Sanchez v. Viva Nail NY Inc. et al

Filing 17

DECISION AND ORDER - It is hereby: ORDERED, that Judge Lindsays Report and Recommendation is adopted in its entirety. The Clerk of the Court is directed to enter a default judgment in favor of the Plaintiff in the amount of $30,552.47 in unpaid minimum, overtime and spread of hours wages; $32,450.04 in liquidated damages; and $492.60 in costs. The Plaintiffs limited objections are denied without prejudice. If she chooses, the Plaintiff is directed to renew her motion for prejudgment interest and attorneys fees, with proper documentation, within thirty days of the date of this order. Otherwise, the Court will direct the Clerk to mark this case as closed. So Ordered by Judge Arthur D. Spatt on 3/4/2014. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUISA SANCHEZ,
Plaintiff,
-against-

DECISION AND ORDER
12-cv-6322 (ADS)(ARL)

VIVA NAIL NY INC. and YANG S. CHU,
Defendants.
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APPEARANCES:
Frank & Associates P.C.
Attorneys for the Plaintiff
500 Bi-county Blvd, 112n
Farmingdale, NY 11735
By:
Peter Arcadio Romero, Esq.
Andrea E. Batres, Esq., Of Counsel

NO APPEARANCE:
Viva Nail NY Inc.
Yang S. Chu
SPATT, District Judge.
The Plaintiff commenced this action on or about December 21, 2012,
asserting claims against the Defendants for failure to pay the minimum wage in
violation of the federal Fair Labor Standards Act and the New York State labor law.
The Clerk of the Court having noted the default of the Defendant on April 29, 2013,
the Court referred this matter to United States Magistrate Arlene R. Lindsay for a
recommendation as to whether the motion for a default judgment should be granted,
and if so, whether damages should be awarded, including reasonable attorney’s fees
and costs.

On February 12, 2014, Judge Lindsay issued a thorough report
recommending that a default judgment be granted and that the Plaintiff be awarded
an amount of $30,552.47 in unpaid minimum, overtime and spread of hours wages;
$32,450.04 in liquidated damages; and $492.60 in costs. Judge Lindsay recognized
that the Plaintiff is entitled to prejudgment interest under her New York Labor Law
claim. However, Judge Lindsay indicated that she could not recommend a precise
amount “because the plaintiff ha[d] not provided the court with a calculation that
specifies the unpaid state wages and overtime for which she has not recovered
FLSA liquidated damages.” Thus, Judge Lindsay recommended that the Plaintiff’s
request for prejudgment interest be denied “until she clarifies her calculation” in
this regard.
Judge Lindsay further recommended that the Plaintiff’s request for
attorneys’ fees be denied because she “ha[d] not provided the court with any
information concerning the level of experience of the attorneys who worked on the
case.” Judge Lindsay also noted that the Plaintiff utilized a “blended rate” of $275
per hour, “which makes the assessment even more difficult.” The Plaintiff
subsequently filed limited objections to Judge Lindsay’s report.
When a party objects to a magistrate judge's report and recommendation, the
district court makes a “de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). “After reviewing the Report–Recommendation, the Court
may ‘accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate judge.’” O'Diah v. Mawhir, No. 08–CV–322, 2011 WL
933846, at *1 (N.D.N.Y. Mar. 16, 2011) (quoting 28 U.S.C. § 636 (b)(1) (C)).
In the Plaintiff’s objections, she purports to clarify the extent of her
entitlement to prejudgment interest and her counsel’s litigation experience.
However, the Plaintiff presents no affidavit or other admissible evidence of these
expenses. “[A]ttorneys' fees cannot be awarded in the absence of records.”
Gissinger v. Yung, CV-04-0534 (BMC)(JO), 2007 WL 2228153, at *8 (E.D.N.Y.
July 31, 2007); see also New York State Ass'n for Retarded Children, Inc. v. Carey,
711 F.2d 1136, 1147-48 (2d Cir. 1983) (holding that the plaintiffs must substantiate
their claims for reimbursement). Accordingly, the Court denies the Plaintiff’s
objections without prejudice. If she chooses, the Plaintiff is directed to renew her
motion for prejudgment interest and attorneys’ fees with proper documentation
within thirty days of the date of this order.
For the foregoing reasons, it is hereby:
ORDERED, that Judge Lindsay’s Report and Recommendation is adopted
in its entirety. The Clerk of the Court is directed to enter a default judgment
in favor of the Plaintiff in the amount of $30,552.47 in unpaid minimum,
overtime and spread of hours wages; $32,450.04 in liquidated damages; and
$492.60 in costs. The Plaintiff’s limited objections are denied without
prejudice. If she chooses, the Plaintiff is directed to renew her motion for
prejudgment interest and attorneys’ fees, with proper documentation, within
thirty days of the date of this order. Otherwise, the Court will direct the
Clerk to mark this case as closed.

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SO ORDERED.
Dated: Central Islip, New York
March 5, 2014
Arthur D. Spatt
ARTHUR D. SPATT
United States District Judge

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