1199 SEIU United Healthcare Workers East v. South Bronx Metal Health Council, Inc.

Filing 24

REPORT AND RECOMMENDATION re: 1 Complaint filed by 1199 SEIU United Healthcare Workers East: For the reasons set forth above, I recommend that SEIU be awarded $501,298.69 in back pay due under the federal and NY WARN Acts, $4,647.00 in at torneys' fees, and $610.00 in costs, for a total monetary award of $506,555.69. Pursuant to 28 U. S. C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days fr om this date to file written objections to this Report and Recommendation. Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable John G. Koeltl, Room 1030, and to the chambers of the u ndersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. Objections to R&R due by 12/2/2013 (Signed by Magistrate Judge James C. Francis on 11/13/2013) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
1199 SEIU UNITED HEALTHCARE
: 13 Civ. 2768 (JGK) (JCF)
WORKERS EAST,
:
:
REPORT AND
Plaintiff,
:
RECOMMENDATION
:
- against :
:
SOUTH BRONX MENTAL HEALTH COUNCIL, :
INC.,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE JOHN G. KOELTL, U.S.D.J.:
The
(“SEIU”),

plaintiff,
brings

1199

this

SEIU

action

United
pursuant

Healthcare
to

the

Workers

federal

East

Worker

Adjustment and Retraining Notification Act (the “WARN Act”), 29
U.S.C. § 2101 et seq., and its New York analog (the “NY WARN Act”),
New York Labor Law (“NYLL”) § 860 et seq., on behalf of its members
formerly employed by the defendant South Bronx Mental Health
Council (“SBMHC”).

The plaintiff alleges that SBMHC violated the

federal and NY WARN Acts by providing inadequate notice before
shutting down operations of their mental health clinics.

The

Honorable John G. Koeltl, U.S.D.J., granted judgment by default
against SBMHC and referred this case to me for the calculation of
damages.

(Order of Default dated July 25, 2013 at 1).

On

September 27, 2013, I held an inquest, and although notice was sent
to the defendant, it did not appear.

1

The following findings are

therefore based on SEIU’s submissions.

For the reasons set forth

below, the plaintiff should be awarded damages in the amount of
$501,298.69.

In

addition,

the

plaintiff

should

be

granted

attorneys’ fees and costs in the amount of $5,257.
Background
SBMHC was a nonprofit community health organization in the
Bronx, where it operated four clinics.
8).

(Complaint (“Compl.”), ¶

The plaintiff is the exclusive bargaining representative of

SBMHC’s former clerical and direct care employees. (Compl., ¶ 6).
On March 5, 2013, SBMHC sent notification to SEIU that, due to “an
unexpected and unforeseeable crisis in [SBMHC’s] funding stream,”
SBMHC would be temporarily laying off nine employees represented by
SEIU.

(Letter of Vicky Gatell dated March 5, 2013 (“Gatell

Letter”), attached as Exh. A to Compl.).
effective the following day.

The layoffs would be

(Gatell Letter).

On March 19, 2013,

SBMHC sent a letter informing SEIU that it would be permanently
closing all of its clinics by the end of the month.

(Letter of

Humberto L. Martinez dated March 19, 2013, attached as Exh. B to
Compl.).

Although the letter referenced the federal WARN Act and

the NY WARN Act, it was sent only 10 to 12 days before the clinics
were to be closed.
closings.

It did not provide a rationale for the

SEIU contends that as SBMHC was well aware of its

financial difficulties as early as January 30, 2013, the defendant

2

has no justification for providing its employees with such limited
notice.

(Compl., ¶ 23).

One clinic, at 781 East 142 Street, was

closed on March 29, 2013, and the remaining three locations were
closed two days later.

(Compl., ¶ 15).

“[V]irtually all of

[SBMHC’s] employees at all of its locations” were terminated.
(Compl., ¶ 15).
Discussion
A. Jurisdiction
This

Court

has

subject

matter

jurisdiction

over

the

plaintiffs’ federal WARN Act claim pursuant to 28 U.S.C. § 1331 and
29 U.S.C. § 2104(a)(5), and over the NY WARN Act claim pursuant to
28 U.S.C. § 1367.
and

doing

As SBMHC is a non-profit corporation organized

business

in

New

York,

it

is

subject

to

personal

jurisdiction in this Court pursuant to New York Civil Practice Law
and Rules § 301.
B. Liability
When defendants default, all of the facts alleged in the
complaint, except those relating to the amount of damages, must be
accepted as true.

See Lenard v. Design Studio, 889 F. Supp. 2d

518, 526 (S.D.N.Y. 2012) (citing Au Bon Pain Corp. v. Artect, Inc.,
653 F.2d 61, 65 (2d Cir. 1981)).

Nonetheless, a court “must still

satisfy itself that the plaintiff has established a sound legal
basis upon which liability may be imposed.”

3

Jemine v. Dennis, 901

F. Supp. 2d 365, 373 (E.D.N.Y. 2012); see also GAKM Resources LLC
v. Jaylyn Sales Inc., No. 08 Civ. 6030, 2009 WL 2150891, at *2
(S.D.N.Y. July 20, 2009).
1. Federal WARN Act
Congress enacted the federal WARN Act to ensure that workers
receive advance notice before plant closings and mass layoffs. See
Grimmer v. Lord Day & Lord, 937 F. Supp. 255, 256 (S.D.N.Y. 1996).
This advance notice allows workers transition time to seek new
jobs, and, if necessary, enter skills training programs.

See id.;

29 C.F.R. § 639.1.
A business enterprise with more than 100 full time employees
qualifies

as

an

employer

under

the

WARN

Act,

29

U.S.C.

§

2101(a)(1), and must give workers 60 days notice before any plant
closing or mass layoff, 29 U.S.C. § 2102.

If an employer that

orders a plant closing fails to give the required notice, it is
liable to each affected employee for back pay and benefits for the
period of violation.

29 U.S.C. at § 2104(a)(1).

2. NY WARN Act
The NY WARN Act largely mirrors the federal WARN Act, with
three material differences.

First, it sets a lower trigger

threshold for its protections.

“Employer” includes all employers

that employ more than 50 full time employees, as opposed to 100,
NYLL

§

860-a(3),

and

a

“plant

4

closing”

is

defined

as

the

termination of at least 25, as opposed to 50, employees at a single
site of employment, NYLL § 860-a(6).

Second, its notification

requirements are stricter, and require employers to give 90 days
notice before plant closings or mass layoffs, as opposed to 60
days.

NYLL § 860-b(1).

Finally, it provides for administrative

enforcement in addition to private suits.

NYLL § 860-f.

Given

these stricter requirements, wherever there is liability under the
federal WARN Act, there is necessarily liability under the NY WARN
Act.
3. Application
As SMBHC employed 108 SEIU members on a full-time basis
(Compl., ¶ 9), SMBHC is considered an employer under both the
federal and NY WARN Acts, 29 U.S.C. § 2101(a)(1); NYLL § 860-a(3),
and therefore is required to provide advance notice before any
“plant closing” that results in employment loss for 50 or more
employees at a single site of employment, 29 U.S.C. § 2101(a)(2);
NYLL 860-a(6).

The plaintiff contends that by shutting down

operation of its four clinics, the defendant’s actions constitute
a “plant closing” under the WARN Act.
The first step in determining whether a “plant closing” under
WARN has occurred is to establish whether “the requisite number of
employees suffered an ‘employment loss’” at a single site of
employment.

New York’s Health & Human Services Employees Union,

5

1199/SEIU, AFL-CIO v. Grossman, No. 02 CV 6031,
at *20 (E.D.N.Y. Oct. 3, 2007).

2007 WL 2907386,

“‘[W]hen fewer than fifty full-

time employees suffer an “employment loss,” WARN notice is not
required.’”

Local 819, International Brotherhood of Teamsters,

AFL-CIO v. Textile Deliveries, Inc., No. 99 Civ. 1726, 2000 WL
1357494, at *3 (S.D.N.Y. Sept. 20, 2000) (quoting

International

Alliance of Theatrical and Stage Employees and Moving Picture
Machine Operators, AFL-CIO v. Compact Video Services, Inc., 50 F.
3d 1464, 1466 (9th Cir. 1995)); Martin v. AMR Services Corp., 877
F. Supp. 108, 117 (E.D.N.Y. 1995), aff’d sub nom. Gonzalez v. AMR
Services Corp., 68 F.3d 1529 (2d Cir. 1995) (holding no WARN
requirements triggered where fewer than 50 employees suffered
employment loss).

SEIU has shown that 114 of its members lost

their jobs when the defendant shut down operations at four distinct
clinics.

(Compl., ¶¶ 9, 15).

The next step is to determine whether SBMHC’s four facilities
should be considered a “single site of employment.” Neither the
federal statute nor the NY WARN Act define this term.

The

applicable regulations offer guidance, providing that separate
locations may be considered a single site of employment if “they
are in reasonable geographic proximity, used [by the employer] for
the same purpose, and share the same staff or equipment.”

20

C.F.R. § 639.3(i)(3); N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit.

6

12, § 921-1.1(p)(iii).

Absent “the same staff or operational

purpose,” separate facilities should not be considered a single
site. 20 C.F.R. § 639.3(i)(4); 12 NYCRR § 921-1.1(p)(v) (no single
site of employment where there is “separate management, produce
different products or provide different services, and have separate
workforces.”).

“For example, assembly plants which are located on

opposite sides of a town and which are managed by a single employer
are separate sites if they employ different workers.”

20 C.F.R. §

639.3(i)(4).
Courts outside this district, in examining the legislative
history of the WARN Act, have concluded that although “the phrase
‘single

site

of

employment’

is

to

be

given

a

narrow

interpretation,” “there may be circumstances when geographically
separate

workplaces

may

be

aggregated”

as

a

single

site

of

employment. United Food & Commercial Workers Union Local No. 72 v.
Giant Markets, Inc., 878 F. Supp. 700, 706 (M.D. Pa. 1995); see
also Austen v. Catterton Partners V, LP, 268 F.R.D. 146, 150 (D.
Conn. 2010).

The most decisive consideration, as highlighted in

the regulations, is whether the work sites are either contiguous or
in “reasonable geographic proximity.”
has

been

established,

“the

Once the issue of proximity

operational,

managerial

and

labor

variables become the decisive factors.” Frymire v. Ampex Corp., 61
F.3d 757, 766 (10th Cir. 1995); see also Bader v. North Line

7

Layers, Inc., 503 F.3d 813, 817–19 (9th Cir. 2007); Austen, 268
F.R.D. at 150-51.
Here, all four clinics were located in the South Bronx, in
“reasonable geographic proximity” with no facility located more
than 2.5 miles from another.

(Affidavit of Susan Cameron dated

Oct. 25, 2013 (“Cameron 10/25/13 Aff.”), ¶ 5).
four

facilities

management.”

had

“interrelated

Furthermore, the

operations

(Cameron 10/25/13 Aff., ¶ 7).

and

common

All staffing and

managerial decisions were handled in a centralized manner, staff
and equipment were regularly shifted between the four facilities,
and SBMHC issued a single payroll report.

(Cameron 10/25/13 Aff.,

¶¶ 6-11). As the defendant in this case has defaulted, these facts
are taken as true.

See, e.g., Chen v. Jenna Lane, Inc., 30 F.

Supp. 2d 622, 623 (S.D.N.Y. 1998).

Other courts confronting

similar facts have considered the “frequency of employee and
equipment interchange as well as the day-to-day management and
operation of each [facility] in question” as the most salient facts
for determining whether separate facilities may be a single site of
employment.

United Food & Commercial Workers Union Local No. 72,

878 F. Supp. at 703; see also Gorini v. AMP Inc., 94 F. App’x 913,
920-21

(3d

together,

Cir.

and

2004)

shared

(separate

employees,

buildings
job

functions,

considered a single site of employment).

8

that

were
and

“close

services”

Here, the four clinics may be considered a single site of
employment under the WARN Acts.

This is consistent with the

purpose behind the WARN Act and its regulations, which “plainly
focus on whether the resulting job loss will be concentrated in one
geographic area.” Teamsters Local Union 413 v. Driver’s, Inc., 101
F. 3d 1107, 1109 (6th Cir. 1996).
C. Damages
The

plaintiff

claims

damages

of

$1,411,417.16,

of

which

exactly half are attributed to federal WARN Act violations and the
other half to the NY WARN Act. (Proposed Findings of Fact and
Conclusions of Law (“Findings of Fact”), ¶ 29).

Both statutes

provide the same formula for calculating damages.

The rate of

compensation is the higher of (1) the average regular rate received
by

such

employee

employment,
employee.

or

during

(2)

the

the
final

last

3

regular

years
rate

of

the

employee’s

received

29 U.S.C. § 2104(a)(1)(A); NYLL 860-g(1)(a).

by

such

Liability

is to be calculated “for the period of the violation, up to a
maximum of 60 days.”

29 U.S.C. § 2104(a)(1); NYLL 860-g(2).

1. Concurrent Liability
The plaintiff points to language in both the federal WARN Act
and in the NY WARN Act’s implementing regulations that their
respective rights and remedies “are in addition to, and not in lieu
of” other statutory rights and remedies as allowing for recovery

9

under both Acts.

29 U.S.C. § 2105; 12 NYCRR § 921-9.1. However,

the NY WARN Act states that an employer’s liability “shall be
reduced” by “[a]ny liability paid by the employer under any
applicable federal law governing notification of mass layoffs,
plant closings, or relocations.” NYLL § 860-g(5). The plaintiff’s
claims arise out of a single incident, and it cannot collect under
both the federal and the state WARN Acts.
2. Individual Calculations
Damages can be determined based on evidence presented at an
inquest, detailed affidavits, or documentary evidence.

See Chun

Jie Yin v. Kim, No. 07 CV 1236, 2008 WL 906736, at *3 (E.D.N.Y.
2008) (collecting cases).

The plaintiff has provided daily wage

calculations for each affected employee based on his or her final
average weekly pay.

(Payment in Lieu of Proper WARN Notice

(“Damages Calculations”), attached as Exh. A to Findings of Fact).
The employees can be grouped into four categories: those who
received 10 days of notice, those who received 12 days of notice,
those who were laid off effective March 6, 2013, and those who
worked

for

SBMHC

Calculations).

for

fewer

than

four

months.

(Damage

To calculate the damages due, the plaintiff then

subtracts the days of notice given before the clinics shut down
from the mandatory 60 day notice period.

(Damages Calculations).

The remaining number of days is then multiplied by the employee’s

10

average daily wage.
employees

who

worked

(Damage Calculations).
for

SBMHC

for

fewer

For the several
than

four

months,

liability was calculated, pursuant to the WARN Act, as “one-half
the number of days that the employee was employed by the employer.”
29 U.S.C. § 2104(a)(1); NYLL § 860-g(2); (Damage Calculations).
The nine employees subject to “temporary layoffs” as of March
6, 2013, with no notice provided, were entitled to a full 60 days’
notification from the date of their layoff.

Because the defendant

specified that the layoff was temporary (Gatell Letter), these
employees

had

a

reasonable

expectation

of

being

recalled.

“‘[U]nder the WARN Act, when an affected employee’s layoff date is
earlier than the date of the plant shutdown, the affected employee
is entitled to notice of the closing 60 days before the date of
that employee’s layoff.’” Presser v. Key Food Stores Co-operative,
Inc., No. 01 CV 8059, 2006 WL 2086346, at *15 (E.D.N.Y. July 25,
2006) (quoting United Mine Workers of America v. Martinka Coal Co.,
202 F. 3d 717 (4th Cir. 2000)), aff’d, 316 F. App’x 9 (2d Cir.
2009); cf. In re Mr. Goodbuys of New York Corp., 164 B.R. 24, 29
(Bankr. E.D.N.Y. 1994) (employee laid off more than 90 days before
mass layoffs did not qualify as “affected employee” under WARN
Act).
3. Days of Violation
SEIU’s calculations include back pay for each calendar day

11

within the violation period, as opposed to each work day. (Damages
Calculation). Other circuits are divided on this issue, and it has
not yet been addressed by the Second Circuit.

Consistent with the

plaintiff’s position, the Third Circuit has adopted a “calendar
days” approach to calculating WARN Act damages, providing back pay
for each of the 60 days of the violation period.

See United

Steelworkers of America v. North Star Steel Co., 5 F.3d 39, 42-44
(3d

Cir.

1993);

see

also

United

Mine

Workers

of

America,

International Union v. Eighty-Four Mining Co., 159 F. App’x 345,
346 (3d Cir. 2005); Ciarlante v. Brown & Williamson Tobacco Corp.,
143 F.3d 139, 150 & n.11 (3d Cir. 1998).

Every other circuit to

have considered the issue, however, applies a “work days” approach
that provides back pay only for the work days within the 60 day
notification period.

See Joe v. First Bank System, Inc., 202 F.3d

1067, 1072 (8th Cir. 2000); Burns v. Stone Forest Industries, Inc.,
147

F.3d

1182,

1182-83

(9th

Cir.

1998);

Saxion

v.

Titan-C-Manufacturing, Inc., 86 F.3d 533, 558–61 (6th Cir. 1996);
Frymire, 61 F.3d at 771–72; Carpenters District Council of New
Orleans & Vicinity v. Dillard Department Stores, Inc., 15 F.3d
1275, 1282–1286 (5th Cir. 1994).
The federal WARN statute states, in pertinent part, that
employers are liable for “back pay for each day of the violation.”
29 U.S.C. § 2104(a)(1)(A). “Such liability shall be calculated for

12

the period of the violation, up to a maximum of 60 days, but in no
event for more than one-half the number of days the employee was
employed

by

the

employer.”

29

U.S.C.

§

2104(a)(1).

notification period, however, is calculated in calendar days.

The
29

U.S.C. § 2102.
The reasoning of the circuits that adopted a work day approach
is persuasive. While the use of “day” is ambiguous, the term “back
pay” has a common meaning that is easily ascertainable.
Dillard, 15 F.3d at 1283.

See

If SBMHC’s employees had been provided

the statutorily required 60 calendar days of notice, they would
have had the full period to seek alternative employment but
nonetheless would have received pay only for the days they worked.
This interpretation is consistent with the purpose behind the WARN
Act, which seeks to provide “a two-month uninterrupted income
stream facilitating a job search.” See Burns, 147 F.3d at 1184-85.
Thus, the damages here should be calculated per work day within the
violation period.

Accord In re Jamesway Corp., 235 B.R. 329, 344-

45 (Bankr. S.D.N.Y. 1999) (adopting work day approach to calculate
WARN damages).
Under this reasoning, the days of back pay provided by the
plaintiff should be revised downward to reflect only the work days
during the violation period.

As referenced above, there are four

distinct violation periods in this case, depending on when an

13

employee received notice of the shutdown. Assuming a Monday through
Friday work week, the employees that SEIU calculated as entitled to
48 days of back pay should instead receive 34 days worth of back
pay, the employees with 50 days of calculated back pay should
receive 36 days of back pay, and the employees with 60 days of
calculated back pay should receive 42 days of back pay.1

The

claims for employees whose back pay was calculated as one-half of
the days they were employed by SBMHC should also be adjusted to
reflect work days only.2
The plaintiff has provided the average daily wage for each
affected employee, drawn from SBMHC’s payroll records.

(Damage

Calculations).

can

Each

employee’s

individual

damages

be

calculated by multiplying his or her average daily wage by the
number of work days during the applicable violation period.
adding

up

all

$501,298.69.

employee

damages,

the

total

lump

sum

After
is

now

The plaintiff should apportion the damages among

their members in accordance with the explanation provided above.
D. Attorneys’ Fees & Costs
SEIU seeks $4,647 in attorneys’ fees.

Both the federal WARN

1

These revisions are based on the actual number of weekdays
during the period in question.
2

Miguel A. Lopez II is entitled to 26 days of back pay;
Bernis Medrano to 22.5 days, William Myers to 12.5 days, and
Francine Richardson to 12.5 days.
14

Act and the NY WARN Act authorize awarding reasonable attorneys’
fees to the prevailing party “as part of the costs.” 29 U.S.C. §
2104(a)(6); NYLL § 860-g(7).
An attorneys’ fees award should be based on the court’s
determination of a “presumptively reasonable fee.” Sandoval v.
Materia Bros. Inc., No. 11 Civ. 4250, 2013 WL 1767748, at *3
(S.D.N.Y. March 5, 2013) (citing Arbor Hill Concerned Citizens
Neighborhood Association v. County of Albany, 522 F.3d 182, 189-90
(2d Cir. 2008)).

This fee is reached by multiplying “a reasonable

hourly rate by the reasonable number of hours expended on the
case.” Sandoval, 2013 WL 1767748, at *3; see Millea v. Metro–North
Rail Road Co., 658 F.3d 154, 166 (2d Cir. 2011).
Determining a reasonable hourly rate involves “a case-specific
inquiry into the prevailing market rates for counsel of similar
experience and skill to the fee applicant's counsel [, which] may
. . . include judicial notice of the rates awarded in prior cases
and the court’s own familiarity with the rates prevailing in the
district.”

See Farbotko v. Clinton County, 433 F.3d 204, 209 (2d

Cir. 2005).

The hourly rates must be “in line with those [rates]

prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience, and reputation.”

Reiter

v. MTA New York City Transit Authority, 457 F.3d 224, 232 (2d Cir.
2006) (alteration in original) (internal quotation marks omitted);

15

see also Simmons v. New York City Transit Authority, 575 F.3d 170,
174 (2d Cir. 2009).

The relevant community in this case is the

Southern District of New York.

Arbor Hill, 522 F.3d at 190.

1. Reasonable Hourly Rate
According to the records submitted by the plaintiff, three
attorneys, one paralegal, and one law clerk from the firm of Levy
Ratner worked on the case.

(Amended Affirmation of Susan J.

Cameron in Support of Plaintiff’s Claims for Attorneys’ Fees and
Costs (“Cameron 8/29/13 Aff.”), ¶ 6; Affirmation of Susan J.
Cameron dated Oct. 30, 2013, ¶ 3).

Susan J. Cameron, counsel of

record on the case, billed $185 an hour for her work.

Ms. Cameron

has seven years of experience in the field of labor and employment
law, and recently became a partner at Levy Ratner.
8/29/13 Aff., ¶ 7).

(Cameron

The majority of the work on the case was

performed by Jorge Cisneros, a second year associate at Levy Ratner
who was admitted to the bar in 2012.

(Cameron 8/29/13 Aff., ¶ 8).

Mr. Cisneros billed $185 per hour from April 22, 2013 to July 14,
2013, and $190 per hour for time worked thereafter.

(Transactions

Listing Report (“Transactions”), attached as Exh. 1 to Cameron
8/29/13 Aff. at 1-3).

Suzanne Hepner, a partner and head of the

bankruptcy and collections team, billed less than one hour at the
$185 rate. (Transactions at 3).
Courts in this district have approved hourly rates of $300-400

16

for partners in labor and employment cases.

See Wong v. Hunda

Glass Corp., No. 09 Civ. 4402, 2010 WL 3452417, at *3 (S.D.N.Y.
Sept.

1,

2010)

(reasonable

hourly

rate

for

“employment

law

litigators with approximately ten years’ experience is between $250
per hour and $350 per hour.”); Cesario v. BNI Construction, Inc.,
No. 07 Civ. 8545, 2008 WL 5210209, at *9 (S.D.N.Y. Dec. 15, 2008)
(awarding $250/hour for senior attorney in FLSA case); New York
District Council of Carpenters Pension Fund v. Perimeter Interiors,
Inc., 657 F. Supp. 2d 410, 424 (S.D.N.Y. 2009) (granting summary
judgment in ERISA case and awarding $425 per hour for partners,
$300 per hour for associates, and $150 per hour for paralegals).
The rate for Ms. Cameron’s and Ms. Hepner’s work is therefore well
within a reasonable range.
While Mr. Cisneros was only recently admitted to the bar,
courts in this district have awarded fees up to $200 per hour for
associates with less than three years’ experience.

See Agudelo v.

E & D LLC, No. 12 Civ. 960, 2013 WL 1401887, at *2 (S.D.N.Y. April
4, 2013) (approving $200 per hour as market rate for junior
associates with three years’ experience); Anthony v. Franklin First
Financial, Ltd., No. 09 Civ. 5578, 2012 WL 546668, at *3 (S.D.N.Y.
Feb. 21, 2012) (awarding rate of $175 per hour for first-year
associate in FLSA case); Torres v. City of New York, No. 07 Civ.
3473, 2008 WL 419306, at *2 (S.D.N.Y. Feb. 14, 2008) (finding that

17

“courts have awarded amounts ranging from $125 to $200 per hour for
attorneys with less than three years’ experience”).

Accordingly,

Mr. Cisnero’s rate is reasonable and within the range of rates
awarded in this district.
The hourly rates for work done by the paralegal and the law
clerk are also commensurate with rates awarded in this district.
See Gurung v. Malholtra, 851 F. Supp. 2d 583, 597 (S.D.N.Y. 2012)
(ordering

hourly

rates

of

$150

for

law

clerks

and

$100

for

paralegals); Perimeter Interiors, 657 F. Supp. 2d at 424.
2. Hours Reasonably Expended
A party seeking attorneys’ fees must present “contemporaneous
time records that show for each attorney, the date, the hours
expended, and the nature of the work done.”

Ontel Products Corp.

v. Amico International Corp., No. 07 Civ. 7356, 2008 WL 4200164, at
*5 (S.D.N.Y. Aug. 19, 2008) (internal quotation marks omitted).
SEIU submitted a report, based on contemporaneously recorded time
records, providing this information.
work

included

the

drafting,

(Transactions at 1-5).

preparation,

and

filing

of

The
the

Complaint, the Application for Default Judgment, and the Proposed
Findings of Fact and Law.

(Cameron 8/29/13 Aff., ¶ 9).

Attorneys worked a total of 21 hours on the case, paralegals
another 8.1 hours.

(Cameron 8/29/13 Aff., ¶ 10).

While “[l]arge-

scale WARN Act cases may be complicated and time-consuming,” that

18

is not the case here.

Guippone v. BH S & B Holdings, LLC, No. 09

Civ. 1029, 2011 WL 5148650, at *11 (S.D.N.Y. Oct. 28, 2011)
(considering attorneys’ fees in WARN Act class action settlement).
The defendant defaulted, and issues of liability were not complex.
Courts

in

this

district

often

take

into

account

the

“straightforward nature of the work performed [and] the relative
simplicity of the issues involved” when determining attorneys’
fees.

Palacios v. Z & G Distributors, Inc., No. 11 Civ. 2538, 2013

WL 4007590, at *6 (S.D.N.Y. Aug. 6, 2013); see also Ibarra v. HSCS
Corp., No. 10 Civ. 5109, 2012 WL 3964735, at *4 (S.D.N.Y. 2012).
Here, the full 29.1 hours of time were reasonably expended.
Greathouse v. JHS Security, Inc., No. 11 Civ. 7845, 2012 WL
3871523, at *10 (S.D.N.Y. Sept. 7, 2012), report and recommendation
adopted as modified, 2012 WL 5185591 (S.D.N.Y. Oct. 19, 2012)
(finding 24.2 hours a reasonable number of hours spent on a FLSA
default case).
3. Costs
The plaintiff also claims total costs of $610 for the expenses
associated with filing and serving the Complaint. (Cameron 8/29/13
Aff.,

¶

11).

Fee

awards

include

“‘reasonable

out-of-pocket

expenses incurred by attorneys and ordinarily charged to their
clients.’”

LeBlanc–Sternberg v. Fletcher, 143 F. 3d 748, 763 (2d

Cir. 1998) (quoting United States Football League v. National

19

Football League,

887 F.

2d 408,

416

The costs

(2d Cir. 1989)).

here are reasonable and should be granted.
Conclusion
For the reasons set forth above,

I

recommend that SEIU be

awarded $501,298.69 in back pay due under the federal and NY WARN
Acts,

$4,647.00 in attorneys'

fees,

and $610.00 in costs,

total monetary award of $506,555.69.
636{b) (1)

and Rules 72,

Civil Procedure,
this

date

to

and 6(d)

file

written

to 28 U. S . C.

objections

to

(14)

this

days from

Report

and

Such objection shall be filed with the Clerk of

with extra copies delivered to the chambers of

Honorable John G.

§

of the Federal Rules of

the parties shall have fourteen

Recommendation.
the Court,

6{a),

Pursuant

for a

Koeltl,

the

Room 1030, and to the chambers of the

undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.

Respectfully Submitted,

C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
November 13, 2013

20

Copies mailed to:
Susan J. Cameron, Esq.
Jorge A. Cisneros, Esq.
Levy Ratner, P.C.
80 Eighth Avenue, Floor 8
New York, NY 10011
John Langrod, Ph.D.
Chair, Board of Directors
South Bronx Mental Health Council,
2109 Broadway, # 506
New York, NY 10023

21

Inc.