Zhang v. Asian Moon Restaurant Corp. et. al.

Filing 31

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION -- For the reasons set forth in the attached Memorandum & Order, I adopt the findings and recommendations in the 29 Report & Recommendation ("R&R") of Judge Anne Y. Shields. Ac cordingly, Plaintiff's Motion for Default Judgment, ECF No. 26, is granted and Plaintiff is awarded damages as follows: (1) unpaid minimum wage and overtime compensation, pursuant to both the FLSA and the NYLL, in the amount of $63,030.00; (2) spread of hours damages in the amount of $7,848.00; (3) liquidated damages, pursuant to both the FLSA and the NYLL, in the amount of $70,878.00; (4) $10,000.00 in damages for violations of the Wage Theft Prevention Act; (5) pre-jud gment interest through the date of the R&R in the amount of $17,287.72, with additional interest to be calculated at a rate of $17.48 per day through the date of judgment; and (6) post-judgment interest, to be calculated by the Clerk of the Court, pursuant to 28 U.S.C. § 1961. Further, Plaintiff is awarded $12,930.00 in attorney's fees, and costs in the amount of $733.50. The Clerk of the Court is directed to enter judgment accordingly. Plaintiff is directed to s erve a copy of this Order on Defendants Asian Moon Restaurant Corp. d/b/a Asian Moon, Vickie S Li, and Sherry Li by certified mail and to file proof of service no later than May 16, 2022. Ordered by Judge Diane Gujarati on 5/9/2022. (Almonte, Kelly)

Case 2:20-cv-02776-DG-AYS Document 31 Filed 05/09/22 Page 1 of 3 PageID #: 241

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
Chengcheng Zhang, Individually and
on behalf of all others similarly
situated,
Plaintiff,
-against-

MEMORANDUM & ORDER
20-CV-02776 (DG) (AYS)

Asian Moon Restaurant Corp. d/b/a
Asian Moon, Vickie S Li, Sherry Li,
Defendants.
--------------------------------------------------------------X
DIANE GUJARATI, United States District Judge:
On June 23, 2020, Plaintiff Chengcheng Zhang commenced this action against
Defendants Asian Moon Restaurant Corp. d/b/a Asian Moon, Vickie S Li, and Sherry Li
(collectively, “Defendants”), alleging violations of the Fair Labor Standards Act (“FLSA”) and
the New York Labor Law (“NYLL”). See generally Complaint, ECF No. 1. Defendants were
served, see Executed Summonses, ECF Nos. 10 & 14, but did not appear in the action. The
Clerk of the Court entered default against Asian Moon Restaurant Corp. on June 2, 2021, see
Entry of Default, ECF No. 17, and against Vickie S Li and Sherry Li on December 8, 2021, see
Entry of Default, ECF No. 25.
On January 3, 2022, Plaintiff moved for default judgment against Defendants under
Federal Rule of Civil Procedure 55(b). See Motion for Default Judgment (the “Motion”), ECF
No. 26; Memorandum of Law in Support of Plaintiff’s Motion for a Default Judgment, ECF No.
26-1.
On January 4, 2022, I referred the Motion to Magistrate Judge Anne Y. Shields for a
Report and Recommendation (“R&R”). See January 4, 2022 Order.

Case 2:20-cv-02776-DG-AYS Document 31 Filed 05/09/22 Page 2 of 3 PageID #: 242

On March 15, 2022, Judge Shields issued an R&R recommending that Plaintiff’s motion
for default judgment be granted and that damages be awarded as follows: (1) unpaid minimum
wage and overtime compensation, pursuant to both the FLSA and the NYLL, in the amount of
$63,030.00; 1 (2) spread of hours damages in the amount of $7,848.00; (3) liquidated damages,
pursuant to both the FLSA and the NYLL, in the amount of $70,878.00; (4) $10,000.00 in
damages for violations of the Wage Theft Prevention Act (“WTPA”); (5) pre-judgment interest
through the date of the R&R in the amount of $17,287.72, with additional interest to be
calculated at a rate of $17.48 per day through the date of judgment; 2 and (6) post-judgment
interest, to be calculated by the Clerk of the Court, pursuant to 28 U.S.C. § 1961. See R&R at
20, ECF No. 29. The R&R further recommended that Plaintiff be awarded $12,930.00 in
attorney’s fees, and costs in the amount of $733.50, for a total monetary award of $182,707.22,
plus additional interest. See id. at 20-21.
Plaintiff filed proof of service of the R&R on March 18, 2022. See ECF No. 30. No
objection to the R&R has been filed, and the time for doing so has passed. See R&R at 21.
A district court “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); see also Fed. R. Civ. P.
72(b). To accept those portions of an R&R to which no timely objection has been made, “a
district court need only satisfy itself that there is no clear error on the face of the record.” Jarvis
1

In describing how unpaid overtime wages are to be calculated, the R&R provides that
“[u]npaid overtime wages are calculated by multiplying the wage rate by 0.5 to determine the
amount owed per hour for every hour over 40 hours worked.” See R&R at 9. The reference to
“0.5” appears to be a typographical error. The R&R correctly calculates the rate of overtime
pay by multiplying the wage rate by 1.5. See id. at 13-14.

2

The R&R sets forth the calculation for determining the pre-judgment interest on Plaintiff’s
NYLL damages award as ($102,675.00 x 9%)/365 days. See R&R at 17. The reference to
“$102,675.00” appears to be a typographical error. The R&R correctly calculates the daily
interest at $17.48 based on the following calculation: ($70,878.00 x 9%)/365 days. See id.
2

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v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163 (E.D.N.Y. 2011) (quotation marks
omitted).
I have reviewed Judge Shields’s R&R, and, having found no clear error, adopt the
findings and recommendations in the R&R.
Accordingly, Plaintiff’s Motion for Default Judgment, ECF No. 26, is granted and
Plaintiff is awarded damages as follows: (1) unpaid minimum wage and overtime compensation,
pursuant to both the FLSA and the NYLL, in the amount of $63,030.00; (2) spread of hours
damages in the amount of $7,848.00; (3) liquidated damages, pursuant to both the FLSA and the
NYLL, in the amount of $70,878.00; (4) $10,000.00 in damages for violations of the WTPA; (5)
pre-judgment interest through the date of the R&R in the amount of $17,287.72, with additional
interest to be calculated at a rate of $17.48 per day through the date of judgment; and (6) postjudgment interest, to be calculated by the Clerk of the Court, pursuant to 28 U.S.C. § 1961.
Further, Plaintiff is awarded $12,930.00 in attorney’s fees, and costs in the amount of $733.50.
The Clerk of the Court is directed to enter judgment accordingly.
Plaintiff is directed to serve a copy of this Order on Defendants Asian Moon Restaurant
Corp. d/b/a Asian Moon, Vickie S Li, and Sherry Li by certified mail and to file proof of service
no later than May 16, 2022.
SO ORDERED.
/s/ Diane Gujarati
DIANE GUJARATI
United States District Judge
Dated: May 9, 2022
Brooklyn, New York

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