Dobbinson et al v. Parham et al

Filing 26

OPINION re: 16 FIRST MOTION for Default Judgment as to Shawn Parham, Allan Parham, Mark King, and Always Ready and Reliable Securities Inc.. filed by Kevin Hodge, Bruce Lee, Preston Mitchell, Khalil Islam, Tyrone Dobbinson, Valer ie Lewis. In sum, between unpaid overtime wages, liquidated damages under the NYLL, prejudgment interest, and attorney's fees, the Plaintiffs are entitled to a default judgment in the amount of $158,087.73.Based on the Defendants' failure to contest the case, the Court grants a default judgment for the Plaintiffs, as set forth above. It is so ordered. (As further set forth within this Opinion.) (Signed by Judge Robert W. Sweet on 9/30/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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TYRONE DOBBINSON, KEVIN HODGE, KHALIL
ISLAM, BRUCE LEE, VALERIE LEWIS, and
PRESTON MITCHELL,
Plaintiffs,
14 Civ. 8620

(RWS)

- against OPINION
ALLAN PARHAM, SHAWN PARHAM, MARK KING,
and ALWAYS READY & RELIABLE SECURITY
INC.,
Defendants.

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USDCSDNY
Attorneys for the Plaintiffs
SLATER SLATER SCHULMAN LLP
445 Broad Hollow Road
Melville, NY 11747
By:
Adam Paul Slater, Esq.
Anthony R. Portesy, Esq.

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Sweet, D.J.,

Plaintiffs Tyrone Dobbinson, Kevin Hodge, Khalil Islam,
Bruce Lee, Valerie Lewis, and Preston Mitchell (collectively,
the "Plaintiffs") have moved for a default judgment against
defendants Allan Parham, Shawn Parham, Mark King, and Always
Ready & Reliable Security Inc.

("Always Ready," collectively

with the individual defendants, the "Defendants").

For the

reasons set forth below, the motion is granted.

Prior Proceedings

Plaintiffs brought this case on October 29, 2014, alleging
that the defendants, Always Ready and three of its owners, had
filed to pay overtime and provide appropriate wage
documentation, in violation of the Fair Labor Standards Act
("FLSA") and New York Labor Law ("NYLL").
Complaint, Dkt. No. 1.)

(See generally,

On March 16, 2015, the Court dismissed

the case for failure to serve the defendants within 120 days
(See Dkt. No. 3), but Plaintiffs responded with a letter to the
court four days later, attaching affidavits of service stating
that the individual defendants had been served by leaving a
summons and complaint with a "John Doe Business Associate," a
person of suitable age and discretion, and that the corporate

2

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defendant had been served via the Secretary of State.
4.)

The Court then reopened the case.

( Id . )

(Dkt. No.

On May 11 , 2 0 15 ,

Defendant Allan Parham faxed a letter to the Court on Always
Ready letterhead, requesting an extension of time to obtain
counsel and respond to the lawsuit.

(See Dkt. No. 6.)

The

Court granted the request on May 13, 2015, giving Parham an
additional 30 days.
On August 18, 2015, Plaintiffs filed a Request to Enter
Default (Dkt. No. 13), and the Clerk issued a Certificate of
Default the following day.

(Dkt. No. 15.)

Plaintiffs filed the

instant motion for a default judgment on August 20, 2015.
No. 16.)

(Dkt.

The motion was heard on September 23, 2015, without

opposition.

(See Dkt. No. 25.)

Outside of Allan Parham's May

11 letter to the Court, Defendants have not taken part in the
case in any way.

Applicable Standard

When a defendant defaults, the Court accepts all wellpleaded allegations against him as true for the purposes of
determining liability.
n.6 (2d Cir. 2009).

Finkel v. Romanowicz, 577 F.3d 79, 83

A default does not admit any conclusions of

law, however, and the court must determine whether the facts in
the complaint are sufficient to sustain a judgment.
3

In re

Indus. Diamonds Antitrust Litig., 119 F. Supp. 2d 418, 420
(S.D.N.Y. 2000).

A default also does not establish an amount of

damages, which must be determined via a separate proceeding.
Finkel, 577 F.3d at 83 n.6.

Where a plaintiff submits

documentary evidence of damages and a defendant does not submit
a response, an evidentiary hearing is unnecessary and damages
can be established based on the papers alone.

See id.

The Complaint Is Sufficient to Support a Default Judgment

Even after a default, "it remains for the court to consider
whether the unchallenged facts constitute a legitimate cause of
action, since a party in default does not admit mere conclusions
of law."

Industrial Diamonds, 119 F. Supp. 2d at 420.

The

Plaintiffs' Complaint alleges four causes of action: 1) failure
to pay overtime wages as required by the FLSA, 2)

failure to pay

overtime wages as required by the NYLL, 3) failure to pay extra
compensation for hours worked over ten per day, as required by
the NYLL, and 4)
by the NYLL.

failure to provide wage statements, as required

(Complaint, Dkt. No. 1

~~

83-112.)

The facts

alleged in the Complaint are sufficient to support a judgment
for each of the four causes of action.
On the overtime claims, both federal and state law require
that an employee be paid at a rate not less than one-and-a-half

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times the regular rate for any time worked beyond the first 40
hours in a week.

Yuquilema v. Manhattan's Hero Corp., No. 13

Civ. 461, 2014 WL 4207106, at *3 (S.D.N.Y. Aug. 26, 2014)
(citing 29 U.S.C. § 207(a) (1)

for the standard under the FLSA

and 12 NYCRR 142-2.2 to establish that state law follows the
FLSA standard) .

The Plaintiffs have alleged that they worked

more than 40 hours per week throughout the time period in
question

(Complaint~

49), that Defendants did not pay them the

required extra compensation for those overtime hours
~

(Complaint

50-51), that Defendants had supervisory responsibilities and

powers sufficient to qualify as employers under the FLSA's broad
"economic reality test" (Complaint

~~

29-32; see Carter v.

Dutchess Cmty Coll., 735 F. 2d 8, 12 (2d Cir. 1984) ), and that
the Plaintiffs are not exempt from the FLSA and NYLL overtime
pay provisions because they were paid on an hourly basis and did
not have the hiring and firing powers that would qualify them as
exempt supervisors.

(Complaint

~~

27-28, 45-46; see Torres v.

Gristede's Operating Corp., No. 04 Civ. 3316, 2006 WL 2819730,
at *6 (S.D.N.Y. Sept. 29, 2006)).

Therefore the facts,

established as true by virtue of the Defendants' default, are
sufficient to establish liability for failure to pay overtime
under the FLSA and NYLL.
Plaintiffs' "spread of hours" claim is based on a state law
provision that requires employers to provide an extra hour of
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pay at minimum wage for every hour an employee works above ten
12 NYCRR 142-2.4; see Shahriar v. Smith & Wollensky

per day.

Rest. Grp., Inc., 659 F.3d 234, 241-42 (2d Cir. 2011).

Since

Plaintiffs allege that they regularly worked more than ten hours
per workday, but did not receive extra compensation for doing so
(Complaint~~

52-55), their allegations, which are established

as true because of the default, are sufficient to establish
liability on this cause of action.
Lastly, Plaintiffs' Complaint includes a cause of action
under the New York Wage Theft Prevention Act, which requires
that employers give each employee a statement with each paycheck
containing the dates of work covered, the rate of pay,
deductions and allowances, net wages, and other basic
information regarding employment and payment.
195(3).

N.Y. Labor Law§

Since Plaintiffs allege that they never received the

required statements

57, 111), those allegations,

(Complaint~

established as true because of the default, are sufficient for
liability.
In sum, the Plaintiffs' Complaint contains sufficient
factual information to support the four causes of action
asserted.

Since the facts in the complaint are accepted as true

after the Defendants' default, Finkel, 577 F.3d at 83 n.6, the
Defendants' liability is established.

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Default Judgment is Awarded for $158,087.73

The amount of damages may be determined based on affidavits
submitted by the Plaintiffs, without an in-person court hearing,
as long as the Court determines that there is a basis for the
damages asserted.

Zhen Ming Chen v. New Fresco Tortillas Taco

LLC, No. 15 Civ. 2158, 2015 WL 5521782, at *2 (citing
Transatlantic Marine Claims Agency,
109 F. 3d 105, 111 (2d Cir. 1997)).

Inc. v. Ace Shipping Corp.,
In a wage-and-hour case

such as this one, where the Defendants have not submitted any
sort of rebuttal, the plaintiffs' recollection and estimate of
hours worked is presumed to be correct.

Id.

Mt. Clemens Pottery Co., 328 U.S. 680, 687-88

(citing Anderson v.
(1946) and

Grochowski v. Phoenix Constr., 318 F.3d 80, 87-88
2003)).

(2d Cir.

The Court has reviewed the affirmations submitted by

the Plaintiffs (Dkt. Nos. 19-24) and while they "leave[]
something to be desired in terms of the level of detail
provided," id., the Court nonetheless accepts the estimates
contained within them as true.
Also leaving something to be desired are the spreadsheets
provided by Plaintiffs' counsel estimating the damages to which
each plaintiff is entitled.

(Dkt. No. 17, Ex. C.)

Although the

spreadsheets show the arithmetic used to calculate the amount of
overtime pay owed, the amount of liquidated damages claimed, and
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the amount of interest sought, neither the Plaintiff's brief nor
the Affidavit of Anthony Portesy, to which the spreadsheets are
attached, explain which legal claims the asserted damages are
based on.
From what the Court can discern, the amount of overtime pay
owed per hour was calculated by taking each plaintiff's hourly
rate of pay and multiplying it by 50%

(the 150% rate required by

the FLSA and NYLL, reduced because the plaintiffs received their
regular hourly pay).

Each of the plaintiffs specified a range

of hours that he or she would work during an average week
Deel. of Tyrone Dobbinson, Dkt. No. 19

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(~,

8); and the range

appears to have been averaged for the purposes of calculating
the amount of overtime pay owed.

The amount of underpayment per

hour of overtime was multiplied by the number of hours over 40
per week, and then by the total number of weeks each plaintiff
worked for the Defendants.

The Court approves the methodology

and, after correcting a multiplication error in Plaintiffs'
spreadsheet,

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determines that plaintiff Bruce Lee is entitled to

$9,926.46, plaintiff Kevin Hodge is entitled to $14,062.50,
plaintiff Khalil Islam is entitled to $14,482.13, plaintiff
Preston Mitchell is entitled to $15,120.00, plaintiff Tyrone

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Plaintiff Bruce Lee states in his Declaration that he worked between 41 and
63 hours per week, but rather than averaging that range as with each other
plaintiff, the spreadsheet simply sets Mr. Lee's hours per week at 62.5.
(See Portesy Aff., Dkt. No. 16 Ex. Cat 2; Deel. of Bruce Lee, Dkt. No. 23,
at~ 8.)

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Dobbinson is entitled to 16,100.63, and plaintiff Valerie Lewis
is entitled to $5,610.24.

See Baltierra v. Advantage Pest

Control Co., No. 14 Civ. 5917, 2015 WL 5474093, at *5 (S.D.N.Y.
Sept. 18, 2015).
Both the FLSA and NYLL also allow the Plaintiffs to recover
liquidated damages in addition to back overtime wages; the FLSA
does so to compensate for the delay in plaintiffs receiving the
money they earned via their work, while the NYLL does so to
punish employers who willfully withhold wages.
Chen, 2015 WL 5521782, at *6-7.

See Zhen Ming

There is a split among courts

in this Circuit concerning whether these differing purposes
allow plaintiffs suing under both the FLSA and NYLL to recover
separate liquidated damages for each claim, see id. at *7, but
the Plaintiffs' spreadsheet indicates they seek only a single
set of liquidated damages.

The spreadsheet also makes clear

that the liquidated damages sought are based on the NYLL, since
the liquidated damages amount to 100% of unpaid wages after
April 12, 2011, the week when the NYLL's liquidated damages
percentage was increased, see id. at *8 n.12, but only 25% for
unpaid wages prior to that week. 2

The liquidated damages figure

is appropriate because Defendants have not demonstrated "a good

2

By seeking liquidated damages under the NYLL, the Plaintiffs avoid running
up against the FLSA's three-year limitations period for willful violations.
See 29 U.S.C. § 255(a)) and its prohibition on recovering both liquidated
damages and interest.
See Yu G. Ke v. Saigon Grill, Inc. 595 F. Supp. 2d
240, 261-62.

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faith basis for believing that [the] underpayment of wages was
in compliance with the law."

N.Y. Labor Law§ 198(1-a).

Liquidated damages are therefore awarded in the amount of
$5,366.94 for plaintiff Bruce Lee, $10,033.13 for plaintiff
Kevin Hodge, $10,189.13 for plaintiff Khalil Islam, $7,560 for
plaintiff Preston Mitchell, $11,600.63 for plaintiff Tyrone
Dobbinson, and $5,468.12 for plaintiff Valerie Lewis.
Plaintiffs also seek prejudgment interest, which is
available under the NYLL.
595 F. Supp. 2d 240, 262

See Yu G. Kev. Saigon Grill, Inc.,
(S.D.N.Y. 2008).

They calculate the

appropriate amounts by taking the midpoint of each individual
plaintiff's period of employment and applying the 9% statutory
rate of interest from N.Y. C.P.L.R. § 5004 from that point, a
practice that other courts in this District have found
appropriate.

E.g., Kim v. Kum Gang,

Inc., No. 12 Civ. 6344,

2015 WL 2222438, at *49 (S.D.N.Y. Mar. 19, 2015).

Prejudgment

interest is therefore awarded in the amount of $3,041.96 for
plaintiff Bruce Lee, $4,309.45 for plaintiff Kevin Hodge,
$4,164.34 for plaintiff Khalil Islam, $4,633.52 for plaintiff
Preston Mitchell, $4,934.04 for plaintiff Tyrone Dobbinson, and
$1,129.50 for plaintiff Valerie Lewis.
Since the Plaintiffs do not include any damage calculations
based on their spread-of-hours claim or on Defendants' failure
to provide wage statements, they have waived any damages on
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those claims.
In support of an application for attorney's fees and costs,
which are available under the FLSA and NYLL, Zhen Ming Chen,
2015 WL 5521782, at *11, the Plaintiffs have also submitted a
spreadsheet breaking out the work done and expenses incurred by
their counsel in drafting the Complaint, serving the Defendants,
calculating damages, and preparing the instant motion and its
supporting papers.

Having reviewed the submission, the amounts

alleged appear reasonable, and the Plaintiffs are therefore
granted $10,355 to cover attorney's fees and costs of
litigation.
In sum, between unpaid overtime wages, liquidated damages
under the NYLL, prejudgment interest, and attorney's fees, the
Plaintiffs are entitled to a default judgment in the amount of
$158,087.73.

Conclusion

Based on the Defendants' failure to contest the case, the
Court grants a default judgment for the Plaintiffs, as set forth
above.

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It is so ordered.

Jo,

New York, NY
September

201s

U.S.D.J.

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