Sanchez v. Hunts Point Triangle, Inc. et al

Filing 41

MEMORANDUM OPINION AND ORDER: re: 35 THIRD MOTION for Default Judgment as to Defendants filed by Venus Sanchez. For the foregoing reasons, Plaintiff's motion for default judgment is denied, her federal claims are dismissed with prejudice, h er motion for class certification is denied, and the Court declines to exercise supplemental jurisdiction of the state law claims. The Clerk of Court is hereby directed to enter judgment accordingly and close the case. This order resolves Docket Entry No. 35. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/01/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VENUS SANCHEZ on behalf of herself, all
others similarly situated, and the Proposed
New York Rule 23 Class,
Plaintiff,
-v-

No. 15 CV 03787-LTS

HUNT’S POINT TRIANGLE, INC.,
WILLIAM HANGAN, JOHN DOE and
JANE DOE,
Defendants.
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MEMORANDUM OPINION AND ORDER
Plaintiff Venus Sanchez (“Sanchez”) brings this action on behalf of herself and
similarly situated current and former employees (the “Covered Employees”), against Hunt’s
Point Triangle, Inc. (“Hunt’s Point”), William Hangan (“Hangan”), John Doe, and Jane Doe
(collectively “Defendants”), asserting claims for failure to pay minimum and overtime wages
pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), New York Labor
Law §§ 650, 190 et seq. (“NYLL”), and New York Codes, Rules and Regulations (“NYCRR”),
12 NYCRR § 146-1.6, and for requiring kickbacks and failure to pay the required spread of
hours payment under NYLL. Plaintiff also seeks conditional certification of her FLSA claims as
a collective action pursuant to 29 U.S.C. § 216(b) and certification of a class action pursuant to
Federal Rule of Civil Procedure 23. Plaintiff moves for default judgment against Defendants

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pursuant to Federal Rule of Civil Procedure 55(b)(2). (Docket Entry No. 35.) The Court has
jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367.
The Court has reviewed Plaintiff’s unopposed submissions carefully. For the
reasons stated below, the Court denies Plaintiff’s motion for default judgment with respect to
liability on her FLSA claims and dismisses the case with prejudice. Furthermore, the Court
declines to exercise supplemental jurisdiction of the remaining state claims.
BACKGROUND1
On or about January 2005, Plaintiff Venus Sanchez began working as an
entertainer/exotic dancer at Hunt’s Point, located in Bronx, New York. (Compl. ¶¶ 7, 20.)
Defendants William Hangan, John Doe, and Jane Doe are the owners, directors, and/or officers
of Hunt’s Point. (Id. ¶ 13.) Defendants also engage in restaurant operations at Hunt’s Point by
serving food and beverages to their patrons. (Id. ¶ 30.) Sanchez estimates that Hunt’s Point
grossed at least $500,000 per year in revenue, and claims that Defendants operate in interstate
commerce by selling liquor which has traveled across state lines. (Id. ¶¶ 15, 29.)
Sanchez worked at Hunt’s Point from January 2005 until April 2013. (Id. ¶¶ 7,
20, 21.) Plaintiff alleges that she “and all others similarly situated, and members of the proposed
New York Rule 23 Class have not been paid minimum wage by Defendants.” (Id. ¶ 22.)
Sanchez further asserts, “[t]his claim arises from Defendants’ willful violation of the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., for failure to pay a minimum wage and failure to pay for
hours in excess of 40 hours a week to Plaintiff.” (Id. ¶ 54.) Defendants also required Sanchez

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The facts recited herein are drawn from Plaintiff’s Complaint (“Compl.”) in this action. In light of
Defendants’ failure to respond to the Complaint, Plaintiff’s well-pleaded factual allegations are accepted as
true for purposes of this motion practice. See Fed. R. Civ. P. 8(b)(6); Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“[A] party’s default is deemed to constitute a
concession of all well pleaded allegations of liability.”). Plaintiff also proffered affidavits regarding service
and an affirmation in support of the motion that summarized the causes of action in the Complaint.

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and Covered Employees to pay a “facilities use fee” of thirty dollars at the beginning of each
shift and requested, demanded, and received a part of Plaintiff’s wages and gratuities through
fines and penalties for lateness and misconduct. (Id. ¶¶ 1, 23-25, 73.)
Sanchez filed the instant action on May 15, 2015. (See Compl., Docket Entry No.
1.) Sanchez served Hunt’s Point with the Summons and Complaint on June 29, 2015 through
New York’s Secretary of State. (See Docket Entry No. 6.) Service was attempted on Hangan at
the Hunt’s Point address on June 6, 2015 and was returned unexecuted. (See Docket Entry No.
9.) The process server was informed by neighbors that the “Hunt’s Point Triangle” enterprise
was out of business. (See Docket Entry No. 37-1 at ECF page 11.) Plaintiff later mailed the
summons to Hangan at the address for Hunt’s Point. (See Docket Entry No. 24.) Defendants
failed to make any formal appearance in this action or file any responsive pleading.
Plaintiff attempted to file a motion for default judgment on January 14, 2016,
without leave of the Court. (See Docket Entry No. 10.) On May 24, 2016, the Court terminated
the Motion for Default Judgment without prejudice and construed the motion as a notification to
the Court of the Plaintiff’s intention to seek a default judgment. (See Docket Entry No. 14.) On
May 24, 2016, the Court stated that it accepted the initial motion as a statement of intent to seek
judgment by default in favor of Plaintiff, individually, and that the following requirements
applied to any renewed motion practice:
[1] that Plaintiff’s motion must be accompanied by evidence, in admissible form,
of such facts as she would have proffered to meet her burden of proof on her
direct case had a trial been held in this action and a memorandum of law . . . [2]
that such motion for default judgment must be served on the defendants and must
be accompanied by copies of the Clerk’s Certificate and of proof of service of the
summons and complaint and the motion for default judgment as provided by the
undersigned’s Individual Practice Rules . . . [3] that said motion shall be briefed
in accordance with the schedule set forth in Local Civil Rule 6.1 and will be taken
on submission unless otherwise directed by the Court; and . . . [4] Plaintiff must

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serve a copy of this Order on defendants and file proof of such service within
fourteen (14) days from the date hereof.
(Id.)
On October 18, 2016, the Court received Plaintiff’s second motion for default
judgment accompanied by an affirmation and exhibits, none of which addressed the merits of
Plaintiff’s claim. (See Docket Entry No. 22, 23.) The court again denied the motion without
prejudice, directing Plaintiff to comply with the requirements set forth in the May 24, 2016
Order. (See Docket Entry No. 26.) In this later Order, the Court noted that the second motion
for default judgment (Docket Entry No. 22) was not accompanied by any relevant evidence or
memorandum of law as directed by the May 24, 2016 Order. (See Docket Entry No. 26.)
Plaintiff was further directed to re-file any motion for default judgment by January 20, 2017 in
accordance with the requirements set forth in the May 24, 2016 Order, and that failure to do so
would result in dismissal of the case with prejudice. (Id.) Plaintiff filed a memorandum of law
in support of default judgment (Docket Entry No. 27), and after a filing error (see Docket Entry
No. 31) the Court granted an extension of time to re-file the motion. (Docket Entry No. 32.)
The third and current motion for default judgment and associated memorandum of law were filed
along with an attorney’s affirmation in support of the motion and several documents relating to
service as exhibits, on August 21, 2017. (See Docket Entry Nos. 35-37.)2
DISCUSSION
When determining whether to grant a motion for default judgment, courts in this
circuit consider three factors: “1) whether the defendant’s default was willful; 2) whether

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The affirmation in support of the motion included a summary of the Plaintiff’s causes of action and the
exhibits included a clerk’s certificate of default for Hunt’s Point and affidavits of service and due diligence
of service and photocopies of a certified mail receipt from the purported service by mail on Hangan. (See
Docket Entry Nos. 36, 37-1.)

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defendant has a meritorious defense to plaintiff’s claims; and 3) the level of prejudice the nondefaulting party would suffer as a result of the denial of the motion for default judgment.”
Mason Tenders Dist. Council v. Duce Const. Corp., No. 02-CV-9044-LTS-GWG, 2003 WL
1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Guggenheim Capital, LLC v. Birnbaum, 722
F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of a lower court’s grant of default
judgment). Once the court determines that these factors favor the plaintiff, it must decide
whether the plaintiff has pleaded facts supported by evidence sufficient to establish the
defendant’s liability with respect to each cause of action asserted. See Au Bon Pain Corp. v.
Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); see also Gunawan v. Sake Sushi Rest., 897 F. Supp.
2d 76, 83 (E.D.N.Y. 2012) (“[A] defendant’s default does no more than concede the complaint’s
factual allegations.” (citations omitted)). The Court accepts as true all of the factual allegations
of the complaint, except those relating to damages. Au Bon Pain Corp., 653 F.2d at 65.
The FLSA minimum wage and overtime provisions apply to employees who are
“(1) personally engaged in interstate commerce or in the production of goods for interstate
commerce . . . or (2) [were] employed in an enterprise engaged in interstate commerce or in the
production of goods for interstate commerce.” Rodriguez v. Almighty Cleaning, Inc., 784 F.
Supp. 2d 114, 120 (E.D.N.Y. 2011) (alteration in original) (citation omitted); see also 29 U.S.C.
§§ 206(a), 207(a). Under the FLSA, employees are to be paid a minimum wage, 29 U.S.C. §
206, and are entitled to a fifty percent premium over their regular wage for each hour over forty
hours worked in a week, 29 U.S.C. § 207(a)(1).
Under the FLSA, an employee bears the burden of proving that she was not
properly compensated for her work. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,

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687 (1946) (superseded on other grounds). The employee can do so by obtaining and producing
her employer’s records. See id. However, when “the employer’s records are inaccurate or
inadequate” and “the employee cannot offer convincing substitutes,” the employee can meet her
burden of proof if she “produces sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.” Id. “The burden then shifts to the employer to
come forward with evidence of the precise amount of work performed . . . .” Id. If the employer
fails to do so, “the court may then award damages to the employee, even though the result be
only approximate.” Id. at 688; see also Liu v. Jen Chu Fashion Corp., No. 00-CV-4221-RJHAJP, 2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004) (“[I]n the absence of rebuttal by defendants,
plaintiffs’ recollection and estimates of hours worked are presumed to be correct.”). However,
the Second Circuit has held that some specificity is required in the complaint and that a plaintiff
must “do more than repeat the language of the statute.” DeJesus v. HF Mgmt. Servs., LLC, 726
F. 3d 85, 89 (2d Cir. 2013).
Despite the Court order to provide evidence along with the motion for default
judgment, Sanchez relies only on the conclusory allegations and recitals of the elements of the
statutory claims in her Complaint to support her motion. See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Aminov v. EC Commodities Corp., 16-CV-4800-AMD-SMG, 2017 U.S. Dist.
LEXIS 106228, at *4 (E.D.N.Y. July 6, 2017), report and recommendation adopted, 2018 WL
542245 (Jan. 24, 2018) (applying Iqbal to a default motion). Sanchez requests judgment for
failure to pay minimum and overtime wages but has not proffered any recollections, estimates, or
evidence of the hours she worked or the wages she received. There is nothing from which the
Court can draw a “just and reasonable inference” about the amount and extent of her work.

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Therefore, the facts alleged in the Complaint do not plausibly demonstrate a violation of FLSA.
See Anderson, 328 U.S. at 687.
The Court has provided Plaintiff ample opportunity to document adequately her
motion for default judgment. The motion now before the Court is Plaintiff’s third attempt to
comply with the procedural and substantive requirements as mandated by rule and court orders.
(See Docket Entry No. 35.) Despite the Court’s instruction, Plaintiff only proffered evidence
related to service, but failed to proffer facts sufficient to render plausible the conclusory
allegations in the Complaint. (See Docket Entry No. 37-1.) Accordingly, the Court denies with
prejudice Plaintiff’s default judgment motion as to her federal claims.
Having dismissed Plaintiff’s FLSA claims, the Court declines to exercise
supplemental jurisdiction of Plaintiff’s state law claims. 28 U.S.C. § 1367(c); See Lerner v.
Fleet Bank, N.A., 318 F.3d 113, 130 (2d Cir. 2003) (“In most circumstances, a district court
should decline supplemental jurisdiction if all federal claims have been dismissed at the pleading
stage.”). Plaintiff’s request for certification of a class pursuant to Federal Rule of Civil
Procedure 23 is denied.
Conclusion
For the foregoing reasons, Plaintiff’s motion for default judgment is denied, her
federal claims are dismissed with prejudice, her motion for class certification is denied, and the

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Court declines to exercise supplemental jurisdiction of the state law claims. The Clerk of Court
is hereby directed to enter judgment accordingly and close the case.
This order resolves Docket Entry No. 35.
SO ORDERED.
Dated: New York, New York
March 1, 2018
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge

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