Hosking v. New World Mortgage, Inc. et al

Filing 131

ORDER ADOPTING REPORT AND RECOMMENDATION. Having considered 128 Magistrate Judge Lindsay's Report and Recommendation and the accompanying objections, the Court adopts the Report and Recommendation in its entirety. 127 Plaintiffs' motion for damages, attorneys' fees and costs is denied. The Clerk of Court is directed to close this case. Ordered by Judge Margo K. Brodie on 9/12/2013. (Rugani, Meredith)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------GARY HOSKING, individually and on behalf of
all others similarly situated,
Plaintiff,

MEMORANDUM & ORDER
07-CV-2200 (MKB)

v.
NEW WORLD MORTGAGE, INC., NEW
WORLD CAPITAL HOLDINGS, INC.,
EDWARD MUNTEANU, KEVIN LEONARD
and FRANCIS LEONARD,
Defendants.
---------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiff Gary Hosking filed the above-captioned action against Defendants New World
Mortgage, Inc. (“New World Mortgage”), New World Capital Holdings, Inc. (“New World
Capital”), Edward Munteanu, Kevin Leonard and Francis Leonard alleging violations of the Fair
Labor Standards Act (“FLSA”) and New York Labor Law on behalf of himself and other
similarly situated individuals. Default judgments were entered against Defendants New World
Mortgage, New World Capital and Munteanu.1 (Docket Entry Nos. 51, 83, 117.) By Order
dated January 26, 2010, Hosking’s proposed class was conditionally certified (“Plaintiffs”).
(Docket Entry No. 97.) On November 19, 2012, Plaintiffs filed a motion seeking damages,
which motion was referred to Magistrate Judge Arlene Lindsay. On December 20, 2012, Judge

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Plaintiffs never served Kevin Leonard and Francis Leonard with the Complaint and the
Complaint is hereby dismissed as to them. See Prime 4 Ventures, Inc. v. Creative Concepts of
Am., Inc., 362 F. App’x 168 (2d Cir. 2010) (affirming district court decision dismissing
defendant pursuant to Fed. R. Civ. P. 4(m) where more than 120 days had passed since the
commencement of the action and no proof of service on the defendant had been filed).

Lindsay filed a report and recommendation (“First R&R”) recommending that the Court deny
Plaintiffs’ motion for damages. Plaintiffs timely filed objections (“First Objections”) to the First
R&R, objecting only to the extent that they were not allowed an opportunity to submit additional
documents in support of the motion.
On January 8, 2013, the Court adopted the First R&R, denied Plaintiffs’ motion for
damages, but allowed Plaintiffs 30 days to submit certain additional supporting evidence.
Pursuant to the Court’s January 8, 2013 Order, Plaintiffs filed a supplemental motion for
damages on February 6, 2013, which was referred to Judge Lindsay for a report and
recommendation. On August 14, 2013, Judge Lindsay filed a report and recommendation
(“Second R&R”) recommending that this Court deny Plaintiffs’ supplemental motion for
damages. Plaintiffs timely filed objections (“Second Objections”) to the Second R&R on
August 28, 2013. For the reasons set forth below, the Second R&R is adopted in its entirety and
Plaintiffs’ supplemental motion for damages is denied.
I.

Background
a.

Procedural History

The facts and procedural history of this action are set forth in detail in Judge Lindsay’s
First R&R and are repeated here as necessary to provide context for this decision. Plaintiff
Hosking worked as a loan officer for Defendants New World Mortgage and New World Capital
from April 2006 to February 2007. (Hosking Decl. ¶ 3.) Hosking commenced this FLSA action
in May 2007 to recover overtime compensation. (Docket Entry No. 1.) On March 27, 2008,
Hosking moved to amend his Complaint to add (1) the individual officers of New World
Mortgage and New World Capital; (2) a New York state law claim for failure to pay overtime
and minimum wages; and (3) a claim for failure to pay minimum wages under the FLSA.
(Docket Entry No. 43.) While the motion to amend the Complaint was pending, Hosking moved
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for a default judgment against New World Mortgage. (Docket Entry No. 49.) On July 21, 2008,
the Honorable Arthur Spatt granted the motion for a default judgment against New World
Mortgage. (Docket Entry No. 51.) Over seven months later, on March 9, 2009, Judge Spatt
granted Hosking’s motion to amend the Complaint, permitting Hosking to add the individual
Defendants and the additional FLSA and state law claims. (Docket Entry No. 63.) The
Amended Complaint was filed on March 9, 2009. (Docket Entry No. 64.)
On October 5, 2009, Judge Spatt granted Hosking’s motion for a default judgment
against Munteanu. (Docket Entry No. 83.) Judge Spatt subsequently granted Hosking’s motion
for conditional certification to proceed as a collective action on January 26, 2010. (Docket Entry
No. 97.) On September 7, 2012, Plaintiffs and New World Capital stipulated to the entry of a
default judgment against New World Capital. (Docket Entry No. 116.) This Court so ordered
the stipulation on September 18, 2012. (Docket Entry No. 117.)
b.

Plaintiffs’ First Motion for Damages and Judge Lindsay’s First R&R

On November 19, 2012, Plaintiffs filed a motion for damages, which the Court referred
to Judge Lindsay for a report and recommendation. (Docket Entry No. 121; Order dated
Nov. 26, 2012.) Plaintiffs sought collective class damages against New World Mortgage, New
World Capital and Munteanu on their FLSA overtime and minimum wages claims. (Docket
Entry No. 121.)
Judge Lindsay issued the First R&R on December 20, 2012, recommending that the
motion be denied, because based on the submissions, there was no basis for the damages
requested by Plaintiffs. (Docket Entry No. 123 (“First R&R”).) Judge Lindsay noted Plaintiffs’
failure to address the timing of the three default judgments. (Id. at 4–5.) Specifically, the default
judgment against New World Mortgage was entered almost eight months before Plaintiffs filed
the Amended Complaint which added the minimum wage claims, but Plaintiffs sought minimum
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wage damages against New World Mortgage and did not explain why they were entitled to those
damages. (Id. at 4.) Judge Lindsay further noted that the motion for conditional class
certification was granted after the default judgments against both New World Mortgage and
Munteanu were entered, but Plaintiffs sought collective damages against New World Mortgage
and Munteanu and “[P]laintiffs have failed to provide any support for their demand that they be
awarded collective class damages with respect to [New World] Mortgage and Munteanu.” (Id.
at 4–5.)
Judge Lindsay also found Plaintiffs’ damages calculation to be deficient. (Id.) She
observed that in FLSA cases where a plaintiff is deprived of the necessary employee records
required by the FLSA, such as by a defendant’s default, courts permit the plaintiff to rely on their
recollection and estimates of the hours worked. (Id.) Judge Lindsay found that consistent with
this practice, Plaintiffs estimated that they each worked an average of 66 hours each week. (Id.
at 6.) Judge Lindsay found, however, that Plaintiffs’ estimate of the number of weeks worked
was deficient because Plaintiffs failed to submit documentary support for the figures used, in
particular dates of employment or the number of weeks or months worked. (Id.) In particular,
Judge Lindsay found that Plaintiffs’ claim that one Plaintiff “worked 70 hours a week, 52 weeks
a year, for two years straight, simply strains credibility.” (Id. at 6–7.) Judge Lindsay concluded
that “without additional evidence, the court cannot be ensured there is a basis for the damages
specified in the default judgment[].” (Id. at 7 (citing Transatl. Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).)
As to counsel’s application for attorneys’ fees and costs, Judge Lindsay found it lacking
because “[P]laintiffs’ counsel . . . failed to submit any information addressing the reasonableness
of the hourly rate sought,” and failed to “provide contemporaneous time records . . . . Counsel

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for [P]laintiffs simply attests that his hours are based on contemporaneous records and states the
type of costs expended, but no records have been submitted to the court.” (Id. at 8.) Judge
Lindsay concluded that Plaintiffs’ submission did “not provide the basis for an award of
damages” and recommended that Plaintiffs’ motion for damages be denied. (Id.)
c.

Plaintiffs’ Objections to the First R&R

On January 4, 2013, Plaintiffs timely filed objections to the First R&R. (Docket Entry
No. 125.) In Plaintiffs’ First Objections, Plaintiffs objected only “insofar as the Court’s
recommendation does not allow Plaintiffs . . . to submit the additional information to provide the
Court with sufficient information to calculate the damages due.” (Id.) As to fees, Plaintiffs
stated that “Plaintiffs’ counsel is willing to submit his contemporaneous time records for in
camera review.” (Id.) Plaintiffs did not object to any portion of the First R&R.
By Order dated January 8, 2013, the Court adopted the First R&R and denied Plaintiffs’
motion for damages. (Docket Entry No. 126.) The Court noted that Plaintiffs did not object to
any specific portion of the First R&R and only requested “an opportunity to submit additional
documents.” (Id.) The Court allowed Plaintiffs 30 days to submit additional supporting
evidence, namely: (1) the dates of employment of the opt-in Plaintiffs, and (2) supporting
documentation regarding attorneys’ fees. (Id.)
d.

Plaintiffs’ Supplemental Motion for Damages

Pursuant to the Court’s January 8, 2013 Order, Plaintiffs filed a supplemental motion for
damages on February 6, 2013, which was referred to Judge Lindsay for a report and
recommendation. (Docket Entry Nos. 126, 127.) Plaintiffs resubmitted the prior memorandum
of law and supporting documentation previously submitted in support of the first motion for
damages, along with (1) new declarations from two of the Plaintiffs with information regarding
their dates of employment and hours worked, and (2) the consent-to-join the class forms
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submitted by the opt-in Plaintiffs which forms included information concerning their dates of
employment. (See Docket Entry No. 127 Exs. C and D.) Counsel submitted no
contemporaneous time records in support of the request for attorneys’ fees, instead requesting
that counsel “be entitled to submit their request for attorneys’ fees and costs at a later date,
[as] . . . Plaintiffs will continue to accrue attorneys’ fees and costs in order to enforce their
judgment.” (Docket Entry No. 127 at 1.)
e.

Judge Lindsay’s Second R&R

On August 14, 2013, Judge Lindsay filed the Second R&R recommending that the Court
deny Plaintiffs’ motion because the supporting papers “remain deficient.” (Docket Entry No.
128 (“Second R&R”) at 1.) Judge Lindsay noted the limited additional information submitted by
Plaintiffs. (Id. at 3.) Reiterating that under the circumstances, Plaintiffs may rely on
“representative data” and “recollection,” Judge Lindsay observed that Plaintiffs’ estimate of
damages still failed to make an attempt to estimate actual start dates or end dates within any
particular month, or address any time-off that may have been taken by Plaintiffs, such as for
vacations or sick days. (Id. at 3–4) With regard to Plaintiffs’ minimum wage claim, Judge
Lindsay found that Plaintiffs’ failed to take into consideration any amount that Plaintiffs received
in wages, instead “presum[ing] that the [P]laintiffs were not paid a single dollar in minimum
wages,” despite an inconsistent account provided by the declarations. (Id. at 4.) Judge Lindsay
also found that Plaintiffs failed to address the issue raised in the First R&R regarding the timing
of the default judgments as compared to the amendment of the complaint and class certification.
(Id. at 5.) Judge Lindsay noted that Plaintiffs failed to submit supporting documentation for their
request for fees, after requesting and being granted the opportunity to do so, and recommended
that the request to submit documentation at a later time be denied as untimely. (Id. at 6.)

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f.

Plaintiffs’ Objections to the Second R&R

Plaintiffs timely filed objections to the Second R&R on August 28, 2013. (Docket Entry
No. 130.) In Plaintiffs’ Second Objections they argue that Judge Lindsay’s analysis of Plaintiffs’
damages submissions “requires too much.” (Id. at 13.) Plaintiffs also argue, without citing to
any legal authority, that New World Mortgage and Munteanu should not be excused from
damages despite the entry of the default judgment against them prior to the filing of the
Amended Complaint and class certification. (Id. at 18.) As to the Amended Complaint, filed
March 9, 2009, almost eight months after Plaintiffs had already obtained a default judgment
against New World Mortgage, Plaintiffs contend that New World Mortgage was active in the
case in March 2008 when Plaintiffs moved to amend and thus New World Mortgage had notice,
and the Amended Complaint, which was served on New World Mortgage, arises from the same
facts as the original Complaint and relates back to the date of the original Complaint. (Docket
Entry No. 130 at 17.) Plaintiffs argue that “due process and fairness concerns . . . are simply of
no moment here.” (Id.) As to class certification, Plaintiffs argue that “Defendants knew from
the day the original Complaint was filed that the case was being brought as a collective action[,]
[and] . . . . [r]equiring Plaintiffs to amend their complaint and serve it each time a new opt-in
sought to join the case is clearly contrary to Congress’ intent in allowing FLSA cases to proceed
as collective actions.” (Id.) Finally, Plaintiffs argue that Judge Lindsay erred when denying fees
and costs because the “[t]he FLSA provides that in an action for unpaid minimum wage or
overtime wages, ‘[t]he court . . . shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorneys’ fee . . . and costs.’” (Id. at 18 (quoting 29 U.S.C.
§ 216(b).)

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II. Discussion
a.

Standard of Review

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews the parts of the report and recommendation to which
the party objected under a de novo standard of review. Id.; see also Larocco v. Jackson, No. 10CV-1651, 2010 WL 5068006, at *2 (E.D.N.Y. Dec. 6, 2010). The district court may adopt those
portions of the recommended ruling to which no timely objections have been made, provided no
clear error is apparent from the face of the record. 28 U.S.C. § 636(b)(1)(C); see also Larocco,
2010 WL 5068006, at *2.
b.

Plaintiffs Cannot Challenge the First R&R

Plaintiffs did not object to any portion of Judge Lindsay’s First R&R. (See Docket Entry
No. 125.) Plaintiffs did not object to Judge Lindsay’s statement of applicable law or analysis of
Plaintiff’s submissions — Plaintiffs only requested the opportunity to submit additional
information. (Id.) “Failure to object to a magistrate judge’s report and recommendation within
the prescribed time limit ‘may operate as a waiver of any further judicial review of the decision,
as long as the parties receive clear notice of the consequences of their failure to object.’” Sepe v.
N.Y.S. Ins. Fund, 466 F. App’x 49, 50 (2d Cir. 2012) (quoting United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997)); see also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis,
Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party waives appellate
review of a decision in a magistrate judge’s Report and Recommendation if the party fails to file
timely objections designating the particular issue.”). After Plaintiffs failed to object to any
portion of the First R&R, it was adopted in its entirety. (See Docket Entry No. 126.) At no time

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did Plaintiff move for reconsideration. “The law of the case doctrine counsels a court against
revisiting its prior rulings in subsequent stages of the same case absent cogent and compelling
reasons such as an intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.” Jackson v. New York State, --F.3d ---, ---, 2013 WL 3305765, at *3 (2d Cir. July 2, 2013) (citation and internal quotation
marks omitted); see also Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (same). Plaintiffs
have provided no compelling reason for this Court to revisit its prior rulings.
Following the adoption of the First R&R, Plaintiff was granted the opportunity to submit
additional evidentiary support — not to reopen the First R&R. (See Docket Entry No. 126.)
Judge Lindsay’s First R&R identified the specific problems with Plaintiffs’ application for
damages, but Plaintiffs failed to address most of the deficiencies.
c.

Plaintiffs’ Motion for Damages is Deficient

In Plaintiffs’ supplemental motion for damages, although Plaintiffs provided unredacted
copies of the opt-in forms which substantiated the approximate start and end dates used for the
opt-in Plaintiffs, Plaintiffs did not address the issues raised by Judge Lindsay about their estimate
of the number of weeks worked, unaccounted-for time-off and already-paid wages. “[T]he court
must ensure that there is a basis for the damages specified in a default judgment . . . .” Finkel v.
Universal Elec. Corp., No. 12-CV-2154, 2013 WL 4522594, at *9 (E.D.N.Y. Aug. 27, 2013)
(adopting report and recommendation) (collecting cases), aff’d, 873 F.2d 38 (2d Cir. 1989)). The
Court finds that Plaintiffs have failed to demonstrate that they in fact performed the work for
which they claim they were not compensated.
In addition, Plaintiffs provided no legal authority to support the requested class and
minimum wage damages against Defendants New World Mortgage and Munteanu where (1) the
default judgment against New World Mortgage was entered almost eight months prior to the
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addition of the minimum wage claim in the Amended Complaint, and (2) the default judgments
against both New World Mortgage and Munteanu were entered prior to the grant of conditional
class certification and the addition of the opt-in Plaintiffs.
i.

Plaintiffs are Not Entitled to Minimum Wage Damages Against New
World Mortgage

The Second Circuit has cautioned that “Rule 54(c) provides that ‘[a] default judgment
must not differ in kind from, or exceed in amount, what is demanded in the pleadings.’” City of
New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (alteration in original)
(quoting Fed. R. Civ. P. 54(c) and citing Silge v. Merz, 510 F.3d 157, 161 (2d Cir. 2007)). The
Second Circuit has explained that:
[T]he defending party should be able to decide on the basis of the
relief requested in the original pleading whether to expend the
time, effort, and money necessary to defend the action. It would
be fundamentally unfair to have the complaint lead defendant to
believe that only a certain type and dimension of relief was being
sought and then, should defendant attempt to limit the scope and
size of the potential judgment by not appearing or otherwise
defaulting, allow the court to give a different type of relief or a
larger damage award.
Silge, 510 F.3d at 159 (quoting 10 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure, § 2663 (1998)); see also Keefe, Bruyette & Woods, Inc. v. Atl.
S. Capital Grp., No. 11-CV-00810, 2012 WL 2551966, at *5 (S.D.N.Y. June 27, 2012) (“Since
prejudgment interest, costs and disbursements differ in kind and exceed in amount what is
demanded in the complaint, they contravene Rule 54(c)’s express language, and, consequently,
are not warranted.”); Guanghong Int’l (HK) Ltd. v. Ultimate Fin. Solutions LLC, No. 11-CV4019, 2012 WL 1228085, at *4 (S.D.N.Y. Mar. 26, 2012) (“[B]ecause the damages sought at the
inquest stage differ in kind from those sought in the complaint, they are not warranted . . . .”),
report and recommendation adopted, No. 11-CV-4019, 2012 WL 2402902 (S.D.N.Y. June 26,

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2012); Finkel v. Triple A Grp., Inc., 708 F. Supp. 2d 277, 282–83 (E.D.N.Y. 2010) (adopting
report and recommendation) (“By requesting interest and liquidated damages on late-paid
contributions in his motion for default judgment, plaintiff now seeks a judgment ‘different in
kind’ than that demanded in his complaint in violation of Rule 54(c). Plaintiff ‘could easily have
drafted a complaint that included a distinct claim for [interest and liquidated damages on latepaid contributions] in the demand clause. By operation of Rule 54(c), his failure to do so,
intentional or not, ran the risk that his damages would be limited in the event of default.’
Accordingly, I recommend that defendants be found not liable for these damages.” (citations
omitted)); Silge, 510 F.3d at 160 (“By limiting damages to what is specified in the ‘demand for
judgment,’ the rule ensures that a defendant who is considering default can look at the damages
clause, satisfy himself that he is willing to suffer judgment in that amount, and then default
without the need to hire a lawyer.”)
Here, the original Complaint against New World Mortgage asserted a FLSA claim for
overtime only. (See Docket Entry No. 1.) Hosking added the FLSA minimum wage claim only
after obtaining a default judgment against New World Mortgage. Rule 54 “permits neither
increases ‘in kind . . . or . . . in amount’ from the figure specified in the demand for judgment.”
Silge, 510 F.3d at 160 (quoting Fed. R. Civ. P. 54(c)). This issue was raised without objection
by Judge Lindsay in the First R&R and in Plaintiffs’ Second Objections they failed either to
provide legal authority in support of their request for an award of minimum wage damages
against New World Mortgage or to adjust their calculation of damages to account for the timing
of the default judgments.
Plaintiffs’ argument that the Court should award minimum wage damages because
Defendants had sufficient notice of the FLSA minimum wage claim from the motion to amend

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the Complaint and service of the subsequent Amended Complaint is without merit. (Docket
Entry No. 130 at 17.) Plaintiffs moved to amend the Complaint to add the FLSA minimum wage
claim after obtaining a default judgment against New World Mortgage, and after New World
Mortgage’s counsel was permitted to withdraw. (See Docket Entry Nos. 12, 43, 44.) Nearly one
year after the motion to amend the Complaint was filed, and more than one-and-a-half years after
the default judgment was entered, the motion to amend was granted and the Amended Complaint
was filed and served on New World Mortgage. (See Docket Entry Nos. 43, 63, 72.) In Silge the
Second Circuit specifically stated that “[w]hile notice is one of the policy objectives underlying
Rule 54(c), notice alone is insufficient to satisfy the rule.” Silge, 510 F.3d at 161. “The timing
and method of such notice (i.e., that it come before the decision to default and be evident from
the face of the complaint) are both critical to the analysis.” Id. The Second Circuit further stated
that notice that occurs “after the entry of default . . . may . . . seem[] to come too late in the day
for defendants to undo the consequences of their prior decision to default, greatly limiting its
practical value.” Id. at 161–62. Any notice of the FLSA minimum wage claim provided to New
World Mortgage as a result of the motion to amend the Complaint and subsequent filing and
service of the Amended Complaint occurred after New World Mortgage’s default. Plaintiffs
have offered no legal authority to support an award of FLSA minimum wage damages against
New World Mortgage under these circumstances. The Court finds that Plaintiffs are not entitled
to damages for the later-added minimum wage claim against New World Mortgage.
ii.

Plaintiffs are Not Entitled to Collective Class Damages Against New
World Mortgage and Munteanu

Plaintiffs also seek collective class damages against both New World Mortgage and
Munteanu, despite the fact that the default judgments were entered against both Defendants
before conditional class certification was granted and the opt-in Plaintiffs were added. This issue

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was raised without objection by Judge Lindsay in the First R&R and in Plaintiffs’ Second
Objections they failed to either provide legal authority to support their request for an award of
collective class damages against New World Mortgage and Munteanu or to adjust their
calculation of damages. Plaintiffs argue that “Defendants knew from the day the original
Complaint was filed that the case was being brought as a collective action,” and “[r]equiring
Plaintiffs to amend their complaint and serve it each time a new opt-in sought to join the case is
clearly contrary to Congress’ intent in allowing FLSA cases to proceed as collective actions.”
(Docket Entry No. 130 at 17.)
Courts in this Circuit have declined to apply default judgments granted to individual
plaintiffs prior to class certification and the addition of opt-in plaintiffs to later-added plaintiffs.
See Rodriguez v. Antunez, 784 F. Supp. 2d 114, 133 (E.D.N.Y. 2011) (adopting report and
recommendation) (on a motion for default judgment and class certification, granting default
judgment in favor of the named plaintiffs, but finding that “a default judgment [was] not
warranted as to any potential opt-in plaintiffs who may subsequently consent to become a party
to this action” as defendants must have “an opportunity to respond” to their claims); Cortes v.
Astoria NY Holdings LLC, No. 11-CV-3062, 2011 WL 5964598, at *3 n.5 (E.D.N.Y. Oct. 24,
2011) (“After the time for opting in has expired, plaintiff shall amend his complaint to include all
individuals who have consented to joining the FLSA action and the amended complaint shall be
served upon the defendants.” (citing Rodriguez, 784 F. Supp. 2d at 133)); see also Troncone v.
Velahos, No. 10-CV-2961, 2011 WL 3236219, at *8 n.8 (D.N.J. July 28, 2011) (finding on a
motion for class certification and default judgment “on behalf of [plaintiff] and other members of
the proposed FLSA collective action” that the court could grant plaintiff a “default judgment as
to her individual FLSA claim while simultaneously granting [p]laintiff conditional certification

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of the proposed class,” however, because the plaintiff sought “to vindicate the rights of all
members of the collective action along with her own individual rights,” “rather than severing
[p]laintiff from the proposed class” the court “decline[d] to grant [p]laintiff default judgment as
to her individual claim at this juncture”), reconsidered on other grounds, No. 10-CV-2961, 2012
WL 3018061 (D.N.J. July 23, 2012). The Court finds that Plaintiffs are not entitled to damages
against New World Mortgage or Munteanu for any of the class members.
iii. Attorneys’ Fees
Plaintiffs failed to provide contemporaneous time records in support of their application
for attorneys’ fees. To obtain an award of attorneys’ fees, a plaintiff must provide
contemporaneous time records. See Scott v. City of New York, 643 F.3d 56, 58–59 (2d. Cir.
2011); Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078, 2011 WL 5825138, at *4 (E.D.N.Y.
Nov. 17, 2011) (“The burden is on the party seeking attorney’s fees to submit sufficient evidence
to support the hours worked and the rates claimed. . . . Accordingly, the party seeking an award
of attorney’s fees must support its application by providing contemporaneous time records that
detail ‘for each attorney, the date, the hours expended, and the nature of the work done.’” (citing
Hensley v. Eckerhart, 461 U.S. 424, 453 (1983) and Cho v. Koam Med. Servs. P.C., 524 F. Supp.
2d 202, 209 (E.D.N.Y. 2007) and quoting N.Y. Ass’n for Retarded Children, Inc. v. Carey, 711
F.2d 1136, 48 (2d Cir. 1983))). Plaintiffs failed to submit any records although they requested
the opportunity to do so and were given additional time by the Court to submit these records.
(Docket Entry Nos. 125, 126.) Plaintiffs’ request that they be allowed to submit their application
for attorneys’ fees at a later date is denied as untimely.
iv. Costs
Plaintiffs have failed to substantiate their application for over $8,000 in costs. The law is
clear that “[t]he fee applicant bears the burden of adequately documenting and itemizing the
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costs requested.” Spence v. Ellis, No. 07-CV-5249, 2012 WL 7660124, at *8 (E.D.N.Y. Dec. 19,
2012) (quoting Pennacchio v. Powers, No. 05-CV-985, 2011 WL 2945825, at *2 (E.D.N.Y.
July 21, 2011))), report and recommendation adopted, No. 07-CV-5249, 2013 WL 867533
(E.D.N.Y. Mar. 7, 2013); Telebrands Corp. v. HM Imp. USA Corp., No. 09-CV-3492, 2012 WL
3930405, at *14 (E.D.N.Y. July 26, 2012) (same), report and recommendation adopted, No. 09CV-3492, 2012 WL 3957188 (E.D.N.Y. Sept. 10, 2012); Pennacchio, 2011 WL 2945825, at *2
(same); see also Li Ping Fu v. Pop Art Int’l Inc., No. 10-CV-8562, 2011 WL 4552436, at *5
(S.D.N.Y. Sept. 19, 2011) (costs as to which “plaintiff has not provided supporting
documentation” are “not recoverable”), report and recommendation adopted in relevant part,
No. 10-CV-8562, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011); Kingvision Pay-Per-View, Ltd. v.
Castillo Rest. Corp., No. 06-CV-00617, 2007 WL 841804, at *7 (E.D.N.Y. Jan. 16, 2007)
(recommending denial of plaintiff’s request for costs where plaintiff “submitted no documentary
evidence in support of its request for $150 in costs”), report and recommendation adopted, No.
06-CV-00617, slip. op. at 1 (E.D.N.Y. Mar. 16, 2007). Plaintiffs requested a total amount of
$8,799.54 and listed the types of costs as filing fees, process fees, postage, legal research,
transportation, meals, and the issuance of notice through a third-party administrator. (Langeland
Decl. ¶ 5.) Plaintiffs made no effort to document or itemize the costs incurred.
Plaintiffs have not demonstrated that they are entitled to the damages, attorneys’ fees or
costs requested in their motion pending before this Court.
III. Conclusion
Having considered Magistrate Judge Lindsay’s Second R&R and the accompanying

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objections, the Court adopts the Second R&R in its entirety. Plaintiffs’ motion for damages,
attorneys’ fees and costs is denied. The Clerk of Court is directed to close this case.

SO ORDERED:

S/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 12, 2013
Brooklyn, New York

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