Nuriddinov v. Masada III, Inc. et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons stated in the attached Memorandum and Order, the court substantially adopts Magistrate Judge Levy's Report and Recommendation 27 . Plaintiff's motion for default judgment 26 is granted in part and denied in part. Plaintiff is awarded $26,917.32, consisting of unpaid overtime compensation, statutory penalties, liquidated damages, attorney's fees, and costs, plus pre- and post-judgment interest. The Clerk of Court is respectfully directed to enter judgment according to the attached Memorandum and Order, close the case, and mail pro se defendants a copy of the order and judgment and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/12/2018. (Renzler, Katie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------x
AHMAD NURIDDINOV,
Plaintiff,

NOT FOR PUBLICATION
ORDER ADOPTING REPORT
AND RECOMMENDATION
15-CV-5875 (KAM)(RML)

-against-

MASADA III, INC., MASADA III
TRANSPORTATION BROKERS, INC., and
MASADA III CAR & LIMO SERVICE CORP.,
Defendants.
-------------------------------------x
MATSUMOTO, United States District Judge:
Plaintiff Ahmad Nuriddinov (“plaintiff”) commenced
this wage and hour action on October 13, 2015 against Masada
III, Inc. (“Masada III”), Masada III Transportation Brokers,
Inc. (“Masada III Transportation”), and Masada III Car & Limo
Service Corp. (“Masada Car & Limo”) (collectively,
“defendants”).

(ECF No. 1, Complaint.)

At the court’s

direction, plaintiff filed an amended complaint (“Amended
Complaint”) on February 24, 2017, in which he asserted claims
under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201,
et seq., and the New York Labor Law (“NYLL”).
Ex. A, Amended Complaint ¶¶ 18, 29-42.)

(ECF No. 23-1,

On April 29, 2017,

plaintiff filed his third motion for default judgment.

(ECF No.

26, Affirmation in Support of Plaintiff’s Motion for Default
Judgment.)

Presently before the court is the Report and

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Recommendation of the United States Magistrate Judge Robert M.
Levy (the “R&R”), filed on July 24, 2017.
and Recommendation (“R&R”).)
defendant on the same date.

(ECF No. 27, Report

A copy of the R&R was mailed to
(ECF Entry, dated 7/24/2017.)

None

of the parties in this action has filed an objection to the R&R.
The court assumes familiarity with the factual and procedural
history as set forth in the R&R.

(ECF No. 27, R&R at 2-5.)

For the reasons stated below, the court substantially
adopts the R&R with modifications as to the amount of damages
and interest awarded.
LEGAL STANDARD
A district court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the
magistrate judge” in a Report and Recommendation.
636(b)(1)(C).

28 U.S.C. §

Where no objections are made, the court may adopt

the Report and Recommendation without de novo review, see Thomas
v. Arn, 474 U.S. 140, 150 (1985), and need only review for clear
error on the face of the record.

See Fed. R. Civ. P. 72(b);

Baptichon v. Nev. State Bank, 304 F. Supp. 2d 451, 453 (E.D.N.Y.
2004), aff’d, 125 F. App’x 374 (2d Cir. 2005).
DISCUSSION
The R&R recommends that plaintiff’s third motion for
default judgment be granted in part and denied in part.
Specifically, it recommends that default judgments be entered
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against defendants Masada III Transportation and Masada III but
denied with respect to defendant Masada III Car & Limo Service.
(ECF No. 27, R&R at 10-15.)

Additionally, the R&R recommends

that plaintiff be awarded $9,254.60 in damages, consisting of
$2,902.30 in unpaid overtime compensation, $1,150 in statutory
penalties for wage notice violations, $2,300 in statutory
penalties for wage statement violations, and $2,902.30 in
liquidated damages under state law.

(Id. at 16-21.)

The R&R

also recommends that plaintiff be awarded prejudgment interest
on his compensatory damages of $2,902.30 at a rate of nine
percent per annum from November 2, 2014 to the date that
judgment is entered, as well as post-judgment interest.
21-22.)

(Id. at

Finally, the R&R recommends that plaintiff be awarded

$15,750 in attorney’s fees and $914.30 in costs.

(Id. at 23-

27.)
Upon clear error review, the court substantially
adopts Judge Levy’s R&R with modifications as to the damages
award and interest.

Without modification, the court adopts the

recommendation to grant plaintiff’s motion for default judgment
with respect to defendants Masada III and Masada Transportation
and to deny plaintiff’s motion for default judgment with respect
to defendant Masada III Car & Limo.

(Id. at 10-15.)

As to

damages, the court adopts without modification the
recommendations regarding statutory penalties for wage notice
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violations, statutory penalties for wage statement violations,
and spread-of-hours premiums.

(Id. at 15-16, 20-21.)

Specifically, the court adopts the recommendation that plaintiff
be awarded $1,150 in statutory penalties for wage notice
violations and $2,300 in statutory penalties for wage statement
violations.

(Id. at 20-21.)

The court adopts the

recommendation that plaintiff is not entitled to, and therefore
should not be awarded, unpaid spread-of-hour premiums because
plaintiff’s daily compensation was always greater than the state
minimum wage rate plus one additional hour.

(Id. at 15-16.)

Finally, the court also adopts without modification the
recommendation that plaintiff be awarded $15,750 in attorney’s
fees and $914.30 in costs.

(Id. at 23-27.)

The court adopts, with modifications to the amounts,
the recommendations that plaintiff be awarded unpaid overtime
compensation, liquidated damages under state law but not federal
law, prejudgment interest on his compensatory damages at a rate
of nine percent per annum from November 2, 2014 to the date that
judgment is entered, and post-judgment interest on the amount
awarded from the date of judgment.

Based on the calculations

set forth below, the court modifies the amounts to be awarded.
The court employed the same method of calculation as was used in
the R&R (id. at 18-19), and is described below, but came to a

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slightly higher award due to differences found in the number of
hours plaintiff worked.
The court calculated plaintiff’s lawful hourly rate on
a week-by-week basis for every workweek (Monday-Sunday) he
worked for defendants.1

By multiplying plaintiff’s daily rate

($120) by the number of days worked, the court calculated
plaintiff’s actual weekly compensation (“Actual Pay Received”).
The court calculated plaintiff’s lawful hourly rate by dividing
plaintiff’s Actual Pay Received by the number of hours worked in
that week.2

To determine plaintiff’s lawful overtime (“OT”) rate

for each week, plaintiff’s lawful hourly rate for each week was
multiplied by 1.5.

For weeks in which plaintiff worked more

than forty hours, the lawful hourly rate was multiplied by forty
to determine the amount plaintiff is due for those hours
(“Lawful Straight Time Pay Due”), and the lawful overtime rate
was multiplied by the number of hours worked over forty to
determine the amount of overtime pay due (“Lawful OT Pay Due”).
The sum of those two numbers equals the pay plaintiff was
lawfully due based on his rate that week (“Total Lawful Pay

1

As discussed in the R&R, plaintiff’s testimony and the Amended Complaint
represent that he received a flat daily rate of $120. (See ECF No. 27, R&R
at 17, 18 n.6.)
2 As in the R&R, the hours were calculated based on the evidence provided in
plaintiff’s time records. (ECF No. 19, Time Records.) The number of hours
worked each day was calculated from the first scheduled pickup to the last
scheduled pickup, with 1.5 hours added to account for travel time between
plaintiff’s last pickup and return to Masada at the end of each work day.
(See ECF No. 27, R&R at 18 n.7.)

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Due”).

Subtracting the Actual Pay Received from Total Lawful

Pay Due yields the unpaid wages that plaintiff is owed.

As

illustrated in the chart3 below, this results in an award of
$3,401.51 for unpaid wages.
Workweek

Days
Worked

Actual
Pay
Received

Hours
Worked

Lawful
Hourly
Rate

Lawful
Straight
Time Pay
Due

OT
Hours

Lawful
OT Rate

Lawful
OT Pay
Due

Total
Lawful
Pay Due

Unpaid
Wages
Owed

8.11.148.17.14
8.18.148.24.14
8.25.148.31.14
9.1.149.7.14
9.8.149.14.14
9.15.149.21.14
9.22.149.28.14
9.29.1410.5.14
10.6.1410.12.14
10.13.1410.19.14
10.20.1410.26.14
10.27.1411.2.14
11.10.1411.16.14
11.17.1411.23.14
11.24.1411.30.14
12.1.1412.7.14
12.8.1412.14.14
12.15.1412.21.14
12.22.1412.28.14
12.29.141.4.15
1.5.151.11.15

6

$720

77.73

$9.26

$370.50

37.73

$13.89

$524.25

$894.75

$174.75

7

$840

85.75

$9.80

$391.84

45.75

$14.69

$672.24

$1064.08

$224.08

5

$600

59.75

$10.04

$401.67

19.75

$15.06

$297.49

$699.16

$99.16

6

$720

71.43

$10.08

$403.17

31.43

$15.12

$475.24

$878.41

$158.41

5

$600

65.05

$9.22

$368.95

25.05

$13.84

$346.58

$715.53

$115.53

7

$840

92.33

$9.10

$363.90

52.33

$13.65

$714.15

$1078.05

$238.05

4

$480

53.33

$9.00

$360

13.33

$13.50

$180

$540

$60

3

$360

39.03

$9.22

$368.92

0

$13.83

$0

$368.92

$8.92

7

$840

89.42

$9.39

$375.77

49.42

$14.09

$696.35

$1072.12

$232.12

5

$600

65.5

$9.16

$366.41

25.5

$13.74

$350.38

$716.79

$116.79

6

$720

77.9

$9.24

$369.70

37.9

$13.86

$525.44

$895.15

$175.15

5

$600

67.72

$8.86

$354.42

27.72

$13.29

$368.37

$722.79

$122.79

1

$120

12.02

$9.99

$399.45

0

$14.98

$0

$399.45

$279.45

7

$840

86.8

$9.68

$387.10

46.8

$14.52

$679.35

$1066.45

$225.45

4

$480

50.92

$9.43

$377.09

10.92

$14.14

$154.37

$531.46

$51.46

6

$720

76.17

$9.45

$378.19

36.17

$14.18

$512.82

$890.94

$170.94

7

$840

91.22

$9.21

$368.35

51.22

$13.81

$707.47

$1075.82

$236.82

6

$720

78.08

$9.22

$368.84

38.08

$13.83

$526.74

$895.58

$175.58

3

$360

37.22

$9.67

$386.92

0

$14.51

$0

$386.92

$26.92

6

$720

76.3

$9.44

$377.46

36.3

$14.15

$513.81

$891.27

$171.27

5

$600

62.13

$9.66

$386.27

22.13

$14.48

$320.60

$706.87

$106.87

3

For the purposes of the chart, where relevant, numbers are rounded to the
nearest hundredth decimal. However, the court used the non-rounded numbers
to calculate the total amount of unpaid wages owed.

6

1.12.151.18.15
1.19.151.25.15

5

$600

64.55

$9.30

$371.80

24.55

$13.94

$342.29

$714.10

$114.10

4

$480

53.22

$9.02

$360.79

13.22

$13.53

$178.82

$539.61

$59.61

Total Unpaid Wages Owed: $3,401.51
The court modifies the R&R’s recommendations regarding
liquidated damages, prejudgment interest, and post-judgment
interest based on the revised compensatory damages award of
$3,401.51.

With respect to liquidated damages, the court adopts

the recommendation that plaintiff be awarded liquidated damages
only under state law and in the amount of one-hundred percent of
the wages due.

(Id. at 21 (citing, inter alia, Chowdhury v.

Hamza Express Food. Corp., 666 F. App’x 59, 60 (2d Cir. 2016)
(summary order) and N.Y. Lab. Law § 663(1)).)

Accordingly,

plaintiff is awarded $3,401.51 in liquidated damages.
The court adopts the recommendation that prejudgment
interest be calculated at a rate of nine percent per annum from
November 2, 2014 to the date judgment is entered (id. at 21-22
(citing C.P.L.R. § 5004)), but modifies the recommendation so
that the interest is applied to compensatory damages in the
amount of $3,401.51.

Similarly, the court adopts the

recommendation that plaintiff be awarded statutory post-judgment
interest on the modified award.

The Second Circuit has held

that an award of post-judgment interest is “mandatory” and
should be awarded at the statutory rate prescribed by 28 U.S.C.
§ 1961.

Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008)

7

(citing Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 100
(2d Cir. 2004)).

Post-judgment interest is calculated “from the

date of the entry of judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as published by
the Board of Governor’s of the Federal Reserve System, for the
calendar week preceding[] the date of the judgment.”
27, R&R at 22 (quoting 28 U.S.C. § 1961(a)).)

(ECF No.

As such, post-

judgment interest shall accrue at the federal statutory rate
until the judgment is paid in full.

28 U.S.C. § 1961.

CONCLUSION
For the reasons stated in the R&R and above,
plaintiff’s motion for default judgment is granted with respect
to defendants Masada III and Masada III Transportation and
denied with respect to defendant Masada III Car & Limo.
Plaintiff is awarded a total amount of $26,917.32 as follows:
(1) $3,401.51 in unpaid overtime compensation; (2) $1,150 in
statutory penalties for wage notice violations; (3) $2,300 in
statutory penalties for wage statement violations; (4) $3,401.51
in liquidated damages; (5) $15,750 in attorney’s fees; and (6)
$914.30 in costs.

Plaintiff is also awarded prejudgment

interest at a nine percent annual rate on the total compensatory
damages, $3,401.51, from November 2, 2014 through the date of
judgment, and post-judgment interest pursuant to 28 U.S.C. §
1961 from the date of judgment until the date of payment.
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The

Clerk of Court is respectfully directed to enter judgment
accordingly, close the case, mail pro se defendants a copy of
this order and judgment, and note service on the docket.

SO ORDERED.
Dated:

March 12, 2018
Brooklyn, New York

_______/s/___________________
Hon. Kiyo A. Matsumoto
United States District Judge

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