Azkour v. Little Rest Twelve, Inc. et al
Filing
326
OPINION AND ORDER: For the reasons set forth above, IT IS HEREBY ORDERED THAT Plaintiff's request for pre-judgment interest is DENIED. The Clerk of the Court is respectfully directed to terminate the motion pending at docket entry number 323. (Signed by Judge Richard J. Sullivan on 3/23/2015) Copies Sent By Chambers. (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: ~~~~~~
HICHAM AZKOUR,
DATE FILED:
1--"2 ) ·- /\
Plaintiff,
No. 10-cv-4132 (RJS)
OPINION AND ORDER
-v-
LITTLE REST TWELVE,
Defendant.
RI CHARD J. SULLIVAN, District Judge:
Plaintiff brings this action asserting claims for violations of the Fair Labor Standards Act
("FLSA") and the New York Labor Law ("NYLL"). (Doc. No. 1.) Now before the Court is a
letter request by Plaintiff, dated March 17, 2015 and filed on March 18, 2015, seeking that the
Court order pre-judgment interest pursuant to the New York Labor Law on his damages award.
(Doc. No. 323.) For the reasons set forth below, the Court denies the request.
A. Background
Plaintiff filed this action on May 19, 2010, alleging FLSA and NYLL claims for, inter
alia, unpaid overtime, failure to pay minimum wage, unjust enrichment, and retaliatory
termination. (Doc. No. 1.) On March 27, 2012 , following Plaintiffs motion for summary
judgment as to liability, the Court fully adopted the Report and Recommendation (Doc. No. 91)
of the Honorable Kevin Nathaniel Fox, Magistrate Judge, and entered partial summary judgment
in Plaintiffs favor on his FLSA and NYLL wage and hour claims, NYLL spread-of-hours claim,
FLSA and NYLL retaliation claims, and FLSA and NYLL liquidated damages claims. (Doc.
No. 98.) On July 21 - 22, trial commenced on the issues of back pay and punitive damages. After
deliberating, the jury found for Plaintiff on both issues, finding that twelve weeks of Plaintiffs
unemployment were proximately caused by Defendant's unlawful termination of Plaintiff and
that Defendant was liable for $50,000 in punitive damages. (See Doc. No. 279.) On February
11 , 2015, after the parties filed post-trial motions, the Court issued an Opinion and Order which
denied Plaintiff's post-trial motions, granted Defendant's motion for judgment as a matter of law
with respect to the issue of punitive damages, and denied the balance of Defendant' s post-trial
motions. (Doc. No. 317 (the "February 11 Order").) On February 13, 2015 , the Court issued a
judgment in favor of Plaintiff in the amount of $20, 128.32, equal to 12 weeks of post-termination
back pay plus an equivalent amount in FLSA liquidated damages. (Doc. No. 318 (the "Order
and Judgment'').) The Order and Judgment was entered on the public docket sheet on February
17, 2015. On February 17, 2015, Plaintiff filed a notice of appeal of the February 11 Order in
the United States Court of Appeals for the Second Circuit. (Doc. No. 319.) On March 18, 2015,
Plaintiff filed the instant letter request for the Court to order pre-judgment interest on his
damages award under the New York Labor Law. (Doc. No. 323.)
8. Discussion
The Court notes at the outset that a motion for pre-judgment interest after the entry of
judgment is properly construed as a motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e). See, e.g., Kazazian v. Bartlett & Bartlett LLP, No. 03-cv-7699(LAP),
2007 WL 4563909, at *2 (S.D.N .Y. Dec. 19, 2007) ("Plaintiffs motion for mandatory prejudgment interest is properly a Rule 59(e) motion to amend, and not a Rule 60 motion." (citing
Osterneck v. Ernst & Whinney, 489 U.S. 169, 174-76 (1989)). Although a notice of appeal
usually divests the district court of jurisdiction, where a party timely files a motion under Rule
59, the district court retains jurisdiction to entertain the motion, even where the notice of appeal
was filed prior to the Rule 59 motion. See Fed. R. App. P. 4(a)(4)(B)(i ) ("'If a party files a notice
of appeal after the court announces or enters a judgment - but before it disposes of any motion
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listed in Rule 4(a)(4)(A) [including a motion under Rule 59] - the notice becomes effective to
appeal a judgment or order, in whole or in part, when the order disposing of the last such
remaining motion is entered."); Smith v. City of New York, No. 12-cv-8131 (JGK), 2014 WL
2575778, at *1 (S.D.N.Y. June 9, 2014) ("This principle applies even when the motion for
reconsideration is filed after the notice of appeal."). However, where a notice of appeal has been
filed and the Rule 59 motion is not timely, the court lacks the jurisdiction to consider the motion,
because - unlike in the context of a timely Rule 59 motion - the appeal is not held in abeyance
by the circuit court pursuant to Appellate Rule 4(a)(4)(B). See Bentley v. Varsames, 164 F.3d
617, 617 (2d Cir. 1998) ('·[B]ecause Bentley' s Rule 59(e) motion was not timely, the District
Court lacked jurisdiction to consider it."). Motions under Rule 59 must be filed within 28 days
of the entry of judgment. (See Fed. R. Civ. P. 59(e).)
Here, Plaintiff's letter requesting pre-judgment interest was dated March 17, 2015 - the
28th day after the Order and Judgment was filed. However, the stamp on the letter indicating
receipt by the Southern District of New York Pro Se Office specifies that the letter was actually
received by the Court on March 18, 2015. Of course, the filing date for a motion must be
detennined with respect to when it was actually filed - or, in the case of a prose litigant, when it
was received by the Pro Se Office. Cf Toliver v. Sullivan Cnty., 841 F.2d 41 , 42 (2d Cir. 1988)
(treating receipt of complaint by pro se clerk as relevant date for determining whether action was
barred by statute of limitations). The fact that the Jetter was apparently written before 28 days
had passed is irrelevant. As such, the Court lacks jurisdiction or authority to entertain Plaintiff's
request. See Bentley, 164 F.3d at 617; see also Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58, 103 S. Ct. 400, 402, 74 L. Ed. 2d 225 (1982) ("The filing of a notice of appeal is an
event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the
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district court of its control over those aspects of the case involved in the appeal."). Accordingly,
Plaintiff's request for pre-judgment interest is denied.
C. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED THAT Plaintiff's request for
pre-judgment interest is DENIED. The Clerk of the Court is respectfully directed to tenninate
the motion pending at docket entry number 323.
SO ORDERED.
Dated:
RI~
~)
March 23, 2015
New York, New York
UNITED STATES DISTRICT JUDGE
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A copy of this Order has been sent to:
H icham.azkour@gmaiI.com
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