Cazares et al v. 2898 Bagel & Bakery Corp. et al
ORDER TO SUPPLEMENT DAMAGES SUBMISSIONS: Plaintiffs are directed to supplement their damages submissions, consistent with this Order, no later than June 25, 2021. Plaintiffs are further directed to serve a copy of their supplemental submissions, tog ether with a copy of this Order, on Defendants, by a means reasonably calculated to reach them, and to file proof of such service on the Docket. If Defendants wish to respond to Plaintiffs' supplemental submission, then Defendants shall submit t heir responses no later than July 2, 2021. Defendant 2898 Bagel, however, may not, as a corporate entity, appear in this Court without an attorney. For this reason, any response to Plaintiffs' supplemental submission that 2898 Bagel wishes to f ile, including any request for a hearing with respect to that submission, must be made through counsel, in order for that response to be considered by the Court. If the individual defendant, Sela, wishes to respond to Plaintiffs' supplemental submission pro se (in other words, without counsel), then he may file his response by mailing it to this Court's Pro Se Office, at the following address: Pro Se Intake Unit, U.S. Courthouse, 500 Pearl Street, New York, NY 10007. Any submission s by Defendants should include the case number for this action (18cv5953) at the top of the submissions. IF DEFENDANTS FAIL TO RESPOND TO PLAINTIFFS' SUPPLEMENTAL SUBMISSION BY JULY 2, 2021, THEN THIS COURT WILL PROCEED TO ISSUE A REPORT AND RE COMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFFS' WRITTEN SUBMISSIONS ALONE. FURTHER, THIS COURT WILL NOT HOLD A HEARING ON DAMAGES, UNLESS ANY DEFENDANT REQUESTS A HEARING, IN WRITING, BY JULY 2, 2021. See Action S.A. v. Marc Rich & C o., 951 F.2d 504, 508 (2d Cir. 1991) (Fed. R. Civ. P. 55(b)(2) "allows but does not require...a hearing"); Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989) ("[I]t [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment."). (Signed by Magistrate Judge Debra C. Freeman on 6/7/2021) Copy to:Plaintiffs' Counsel (via ECF). (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ASCENCION CAZARES, BENJAMIN F.
DELACRUZ, FANNY JISSELLE LIZARDO
FABRE, GABINO ROMANO HERNANDEZ,
HERMENEJILDO ANGEL PRUDENTE, IDOR
JEAN LUCKNER, JOSE CEDANO, JOSE G.
REYES, LUIS ALBERTO SALAS UMANA,
WENDY PATRICIA DAMAS, POCO J.
QUEDRAOGO, AND SUSANA E. ROBLES
MARTINEZ, individually and on behalf of others
18cv5953 (AJN) (DF)
ORDER TO SUPPLEMENT
-against2898 BAGEL & BAKERY CORP. (d/b/a
NUSSBAUM & WU) and SHLOMO SELA
DEBRA FREEMAN, United States Magistrate Judge:
This wage-and-hour case, brought under the Fair Labor Standards Act (the “FLSA”),
29 U.S.C. §§ 201, et seq., and the New York Labor Law (the “NYLL”), §§ 190, et. seq., and 650,
et seq., has been referred to this Court for an inquest, to determine the amount of damages and
attorneys’ fees to which the 12 named plaintiffs:
Ascencion Cazares (“Cazares”),
Benjamin F. Delacruz (“Delacruz”),
Fanny Jisselle Lizardo Fabre (“Lizardo”),
Gabino Romano Hernandez (“Romano”),
Hermenejildo Angel Prudente (“Angel”),
Idor Jean Luckner (“Luckner”),
Jose Cedano (“Cedano”),
Jose G. Reyes (“Reyes”),
Luis Alberto Salas Umana (“Salas”),
Wendy Patricia Damas (“Patricia”),
Poco J. Quedraogo (“Quedraogo”), and
Susana E. Robles Martinez (“Robles”)
(collectively, “Plaintiffs”) are entitled, upon the default of defendants 2898 Bagel & Bakery
Corp., d/b/a Nussbaum & Wu (“2898 Bagel”) and Shlomo Sela (“Sela”) (collectively,
“Defendants”). 1 In the course of its review of Plaintiffs’ submissions, however, this Court has
come to realize that only six of the Plaintiffs – specifically, Cazares, Delacruz, Romano, Angel,
Cedano, and Robles – have submitted evidence, in the form of declarations made under penalty
of perjury, to support the amount of damages claimed. (See Declaration of Michael Faillace,
Esq. in Support of Plaintiffs’ Motion for Default Judgment, dated Mar. 4, 2019 (“Faillace Decl.”)
(Dk. 46), Exs. G-L.) The other six plaintiffs apparently seek to rely solely on the allegations of
the Amended Complaint, in order to establish their damages. This, they may not do.
Although a “‘default judgment entered on well-pleaded allegations in a complaint
establishes a defendant’s liability,’” it does not reach the issue of damages. Bambu Sales, Inc. v.
Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995) (quoting Trans World Airlines, Inc. v.
Hughes, 449 F.2d 51, 69 (2d Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973)). In
conducting a damages inquest, the Court accepts as true all of the factual allegations of the
complaint, except those relating to damages. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65
(2d Cir. 1981). As to damages, a plaintiff must substantiate his or her claims with evidence to
prove the extent of damages. See Trehan v. Von Tarkanyi, 63 B.R. 1001, 1008 n.12 (S.D.N.Y.
1986) (plaintiff must introduce evidence to prove damages suffered and the court will then
determine whether the relief flows from the facts (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d
Cir. 1974))). While the plaintiff is entitled to all reasonable inferences in its favor based on the
Plaintiffs named an additional defendant, Natalie Gil (“Gil’) in their Amended
Complaint (see First Amended Complaint, dated July 25, 2018 (“Am. Compl.”) (Dkt. 11)), but
Gil was apparently never served with process, and, at Plaintiffs’ request, their claims against her
were dismissed without prejudice (see Order, dated Feb. 19, 2019 (Mem. Endors.) (Dkt. 38)).
evidence submitted, see U.S. ex rel. Nat’l Dev. & Constr. Corp. v. U.S. Envtl. Universal Servs.,
Inc., No. 11cv730 (CS), 2014 WL 4652712, at *3 (S.D.N.Y. Sept. 2, 2014) (adopting report and
recommendation), the burden is on the plaintiff to “introduce sufficient evidence to establish the
amount of damages with reasonable certainty,” RGI Brands LLC v. Cognac Brisset-Aurige,
S.A.R.L., No. 12cv1369 (LGS) (AJP), 2013 WL 1668206, at *6 (S.D.N.Y. Apr. 18, 2013)
(citations omitted), report and recommendation adopted, 2013 WL 4505255 (Aug. 23, 2013).
This is far from the first time that Plaintiffs’ counsel – the law firm of Michael Faillace &
Associates, PC – has failed to submit evidence in support of a claim for damages, in a wage-andhour case. In fact, the firm’s repeated failures in this regard were pointed out a few years ago by
the Honorable Kevin Nathaniel Fox, U.S.M.J. See Hernandez Gomez v. 4 Runners, Inc.,
No. 14cv08998 (JPO) (KNF), 2017 WL 9802834, at *8 (S.D.N.Y. Dec. 6, 2017), report and
recommendation adopted, 2018 WL 1940433 (Apr. 24, 2018), affirmed in relevant part, 769
Fed. App’x 1 (2d Cir. Apr. 16, 2019) (summary order). Hernandez Gomez was an FLSA action
involving damages claims made, upon the defendants’ default, by two plaintiffs. One plaintiff
submitted no affidavit, declaration, or exhibits supporting his alleged hours worked and
compensation paid, while the other did submit a declaration, which Judge Fox rejected as not
credible; in light of these issues, Judge Fox recommended that no damages be awarded to either
plaintiff. See generally id. After the Honorable J. Paul Oetken, U.S.D.J., adopted Judge Fox’s
Report and Recommendation in its entirety, the plaintiffs appealed.
On appeal, the Second Circuit reversed the District Court’s ruling as to the plaintiff who
had submitted a declaration, but affirmed with respect to the plaintiff who had submitted no
evidence to support his damages claims. Hernandez Gomez, 769 Fed. App’x at 3-4. As to the
latter plaintiff, the court noted that Judge Fox had directed him to submit proof of his damages,
but that he “did not do so, instead citing only to the allegations in the complaint, which are not
evidence and are not accepted as true as they relate to damages.” Id. at 3 (citing Au Bon Pain,
653 F.2d at 65). The Second Circuit went on to state: “[T]he district court therefore had no
basis from which to reasonably infer [the latter plaintiff’s] damages and reasonably awarded him
Before this Court recommends, in this case, that six of the Plaintiffs – Luckner, Reyes,
Salas, Patricia, and Quedraogo – be awarded no damages because of their failure to submit
evidence in support, this Court will afford these plaintiffs the opportunity to supplement their
submissions. These plaintiffs are cautioned that each of their damages claims must be supported
by proof in admissible form, and that their failure to do so may result in their receiving no
damages award in this action, despite the fact that a default judgment has been issued in their
On a related matter, this Court notes that both the Amended Complaint and the
Declaration submitted by plaintiff Cedano raise a question regarding whether Cedano is entitled
to recover the damages he seeks under the FLSA and/or the NYLL. In both places, Cedano
describes his former job position as having been that of a “manager,” and then merely recites
boilerplate language that his “duties for Defendants required neither discretion nor independent
judgment.” (Am. Compl. ¶¶ 173, 175; Faillace Decl., Ex. K (Declaration of Jose Ced[a]no 2 in
Support of Plaintiff’s Motion for Default Judgment, date Jan.18, 2019 (Dkt. 46-11)) ¶¶ 7-8.) The
question of whether a “manager” should be considered exempt from statutory minimum-wage
Plaintiff Cedano’s Declaration variously spells his name as “Cedeno” and “Cedano,”
and this Court cannot ascertain, from his signature, which is correct. This Court has therefore
used the spelling reflected in the case caption. If the caption is inaccurate, then Plaintiffs’
counsel should so inform the Court.
and overtime requirements depends on the nature of the work that the manager performed. See
29 C.F.R. § 541.02(b) (“The phrase ‘discretion and independent judgment’ must be applied in
the light of all the facts involved in the particular employment situation in which the question
arises.”); see, e.g., Klein v. Torrey Point Grp., LLC, 979 F. Supp. 2d 417, 428-29 (S.D.N.Y.
2013) (noting, in summary judgment context, that a manager’s specific job duties – including his
ability to set his own schedule and supervise other employees – are material “factors” to
determining whether he may be administrative exempt from the FLSA overtime requirement).
Cedano has provided no specific information on this point, and is directed to do so, so that this
Court can determine whether he is entitled to damages under the FLSA and/or the NYLL.
Plaintiffs are directed to supplement their damages submissions, consistent with this
Order, no later than June 25, 2021. Plaintiffs are further directed to serve a copy of their
supplemental submissions, together with a copy of this Order, on Defendants, by a means
reasonably calculated to reach them, and to file proof of such service on the Docket.
If Defendants wish to respond to Plaintiffs’ supplemental submission, then Defendants
shall submit their responses no later than July 2, 2021.
Defendant 2898 Bagel, however, may not, as a corporate entity, appear in this Court
without an attorney. For this reason, any response to Plaintiffs’ supplemental submission that
2898 Bagel wishes to file, including any request for a hearing with respect to that submission,
must be made through counsel, in order for that response to be considered by the Court.
If the individual defendant, Sela, wishes to respond to Plaintiffs’ supplemental
submission pro se (in other words, without counsel), then he may file his response by mailing it
to this Court’s Pro Se Office, at the following address:
Pro Se Intake Unit
500 Pearl Street
New York, NY 10007
Any submissions by Defendants should include the case number for this action
(18cv5953) at the top of the submissions.
IF DEFENDANTS FAIL TO RESPOND TO PLAINTIFFS’ SUPPLEMENTAL
SUBMISSION BY JULY 2, 2021, THEN THIS COURT WILL PROCEED TO ISSUE A
REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF
PLAINTIFFS’ WRITTEN SUBMISSIONS ALONE. FURTHER, THIS COURT WILL NOT
HOLD A HEARING ON DAMAGES, UNLESS ANY DEFENDANT REQUESTS A
HEARING, IN WRITING, BY JULY 2, 2021. See Action S.A. v. Marc Rich & Co., 951 F.2d
504, 508 (2d Cir. 1991) (Fed. R. Civ. P. 55(b)(2) “allows but does not require . . . a hearing”);
Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989) (“[I]t [is] not necessary for
the District Court to hold a hearing, as long as it ensured that there was a basis for the damages
specified in a default judgment.”).
Dated: New York, New York
June 7, 2021
United States District Judge
Plaintiffs’ Counsel (via ECF)
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