Guaman v. J & C Top Fashion, Inc. et al

Filing 29

MEMORANDUM DECISION AND ORDER adopting 28 Report and Recommendation. This Court adopts the Report in its entirety. Judgment therefore is entered against Defendants for a total of $67,271.65 as the sum of the following amounts: 1. $61,384.17 to Plaintiff Guaman; and 2. Attorney's fees in the amount of $5,887.48 plus $125.23 in litigation costs expended by Plaintiff's counsel. The Clerk of the Court is directed to enter judgment accordingly and close this case. (As further set forth in this Order.) (Signed by Judge George B. Daniels on 1/11/2017) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROSA GUAMAN,
Plaintiff,
-againstJ&C TOP FASHION, INC. and TOMMY WONG,
Defendants.

MEMORANDUM DECISION
AND ORDER
14 Civ. 8143 (GBD) (GWG)

------------------------------------x
GEORGE B. DANIELS, United States District Judge:
Plaintiff Rosa Guaman ("Plaintiff') brought this action against defendants J&C Top
Fashion, Inc. and Tommy Wong (collectively "Defendants").

(See Compl., ECF No. 1.)

Plaintiff alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq.,
and the New York Labor Law ("NYLL"), N.Y. Lab. Law§ 190, et seq., provisions for minimum
and overtime wages. (Compl., ECF No. 1.).
This Court entered default judgment for Plaintiff against Defendants.

(June 3, 2015

Order, ECF No. 19.) This Court referred the case to Magistrate Judge Gabriel W. Gorenstein for
an inquest on damages, (id.), which Magistrate Judge Gorenstein conducted based on Plaintiffs'
submissions. 1 (ECF Nos. 22, 23.)
Before

this

Court

is

Magistrate

Judge

Gorenstein's

Amended

Report

and

Recommendation ("Report," ECF No. 28), recommending that Plaintiff be awarded judgment
against Defendants, jointly and severally, in the amount of $67,271.65. (Report at 22.)

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The relevant procedural and factual background is set forth in greater detail in the Report and is

incorporated herein.

I. LEGAL ST AND ARD
This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When no party files objections to a Report, the Court may
adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v.
Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); Wilds v. United Parcel Service, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y.
2003) ("'To accept the report and recommendation of a magistrate, 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.") (internal citations and quotation marks omitted)).
Magistrate Judge Gorenstein advised the parties that failure to file timely objections to
the Report would constitute a waiver of those objections on appeal. (Report at 22-23); see also
28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b). As of the date of this Order, no objection to the
Report has been filed.
This Court is satisfied that the Report contains no clear error of law and adopts the Report
in full.

II. PLAINTIFF'S FLSA AND NYLL CLAIMS
When a defendant defaults, the district court accepts as true the well-pleaded allegations
in the Complaint on issues other than damages. See Greyhound Exhibitgroup, Inc. v. E.L. UL.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (internal citation omitted). A plaintiff seeking to
recover damages against a defaulting defendant must prove her damages by submitting
admissible evidence. See U.S. Commodity Futures Trading Comm 'n v. 4X Sols., Inc., 13-CV2287, 2015 WL 9943241, at *2 (S.D.N.Y. Dec. 28, 2015) (citing Smith ex rel. Smith v. Islamic
Emirate ofAfghanistan, 262 F. Supp. 2d 217, 224 (S.D.N.Y. 2003).

2

A. Defendants Were Plaintiff's Employers under the FLSA and NYLL

The Report properly found that under the FLSA, (Report at 4-5 (citing Herman v. RSR
Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (internal citations omitted)), and the NYLL
(id. at 5 (citing, inter alia, Garcia v. JonJon Deli Grocery Corp., 2015 WL 4940107, at *3-4

(S.D.N.Y. Aug. 11, 2015)), Defendants J&C Top Fashion and Wong, J&C's president and/or
owner, held sufficient control over Plaintiff to be considered her employers during the time
period in question. (Id. at 6.)
Magistrate Judge Gorenstein recommended that Plaintiff, who worked as sales assistant
and shopkeeper's assistant from February 2007 to September 2014, often for more than forty
hours each week and more than ten hours each day, (id. at 3), be awarded $34,957.17 for actual
willful violations of the overtime wage and paystub provisions required by the NYLL and FLSA
plus $37,457.17 in liquidated damages, for the 309-week period within the relevant statute of
limitations (October 9, 2008 to October 9, 2011 under NYLL and October 10, 2011 to September
13, 2014 under the FLSA). (See id. at 4, 6, 9, 12.)
Given Plaintiffs successful NYLL and FLSA claims, the Report properly recommended
an award of reasonable attorney's fees (33.71 hours) and certain costs. (Report at 14.)
The total amount of Plaintiff's award is calculated as follows:
Award for overtime wage violations (at a rate of $8.38/hour)
Statutory damages for failure to provide pay stubs
Liquidated damages (unpaid overtime+ statutory damages)
Attorney's fees and costs
Total award for Plaintiff

$34,957.17
$2,500.00
$23,927.00
$5,887.48
$67,271.65

As Plaintiff did not provide any clear evidence that she was paid only the applicable
minimum wage during this period, the Report properly found she is not entitled to an award for
"spread of hours" pay. (See Report, at 11.)

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IX. CONCLUSION
This Court adopts the Report in its entirety.

Judgment therefore is entered against

Defendants for a total of$67,271.65 as the sum of the following amounts:
1. $61,3 84.1 7 to Plaintiff Guaman; and,
2. Attorney's fees in the amount of $5,887.48 plus $125.23 in litigation costs expended
by Plaintiffs counsel.
The Clerk of the Court is directed to enter judgment accordingly and close this case.

Dated: New York, New York
January 10, 2017 f

'

~

SO ORDERED.

JAN 1 1 2017

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