Rosales Medina et al v. Taco Mix LLC et al

Filing 42

MEMORANDUM OPINION & ORDER: Accordingly, Plaintiff is awarded a total of $98,603, consisting of: (1) $38,784 in overtime compensation and $38,784 in liquidated damages; (2) $2,700 in spread-of-hour compensation and $2,700 in liquidated damages; (3) $5,000 in statutory damages for failure to provide wage notices; (4) $5,000 in statutory damages for failure to provide wage statements; (5) $5,035 in attorney's fees; and (6) $600 in costs. 3 The Clerk of Court is respectfully directed to close this case. (Signed by Judge Ronnie Abrams on 9/16/2019) (rj) Transmission to Orders and Judgments Clerk for processing.

Case 1:17-cv-05637-RA-KNF Document 42 Filed 09/16/19 Page 1 of 3
USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:
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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

°1 I'"" I

DONATO ROSALES MEDINA, individually
and on behalf of others similarly situated,
Plaintiff,
No. l 7-CV-5637 (RA)
V.

MEMORANDUM OPINION & ORDER
TACO MIX LLC, dlbla TACO MIX, JORGE
SANCHEZ a.k.a. LIDOINE SANCHEZ,
ALEJO SANCHEZ and JAVIER FLORES
Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Donato Rosales Medina filed this action against Taco Mix LLC, Jorge Sanchez,
Alejo Sanchez, and Javier Flores, alleging that Defendants violated, inter alia, the minimum wage
and overtime provisions of the Fair Labor Standards Act ("FLSA") and the New York Labor Law
("NYLL"). Defendants failed to answer or otherwise respond to the Complaint, and the Court
granted Plaintiff's motion for default judgment and referred the case to Magistrate Judge Fox for
an inquest into damages. Judge Fox issued a Report and Recommendation (the "Report"), to which
no objections were made. After the filing of the Report, Plaintiff, at the Court's request, filed a
supplemental affidavit clarifying two aspects of the record.
A district 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)(l). Parties may object to a
magistrate judge's recommended findings"[ w]ithin 14 days after being served with a copy of the
recommended disposition." Fed. R. Civ. P. 72(b)(2). "When the parties make no objections to the
Report, the Court may adopt the Report if 'there is no clear error on the face of the record."' Smith

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Case 1:17-cv-05637-RA-KNF Document 42 Filed 09/16/19 Page 2 of 3

v. Corizon Health Servs., No. 14-CV-8839 (GBD) (SN), 2015 WL 6123563, at *l (S.D.N.Y. Oct.
16, 2015) (quoting Adee Motor Cars, LLCv. Amato, 388 F. Supp. 2d 250,253 (S.D.N.Y. 2005)).
Having reviewed the Report for clear error, the Court hereby adopts it in part and modifies
it in part. The Court adopts the Report's summary of Plaintiff's submissions, its recitation of the
legal standards, and its application of the legal standards as to Defendants' notice violations,
attorney's fees, and costs. As to the Report's calculation of damages for unpaid overtime and
spread-of-hours compensation, the Court makes two modifications. First, the Court modifies that
portion of the Report which adopts Plaintiff's calculation of unpaid overtime compensation despite
noting that "[n]o evidence exists in the plaintiff's inquest submissions that the 'four or five weeks
when the plaintiff was paid $740' per week occurred, as the plaintiff claims in his calculation of
damages[.]" Report at 8. Plaintiff clarified in his supplemental affidavit, filed after the Report
was issued, that he was paid a fixed weekly rate of $700, "except for three weeks when I was paid
$750 ... without any explanation of why I received the additional pay. Those weeks were not
weeks when I worked any more hours than my usual hours." Supp. Aff. ,r 12. The Court hereby
revises the Report's calculation of unpaid overtime compensation to $38,784, to reflect the
clarification in Plaintiff's supplemental affidavit. 1
Second, the Court modifies that portion of the Report which adopts Plaintiff's spread-ofhours calculation despite noting that Plaintiff, without identifying the size of his employer, relied
on the minimum hourly wage rate for large employers of eleven or more employees. Report at 9.
Plaintiff's supplemental affidavit states that "[t]here were approximately seven employees in total

1
Although Plaintiffs supplemental affidavit states that he was paid $750 for these three weeks, all other
submissions-including the Complaint, the declaration of Joshua S. Androphy, and Plaintiffs prior affidavit-state
that the payment during this period was $740. The Court has used the $740 figure reflected in Plaintiff's prior
submissions, and has calculated the unpaid overtime compensation as follows: for the period from 7/19/2016
12/30/2016: (22 weeks) x ($840 underpayment per week)= $18,480; for the period from 12/31/2016 2/5/2017: (3
weeks) x ($888 underpayment per week)+ (2 weeks) ($840 underpayment per week)= $4,344; for the period from
2/6/2017 6/23/2017: (19 weeks) ($840 underpayment per week) $15,960, for a total of$38,784.

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Case 1:17-cv-05637-RA-KNF Document 42 Filed 09/16/19 Page 3 of 3

at the restaurant." Supp. Aff., 7. Plaintiffs employer thus does not qualify as a large employer
under the relevant law. See 12 N.Y.C.R.R. § 146-1.2 (minimum wage for the relevant period was
$11 per hour for "large employers of eleven or more employees," but $10.50 per hour for "small
employers of ten or fewer employees."). In light of this supplemental submission, the Court
modifies the Report's spread-of-hours calculation to reflect that the relevant minimum wage rate
for the period from December 31, 2016

June 23, 2017 was $10.50 per hour. The revised spread-

of-hours compensation is $2,700. 2
Accordingly, Plaintiff is awarded a total of$98,603, consisting of: (1) $38,784 in overtime
compensation and $38,784 in liquidated damages; (2) $2,700 in spread-of-hour compensation and
$2,700 in liquidated damages; (3) $5,000 in statutory damages for failure to provide wage notices;
(4) $5,000 in statutory damages for failure to provide wage statements; (5) $5,035 in attorney's
fees; and (6) $600 in costs. 3 The Clerk of Court is respectfully directed to close this case.
SO ORDERED.
Dated:

September 16, 2019
New York, New York
R ~
United States District Judge

The Court calculates the spread-of-hours compensation as follows: for the period from 7/19/2016 ~ 12/30/2016:
(22 weeks) x (6 spread-of-hour days per week) x ($9 minimum wage)= $1,188; for the period from 12/31/2016
2/5/2017: (5 weeks) x (6 spread-of-hour days per week) x ($10.50 minimum wage) $315; for the period from
2/6/2017 6/23/2017: (19 weeks) x (6 spread-of-hour days per week) x ($10.50 minimum wage)= $1,197, for a
total of $2,700.
3
For the reasons explained in Mendoza v. CGY & JCorp., 15-CV-9181 (RA), 2017 WL 4685100, at *2 (S.D.N.Y.
Oct. 17, 2017), the Court would not have awarded Plaintiffs attorneys the hourly rates of $400 and $450 per hour.
Because the Court cannot say that the Report's award of attorney's fees was clear error, however, it nevertheless
adopts the award recommended in the Report.
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