F.3d 78, 80
(2d Cir. 1996) (per curiam) (“The Federal Rules of Appellate Procedure require
that an appellant specify in his notice of appeal the order or decision of which
review is sought.”). The notice of appeal does not permit an inference that Islam
intended to appeal from the underlying default judgment; the default judgment
came in an opinion and order issued on May 12, 2016, and did not award any
damages. See Kowsh, 99 F.3d at 80 (the court lacked jurisdiction over judgment
beyond discrete portion referenced in the notice of appeal). Accordingly, we
only review the district court’s damages award.
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We review a district court’s factual findings and damages calculation for
clear error, and applicable questions of law de novo. Brown v. C. Volante Corp.,
194 F.3d 351, 356 (2d Cir. 1999); Delchi Carrier SpA v. Rotorex Corp., 71 F.3d
1024, 1029 (2d Cir. 1995). The imposition of punitive damages is reviewed for
abuse of discretion. Design Strategy, Inc. v. Davis, 469 F.3d 284, 302 (2d Cir.
Islam only raises factual challenges to the damages calculation, and these
arguments are either entirely unsupported, or depend on documents that are
outside the record on appeal.2 We decline to consider extra‐record assertions and
documents. See Fed. R. App. P. 10(a)(1); Loria v. Gorman, 306 F.3d 1271, 1280 n.2
(2d Cir. 2002) (“Ordinarily, material not included in the record on appeal will not
be considered.”); Weinstock v. Columbia Univ., 224 F.3d 33, 46 (2d Cir. 2000)
(Evidence that is “not part of the record . . . cannot be considered in deciding this
case.” (internal citation omitted)).
The district court’s damages calculation is sound: the district court fully
examined the record, sua sponte examined Rana under oath, and provided
detailed findings supporting its calculations, including finding that Rana
suffered a host of psychological harms. However, one issue needs to be decided
in order to resolve a split among the district courts of this Circuit. The district
Islam claims that: [i] he placed “around $30,000” in a TD Bank account for Rana,
in addition to loaning Rana’s family $25,000 in Bangladesh, Appellant’s Br. at 16;
[ii] any claim that Rana worked overtime is false because Rana worked only two
to three hours a day, fewer than six days a week; [iii] liquidated damages are a
harsh punishment conjured up by lawyers to squeeze a grieving family (Islam’s
son died in New York in October 2012); [iv] there could be no breach of contract
because the wage agreement was made on “good‐faith” only, id. at 17; [v] there
can be no record‐keeping violation because Rana received proof of payments
deposited in a TD Bank account for him; [vi] Rana enjoyed his time living with
the defendants, so he could not have suffered emotional distress; and [vii] any
damages offset, punitive damages, and interest is “fake and made‐up,” id. at 18.
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court granted Rana cumulative liquidated damages awards, one award under
the FLSA, 29 U.S.C. § 201 et seq., and another under the NYLL, N.Y. Lab. L. § 190
et seq. We now hold that this is impermissible.
The FLSA provides that an employer who underpays an employee is
“liable to the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216.
However, “if the employer shows to the satisfaction of the court that the act or
omission giving rise to such action was in good faith and that he had reasonable
grounds for believing that his act or omission was not a violation of the” FLSA,
“the court may, in its sound discretion, award no liquidated damages or award
any amount thereof not to exceed” the original unpaid wage amount. Id. § 260.
The New York State Legislature has amended the NYLL liquidated
damages provision twice since 2009, making it easier for employees to claim
liquidated damages. See Inclan v. New York Hosp. Grp., Inc., 95 F. Supp. 3d 490,
504 (S.D.N.Y. 2015). Prior to 2009, an employee bore the burden to demonstrate
the employer’s willful failure to pay wages, and upon establishing this, the
employee could be awarded as liquidated damages an amount up to 25% of the
total amount of wages due. See Ryan v. Kellogg Partners Institutional Servs., 19
N.Y.3d 1, 10 n.8 (2012). But in 2009, the liquidated damages provision was
amended to bring it more closely in line with the FLSA; the burden was shifted
to the employer to “‘prove[ ] a good faith basis to believe that its underpayment
of wages was in compliance with the law’ in order to avoid liquidated damages.”
Id. (citing 2009 N.Y. Laws ch. 372 § 1, amending N.Y. Labor Law § 198(1–a)).
In 2010, the NYLL liquidated damages provision was amended again so
that an employee may “recover the full amount of any underpayment, all
reasonable attorneyʹs fees, [and] prejudgment interest as required under the civil
practice law and rules[.]” N.Y. Lab. Law § 198. For good measure, “unless the
employer proves a good faith basis to believe that its underpayment of wages
was in compliance with the law, an additional amount as liquidated damages
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equal to one hundred percent of the total amount of the wages found to be due”
must also be paid. Id.
While the wording of the FLSA and NYLL liquidated damages provisions
are not identical, there are no meaningful differences, and both are designed “to
deter wage‐and‐hour violations in a manner calculated to compensate the party
harmed.” Chuchuca v. Creative Customs Cabinets Inc., No. 13‐CV‐2506(RLM),
2014 WL 6674583, at *16 (E.D.N.Y. Nov. 25, 2014); see also Xochimitl v. Pita Grill
of Hellʹs Kitchen, Inc., No. 14‐CV‐10234(JGK)(JLC), 2016 WL 4704917, at *17
(S.D.N.Y. Sept. 8, 2016) (The 2009 and 2010 NYLL amendments suggest “an
interest in aligning NYLL liquidated damages with the FLSA and can be read as
a practical recognition of the dual punitive and compensatory effects of an award
of liquidated damages under the statute.”).
We therefore interpret the NYLL and FLSA as not allowing duplicative
liquidated damages for the same course of conduct. Double recovery is generally
disfavored, cf. Reilly v. Natwest Mkts. Grp., Inc., 181 F.3d 253, 265 (2d Cir. 1999),
and it is clear that the New York State legislature rewrote its liquidated damages
provision to cover the same ground as the FLSA, see Bill Jacket, 2009 A.B. 6963,
ch. 372, at 6 (expressing the bill sponsorʹs intent to “conform New York law to
the Fair Labor Standards Act”). Given the background assumption disfavoring
double recovery, we conclude that if the New York State Legislature intended to
provide multiple recoveries, it would have done so expressly.
The defendants did not argue the point, and pursued a position of all or
nothing; so, to be prudent, the plaintiff should receive the larger of the two
liquidated damages awards. We therefore vacate the liquidated damages award
under the FLSA ($66,062.00) in favor of the NYLL award ($144,677.64).3
Whether a plaintiff entitled to liquidated damages in the context of both the
NYLL and FLSA should always receive the larger of these damages amount we
leave to be decided in a future case. Liquidated damages are greater under the
NYLL because New York’s minimum and overtime wage levels are higher than
the federal minimum wage. New York also awards “spread of hours pay” in
addition to minimum and overtime wages, in which an employee who works
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* * *
The damages order is VACATED in part and REMANDED for the district
court to revise the calculation to conform with this opinion.
more than ten hours in one day must be paid an additional hour at the state
minimum wage amount. See 12 N.Y. Comp. Code R. & Regs. § 142‐2.4.
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