Fu v. Pop Art International, Inc. et al
Filing
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OPINION & ORDER: Finding no clear error in Magistrate Judge Peck's Report other than the adjustments necessary to calculate prejudgment interest, the Report is adopted with the modifications described above. The Clerk of Court shall enter judgme nt against the Defendant for $41,571.98 in unpaid overtime wages, $26,098.00 in liquidated damages, $350.00 in costs, and $17,016.04 in prejudgment interest. The Clerk of Court shall close the case. The parties' failure to fi le written objections precludes appellate review of this decision, except for the rate of prejudgment interest. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). (Signed by Judge Denise L. Cote on 12/6/2011) (rdz) Modified on 12/7/2011 (rdz).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
LI PING FU,
:
Plaintiff,
:
:
-v:
:
POP ART INTERNATIONAL, INC.,
:
:
Defendant.
:
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10 Civ. 8562 (DLC)
OPINION & ORDER
Appearances:
For plaintiff:
Jeffrey Charles Neiman
Giuttari and Mertz Law Office, P.C.
45 West 34 Street, Suite 307
New York, NY 10001
DENISE COTE, District Judge:
On May 20, 2011, the Court entered a default in favor of
the plaintiff Li Ping Fu (“Fu”), and referred the matter to
Magistrate Judge Andrew J. Peck for an inquest and Report and
Recommendation as to damages (“Report”).
Judge Peck issued his Report.
objections to the Report.
On September 19, 2011,
Neither party has submitted
For the following reasons, the
Report’s recommendations are adopted with modifications and a
default judgment is entered against defendant Pop Art
International Inc. (“Defendant”).
When deciding whether to adopt a report, a 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)(C).
To accept those portions of the report 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.”
King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL
2001439, at *4 (S.D.N.Y. July 8, 2009) (citation omitted).
Fu filed his complaint on November 12, 2010.
The complaint
asserts claims for, inter alia, unpaid overtime wages and unpaid
spread of hours wages pursuant to the Fair Labor Standards Act
(“FLSA”), as amended, 29 U.S.C. §§ 201 et. seq, and the New York
State Minimum Wage Act.
The complaint also seeks interest,
costs, and attorneys’ fees.
The Report makes the following recommendations as to
damages to be recovered by Fu’s claims.
First, the Report
correctly applies the rule approving the holding of an inquest
by affidavit without an in-person hearing when the Court has
“ensured there was a basis for the damages specified in the
default judgment.”
Transatlantic Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (citation
omitted).
The Report also correctly accepts Fu’s estimates of
hours worked in his affidavit of July 19 absent rebuttal by the
defendant.
See, e.g., Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687-88 (1946).
Second, the Report correctly notes that plaintiff’s
counsel, when calculating overtime wages, rounded partial weeks
2
up or down to the nearest week.
As a result of these rounding
errors, the plaintiff’s affidavit fails to credit Fu for some
amount of unpaid overtime.
The Report recommends that the Court
decline to correct this mistake because plaintiff’s counsel had
two opportunities to file inquest submissions.
no clear error in this recommendation.
The Court finds
Using these rounded
figures, the Report then correctly calculates an award of
$41,571.98 for unpaid overtime wages.
Third, the Report correctly recommends that Fu be awarded
100% liquidated damages under FLSA beginning three years prior
to the filing of his complaint, on November 12, 2007.
U.S.C. §§ 216(b), 255(a).
See 29
The Report also correctly recommends
that Fu be awarded 25% liquidated damages under New York law
beginning six years prior to the filing of his complaint, on
November 12, 2004, because Fu alleges that the defendant’s
violations were “willful” and Pop Art defaulted.
§§ 198(1-a), 198(3), 663(1), 663(3).
N.Y. Labor Law
The Report notes that
courts in this Circuit are split as to whether a plaintiff may
recover both federal and state liquidated damages for the same
overtime violation, and recommends awarding liquidated damages
pursuant only to FLSA beginning on November 12, 2007.
The Court
finds no clear error in this recommendation, and thus adopts the
Report’s calculation of $26,098 in liquidated damages.
Fourth, the Report correctly awards $350 in costs to the
3
plaintiff, taking judicial notice of the Court’s own filing fee
while excluding those other costs for which the plaintiff did
not supply supporting documentation.
The Report also correctly
denies the plaintiff’s request for attorneys’ fees, even though
he is entitled to such fees under the FLSA and New York Labor
Law, because he failed to provide the Court with contemporaneous
time records.
See, e.g., Scott v. City of New York, 626 F.3d
130, 133 (2d Cir. 2010) (“[A]bsent unusual circumstances
attorneys are required to submit contemporaneous records with
their fee applications.”).
Fifth, the report correctly recommends that Fu not be
awarded damages under New York’s spread of hours provision.
Under this provision, an “employee shall receive one hour’s pay
at the basic minimum hourly rate, in addition to the minimum
wage required by [New York’s minimum wage law], for any day in
which . . . the spread of hours exceeds 10 hours.”
Codes R. Regs. Tit. 12 § 142-2.4.
N.Y. Comp.
On those days in which Fu’s
spread of hours exceeded 10 hours –- in this case, every day he
worked -- Fu earned more than the minimum wage required by New
York’s minimum wage law.
He is thus not entitled to damages
under § 142-2.4.
Lastly, the Report does not address the issue of
prejudgment interest.
Prejudgment interest may not be awarded
in addition to liquidated damages for violations of FLSA.
4
Brock
v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988).
But
prejudgment interest and liquidated damages may both be awarded
for violations of New York Labor Law because “[p]re-judgment
interest and liquidated damages under the Labor Law are not
functional equivalents.”
Reilly v. Natwest Narkets Group Inc.,
181 F.3d 253, 265 (2d Cir. 1999).
The purpose of prejudgment
interest under FLSA is “to compensate a plaintiff for the loss
of use of money.”
Id.
By contrast, “liquidated damages under
the Labor Law constitute a penalty.”
Id. (citation omitted).
Fu is thus entitled to prejudgment interest on the basis of the
New York Labor Law beginning on November 12, 2004.
Cf. Thomas
v. iStar Financial, Inc., 629 F.3d 276, 280 n.2 (2d Cir. 2010)
(“[W]here prejudgment interest can only be awarded on the basis
of what is solely a state claim, it is appropriate to use the
state interest rate.”).
Sections 5001 and 5004 of New York’s
Civil Practice Law and Rules provide for a prejudgment interest
rate of nine percent, calculated “[w]here such damages were
incurred at various times, . . . from the date it was incurred
or upon all of the damages from a single reasonable intermediate
date.”
N.Y. CPLR §§ 5001(b), 5004.
Prejudgment interest is
thus calculated from May 21, 2007, the midpoint of the period
beginning on November 12, 2004 up to and including the date of
this Opinion.
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CONCLUSION
nding no clear error in Magistrate Judge Peck's Report
ot
r than t
adjustments necessary to calculate prejudgment
interest, the Report is adopted with t
above.
modifications described
The Clerk of Court shall enter judgment against
Defendant for $41,571.98 in unpaid overtime wages, $26,098.00 in
liquidated damages, $350.00 in costs, and $17,016.04 in
prejudgment interest.
The parties'
The Clerk of Court shall close the case.
failure to file written objections pr
appellate review of this
prejUdgment interest.
F.3d 34,
38
udes
sion, except for the rate of
See United States v. Male Juvenile, 121
(2d Cir. 1997).
SO ORDERED:
Dated:
New York, New York
December 6, 2011
D~'C~~~:~E---------United States District Judge
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