Bautista et al v. ABC Corp. et al
Filing
36
MEMORANDUM OPINION AND ORDER: re: 25 MOTION for Default Judgment as to ABC Corp. d/b/a Ocean Restaurant, John Doe a/k/a Boss and Lin Doe. filed by Mario Bautista. For the reasons stated, Plaintiff's motion for default judgment is granted a s against Defendant ABC Corp only. Plaintiff is awarded total damages, prejudgment interest, attorney's fees and costs in the amount of $154,854.04, comprising: (1) $1,180 minimum wage compensation; (2) $45,465.96 in overtime comp ensation; (3) $6,585.22 spread-of-hours compensation; (4) $3,150 electronic bicycle purchase and maintenance; (5) $53,231.18 liquidated damages; (6) $27,786.68 pre-judgment interest; (7) $10,000 WTPA damages; (8) $6,845 attorney's fees; and (9) $610 in costs. Plaintiff's motion for default judgment is denied as against the individual "Doe" defendants, who have not been identified or served, and this case is dismissed without prejudice as aga inst those defendants. The Clerk of Court is respectfully directed to enter judgment accordingly and close this case. This Memorandum Opinion and Order resolves Docket Entry no. 25. SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/31/2021) (ama) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MARIO BAUTISTA,
Plaintiff,
-v-
No. 19 CV 3963-LTS-RWL
ABC CORP d/b/a OCEAN RESTAURANT,
JOHN DOE, “LIN” DOE,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff Mario Bautista (“Plaintiff”) has moved for default judgment against
Defendants ABC Corp d/b/a Ocean Restaurant, John Doe, and “Lin” Doe, (collectively
“Defendants”) pursuant to Federal Rule of Civil Procedure 55(b)(2), on claims arising
pursuant to the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 207 et. seq. and New
York Labor Law (the “NYLL”), N.Y. Lab. Law § 160 et. seq. (Docket Entry nos. 26, (“Pl.
Memo.”)) Defendants have not formally appeared or responded to Plaintiff’s claims. The
Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 29 U.S.C. § 216(b),
and supplemental jurisdiction of the NYLL claims pursuant to 28 U.S.C. § 1367(a).
The Court has reviewed Plaintiff’s submissions carefully and, for the
following reasons, grants Plaintiff’s motion for default judgment as to all counts against
Defendant ABC Corp. All of Plaintiff’s claims against Defendants John Doe and “Lin” Doe
are dismissed without prejudice.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
1
BACKGROUND
The following recitation of facts is drawn from the Complaint (Docket Entry no. 1
(“Complaint”)), as well as from uncontroverted documentary evidence filed in support of the
instant motion practice. In light of Defendants’ failure to respond to the Complaint, the wellpleaded factual allegations contained therein are deemed admitted. 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’s factual proffers in support of the instant motion are uncontroverted. (Docket Entry no.
26.)
ABC Corp d/b/a Ocean Restaurant is a Chinese-style restaurant and domestic
business corporation operating under the laws of the State of New York. (Complaint, at ¶ 21.) Its
principal place of business is 393 Malcolm X Boulevard in New York City. (Id.) John Doe is
alleged to be the owner, officer, director, and/or managing agent of ABC Corp. (Id. at ¶ 13.)
“Lin” Doe is allegedly a stockholder of ABC Corp and makes all business decisions for the
organization. (Id. at ¶ 14.)
Plaintiff was allegedly employed as a delivery worker for ABC Corp from about
October 24, 2014, to March 2016. (Complaint, at ¶ 7.) During the winter months of Plaintiff’s
employment, he worked seven days per week. (Complaint, at ¶ 22.) His schedule was Monday
through Thursday from 11:00 AM to 11:00 PM, Friday and Saturday from 11:00 AM to 1:00
AM, and Sunday from 12:00 PM to 11:00 PM. (Id.) He was provided an hour break. Plaintiff
alleges that he worked approximately 81 hours per week during the winter months. (Id.) He
worked the same schedule during the summer months, except that on Tuesdays he worked from
5:00 PM to 11:00 PM. (Id. at ¶ 23.) Plaintiff alleges that he worked approximately 74 hours per
week during the summer months. (Id.) He claims he was paid $300 per week with no overtime
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
2
compensation, regardless of the total hours he worked. (Id. at ¶ 24.) Around May 25, Plaintiff
received a raise and was paid $350 per week, with no overtime compensation. (Id. at ¶ 25.)
Plaintiff was paid in cash throughout his employment. (Id. at ¶ 26.) Plaintiff also alleges that
Defendants requested he obtain an electric bicycle in order to make deliveries faster, which he
purchased for $1,450 and spent approximately $100 per month to maintain and repair.
(Complaint, at ¶ 27.) Plaintiff claims that he was not reimbursed by Defendants for these
expenses. (Id.)
Plaintiff served the Summons and Complaint in this action upon Defendant ABC
Corp on May 14, 2019, by delivery to the Office of the Secretary of State of New York. (Docket
Entry no. 5.) Plaintiff also served the Summons and Complaint upon Defendants on May 21,
2019, by personal service at the ABC Corp restaurant to Defendants’ co-worker. (Docket Entry
nos. 18, 19.) To date, Defendants have not filed a response nor formally appeared. A certificate
of default was issued by the Clerk of Court as to ABC Corp on September 12, 2019, and as to
John and “Lin” Doe on September 16, 2019. (Docket Entry nos. 17, 22). Plaintiff moved for
default judgment on September 20, 2019. (Docket Entry no. 25). 1
1
The Complaint asserted claims both individually and on behalf of an FLSA Collective.
However, Plaintiff has asserted only individual claims in his motion for default judgment.
(Docket Entry nos. 25, 26.) Furthermore, no class has been certified in this action and no
joinders have been filed. The request for collective action is therefore waived because
Plaintiff failed to reiterate his request in the motion for default judgment. See cf. Galicia
v. 63-68 Diner Corp., No. 13-CIV-3689 (PKC), 2015 WL 1469279, at *1 (E.D.N.Y. Mar.
30, 2015) (“Because Plaintiff now seeks a default judgment and has not reiterated his
request for collective action in the present motion, the Court considers Plaintiff's
collective action request waived.”); see also Lopic v. Mookyodong Yoojung Nakjie, Inc.,
No. 16-CIV-4179 (KAM) (CLP), 2017 WL 10845064, at *2 (E.D.N.Y. Sept. 30, 2017)
(entering a default judgment only in favor of the named plaintiff, where, despite “a clear
intent in his complaint to proceed as a collective action,” the plaintiff did not assert any
cause of action except his own in the motion for default judgment.) Accordingly, the
Court’s decision applies only to Plaintiff Bautista.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
3
DISCUSSION
In determining whether to grant a motion for default judgment, courts within this
district first consider three factors: “(1) whether the defendant’s default was willful; (2) whether
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.”
Santana v. Latino Express Restaurants, Inc., 198 F. Supp. 3d 285, 291 (S.D.N.Y. 2016) (citation
omitted); see also Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013)
(applying these factors in review of lower court grant of a default judgment).
All three factors weigh in Plaintiff’s favor as to his claims against Defendant
ABC Corp. 2 First, a defendant’s failure to appear and respond is generally deemed to satisfy a
finding of willfulness. See Fermin v. Las Delicias Peruanas Restaurant, Inc., 93 F. Supp. 3d 19,
31 (E.D.N.Y. 2015) (finding defendant’s nonresponse sufficient to demonstrate willfulness).
Here, Plaintiff properly served Defendant ABC Corp with the summons and complaint and
notice of this motion practice (Docket Entry nos. 5, 29), but Defendant ABC Corp did not
2
Default judgment against Defendants John and “Lin” Doe is not appropriate because they
have not been properly identified and served. “…[I]n civil cases, where a party fails to
respond, after notice the court is ordinarily justified in entering a judgment against the
defaulting party.” Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984). “Therefore, the
court should consider whether the plaintiff has shown that the defendant had notice of the
action and an opportunity to defend against it.” CIT Bank, N.A. v Paganos, No. 14-CIV3987 (CBA) (VMS), 2015 WL 13731361, at *3 (E.D.N.Y. Sept. 25, 2015). Here, service
was not proper for Defendants John Doe and “Lin” Doe. “[D]efault judgments cannot be
entered against unnamed or fictitious parties because they have not been properly
identified and served.” Id. (citation omitted); see also id. (“Plaintiff did not (and cannot)
secure entry of a default judgment against a John Doe defendant.”) Therefore, default
judgment is not appropriate for any claims against Defendants John and “Lin” Doe.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
4
answer, make an appearance, or request an extension of time in which to respond. Nor has
Defendant ABC Corp responded to this motion practice. Second, where a defendant fails to
answer the complaint, courts are unable to determine whether the defendant has a meritorious
defense. See Joseph v. HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013) (“Where a
defendant fails to answer the complaint, courts are unable to make a determination whether the
defendant has a meritorious defense to the plaintiff’s allegations”); see also Indymac Bank,
F.S.B. v. Natl. Settlement Agency, Inc., No. 07-CIV-6865 (LTS) (GWG), 2007 WL 4468652, at
*1 (S.D.N.Y. Dec. 20, 2007) (“the Court is unable to determine whether these defendants have a
meritorious defense to Plaintiff’s allegations because they have presented no such defense to the
Court). 3 Third, Plaintiff will be prejudiced and left with no other recourse if denied judgment by
default, as Defendant has willfully failed to respond to the Complaint and the present motion.
The Court must next “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.” Santana, 198 F. Supp. 3d at 291. If so, the Court “must go on to ‘determine the
appropriate amount of damages, which involves two tasks: determining the proper rule for
calculating damages on such a claim, and assessing plaintiff’s evidence supporting the
damages.’” Id. (quoting Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d
Cir. 1999)).
Counts One and Three: FLSA Minimum Wage and Overtime Wage Violations
3
The FLSA statute of limitations, which is at most three years, see 29 U.S. Code § 255(a),
is an affirmative defense that is forfeited if not raised in a defendant’s answer or an
amendment thereto. See Gunawan, 897 F Supp 2d at 87; see also Day v. McDonough,
547 U.S. 198, 199, 126 S.Ct. 1675, 1677 (2006) (“A statute of limitations defense is not
jurisdictional, therefore courts are under no obligation to raise the matter sua sponte”).
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
5
Plaintiff alleges that Defendant ABC Corp had a policy and practice of failing to
pay him the statutory minimum wage for at least some of the hours that he worked and that
Defendant ABC Corp failed to pay him overtime compensation for all hours that he worked in
excess of forty hours per workweek. To make a prima facie showing that Defendant ABC Corp
violated the minimum wage and overtime provisions of the FLSA, Plaintiff must first show that
he was a covered employee under the FLSA in that he was either (1) personally engaged in
interstate commerce, or (2) employed in an enterprise engaged in interstate commerce (the
“enterprise theory”). See Boekemeier v. Fourth Universalist Society in City of New York, 86 F.
Supp. 2d 280, 285 (S.D.N.Y. 2000); see also 29 U.S.C. §§ 206(a), 207(a). Under the enterprise
theory, the Second Circuit has adopted a multi-factor “economic reality” test to determine
whether an employment relationship exists. The test examines whether the alleged employerdefendant “(1) had the power to hire and fire the employee[], (2) supervised and controlled [his]
work schedule[] or conditions of employment, (3) determined the rate and method of payment,
and (4) maintained employment records.” Irizarry v. Catsimatidis, 722 F.3d 99, 105 (2d Cir.
2013) (quoting Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984)).
Plaintiff has alleged facts pertinent to three of the four economic reality test
factors. Specifically, Plaintiff alleges that Defendant ABC Corp had the power to hire him,
controlled his work schedule, determined his wages, and paid him in cash. (Complaint, at ¶¶ 7,
14.) See Guardado v. 13 Wall St., Inc., No. 15-CIV-02482 (DRH)(SIL), 2016 WL 7480358, at
*3 (E.D.N.Y. Dec. 2, 2016) (holding that plaintiff has sufficiently proven the employeremployee relationship by stating that he worked in a restaurant owned by defendant, that
defendant paid him on a weekly basis by cash and check, and that defendant docked his pay if he
missed work); see also Fermin, 93 F. Supp. 3d at 36 (finding liability where employer defendants
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
6
satisfied three of the four economic reality test factors). Plaintiff further alleges that Defendant
ABC Corp failed to keep full and accurate employment records. (Complaint ¶ 36); see Fermin,
93 F. Supp. 3d at 36 (finding an employment relationship even though defendant did not keep
employment records, noting that failure to do so is a violation of the FLSA). Accordingly, the
Court finds that Plaintiff has carried his burden of proffering uncontroverted facts demonstrating
that he had an employment relationship with Defendant ABC Corp within the meaning of the
FLSA.
Plaintiff must also demonstrate that Defendant ABC Corp is an “enterprise
engaged in interstate commerce.” Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114,
120 (E.D.N.Y. 2016). To be an enterprise engaged in interstate commerce, the defendantemployer must have (a) an annual gross sales volume of at least $500,000, and (b) “employees
handling, selling or otherwise working on goods or materials that have been moved in or
produced for commerce by any person.” 29 U.S.C. §§ 203(s)(1)(A)(i)-(ii); see Valdez v. H & S
Restaurant Operations, Inc., No. 14-CIV-4701 (SLT) (MDG), 2016 WL 3079028, at *2
(E.D.N.Y. Mar. 29, 2016). Here, Plaintiff alleges, and Defendant has not denied, that Defendant
ABC Corp is “engaged in interstate commerce and/or in the production of goods for commerce .
. . because they purchase food, supplies and restaurant equipment from out of the state of New
York and internationally.” (Complaint, at ¶ 10.) Along with Plaintiff’s allegation that Defendant
is a Chinese-style restaurant with gross annual sales of over $500,000 – with sales exceeding
$2,000 per day – these uncontroverted allegations are sufficient to establish that Defendant ABC
Corp is an enterprise engaged in interstate commerce. See Lopic, 2017 WL 10845064, at *4
(finding sufficient plaintiff’s mere recitation of statutory requirements because plaintiff alleged
that defendant operated a Korean restaurant and the court could reasonably infer that some
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
7
materials, such as ingredients or kitchen utensils, moved in interstate commerce). Even though
“inferring an interstate commerce nexus from nothing more than the general description of an
employer’s business . . . is in tension with both the presumption against default and the purpose
of [FRCP 55,]” a defendant forfeits any contention that the FLSA did not apply by defaulting
and failing to contest the issue. Gunawan v. Sake Sushi Restaurant, 897 F. Supp. 2d 76, 85-86
(E.D.N.Y. 2012). Accordingly, the Court finds that Defendant ABC Corp is “an enterprise
engaged in interstate commerce” under the FLSA. Plaintiff’s minimum wage and overtime
claims are therefore covered under the federal statute. 4
Counts Two and Four: NYLL Minimum Wage and Overtime Wage Violations
The NYLL and FLSA tests to determine whether an employment relationship
exists are similar and usually yield the same result. “If a court in this Circuit has already found
liability under the FLSA, it will routinely impose liability for a violation of the NYLL.” Lopic,
2017 WL 10845064 at *5. To determine whether an employment relationship exists under the
NYLL, courts examine the degree of control exercised by the alleged employer over the results
produced or the means used to achieve those results. Meyer v. U.S. Tennis Ass'n, 607 F. App'x
121, 122-123 (2d Cir. 2015). There are five factors relevant to this analysis: whether the worker
“(1) worked at his own convenience, (2) was free to engage in other employment, (3) received
4
The FLSA does not extend minimum wage and overtime protections to “any employee
employed in a bona fide executive, administrative, or professional capacity ... or in the
capacity of [an] outside salesman.” 29 U.S.C. § 213(a)(1). Plaintiff does not fall into this
FLSA employee exemption because he was working as a delivery driver for Defendant
ABC Corp, similar to the non-exempt positions of waitress, kitchen helper, or cook.
See Fermin, 93 F. Supp. 3d at 3.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
8
fringe benefits, (4) was on the employer’s payroll, and (5) was on a fixed schedule.” Id. at 123
(citation omitted).
Here, Plaintiff alleges that he did not work at his own convenience because had to
start and finish his shifts at specified times and was given scheduled breaks. See Mahoney v.
Amekk Corp., No. 14-CIV-4131 (ENV) (VMS), 2016 WL 6585810, at *7 (E.D.N.Y. Sept. 30,
2016) (finding plaintiff did not work at her own convenience because she had to start her shift at
a bar at a specific hour and end at a specific hour). Plaintiff alleges that he was employed by
Defendant from October 2014, to March 2016, worked set hours for 74 to 81 hours per week,
and received weekly wages in cash of $300 - $350. (Complaint, at ¶¶ 22-25.) Thus, Plaintiff has
demonstrated that he was on Defendant’s payroll and worked a fixed schedule. While the
complaint does not allege whether Plaintiff was free to take on another job or was provided
fringe benefits, the Court finds that the complaint’s allegations suffice to establish that Defendant
ABC Corp exercised control over Plaintiff’s work and therefore was his employer under the
NYLL.
Plaintiff has also established Defendant’s liability for minimum wage and
overtime violations under the FLSA and the NYLL. During Plaintiff’s employment, the
applicable hourly minimum wage under the FLSA was $7.25 per hour. 29 U.S.C. §206(a)(1)(C).
Under the NYLL, the applicable minimum wage was $8.00 per hour from October 24, 2014, to
December 30, 2014; $8.75 per hour from December 31, 2014, to December 30, 2015; and $9.00
per hour from December 31, 2015, to March 31, 2016. N.Y. Lab. Law § 652(1).
Plaintiff was paid $300 per week from October 24, 2015, until May 2015, when
he was paid $350 per week until his termination on March 31, 2016. (Docket Entry no. 27, (“Pl.
Aff.”), at ¶¶ 5-6.) Plaintiff alleges that he worked 81 hours per week during the winter months
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
9
and 74 hours per week during the summer months. (Pl. Aff., at ¶¶ 3-4.) 5 Plaintiff’s counsel has
calculated Plaintiff’s hourly wage by dividing his weekly salary by 40 hours to arrive at the
following hourly wages: $7.50 for October 24, 2015, to April 30, 2015, ($300/40) and $8.75 for
May 1, 2015 to March 31, 2016 ($350/40). (Docket Entry no. 28-3.) These rates fall below the
minimum wage rates required under the NYLL for most of the employment period. Plaintiff’s
counsel determined unpaid minimum wages by calculating the difference between the applicable
New York minimum wage rate and Plaintiff’s hourly rate, multiplying that difference by 40
hours per week, and then multiplying that product by the total number of weeks worked. Id.
According to counsel’s calculation, Plaintiff is owed minimum wage payments in the following
amounts: $200 for October 24, 2014, to December 31, 2014, ($0.50 x 40 hours x 10 weeks);
$850 for January 1, 2015, to April 30, 2015; and $130 for January 1, 2016, to March 31, 2016.
The Court concurs in these calculations, and Plaintiff is therefore owed a total of $1,180 for
minimum wage violations.
The FLSA and NYLL both require Defendant to compensate Plaintiff for any
hours worked in excess of forty hours per week at a rate of no less than one-half times the
regular rate of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 146-1.4. Plaintiff worked over forty
hours per week throughout his employment, but his pay did not vary with the number of hours he
worked. See Rodriguez, 784 F. Supp. 2d at 122 (finding overtime violation where “the
5
The Court credits Plaintiff’s undisputed estimates of hours worked and wages earned.
Under the FLSA and NYLL, Plaintiff “has the burden of proving that he performed work
for which he was not properly compensated.” Fermin, 93 F. Supp. 3d at 41 (citation
omitted). If his employer failed to keep records of hours and wages, then Plaintiff’s
estimates based on his own recollection may constitute sufficient evidence. Kuebel v.
Black and Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). The employer may provide
contrary evidence, but if the employer fails to do so, the court may “award damages to
the employee, even though the result be only approximate.” Id.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
10
complaint alleges that Plaintiffs worked more than 40 hours a week and were not paid time-anda-half for their overtime hours”). Accordingly, the Court finds Defendant ABC Corp failed to
pay Plaintiff overtime premiums in violation of both the FLSA and NYLL. However, Plaintiff
may only recover once, and courts generally rely on whichever statute provides the greater
recovery. Quiroz v. Luigi’s Dolceria, Inc., No. 14-CIV-871 (VVP), 2016 WL 2869780, at *3-4
(E.D.N.Y. May 17, 2016). Here, both the FLSA and NYLL yield the same result. Overtime
compensation is determined by multiplying the number of hours Plaintiff worked a week in
excess of 40 hours by 1.5 times Plaintiff’s regular rate of pay: Plaintiff’s weekly salary divided
by 40 hours per week. See, e.g., Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 338
(S.D.N.Y. 2005); see also 29 U.S.C.A. § 207(a)(1). Where Plaintiff’s regular rate of pay was
less than the minimum wage however, the Court calculates overtime compensation rate by
multiplying 1.5 times the minimum wage by Plaintiff’s hours in excess of 40 hours a week. See,
e.g., Tian Xi Yang v. Shanghai Heping Restaurant, Inc., No. 20-CIV-815 (JGK) (SDA), 2021
WL 468402, at *4 (S.D.N.Y. Jan. 14, 2021) (calculating overtime wages using the minimum
wage). Here, Plaintiff’s overtime rate was $12.00 for October 24, 2014, to December 31, 2014
(1.5 x $8.00), $13.13 from January 1, 2015, to December 31, 2015 (1.5 x $8.75), and $13.50
from January 1, 2016, to March 31, 2016 (1.5 x $9.00). These overtime rates are multiplied by
the number of overtime hours Plaintiff worked each week, and by the total number of weeks
Plaintiff worked. Using the regular minimum rate of pay, Plaintiff’s unpaid overtime amounts
to: $4,920.00 for October 24, 2014, to December 31, 2014, ($12.00 x 41 hours per week x 10
weeks); $9,151.61 for January 1, 2015, to April 30, 2015; $8,928.40 for May 1, 2015, to
September 15, 2015; $8,074.95 for September 16, 2015, to December 31, 2015; and $7,195.50
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
11
for January 1, 2016, to March 31, 2016. Accordingly, Plaintiff is entitled to $45,465.96 in
overtime compensation.
Counts Five, Seven, and Eight: Spread-of-hours Pay, Wage Notice Requirement, and Pay Stub
Requirement Violations Under the NYLL
The NYLL provides that employees receive one additional hour of pay at the
basic minimum hourly rate for each day that the spread-of-hours exceeds ten. 12 N.Y.C.R.R. §
146-1.6(a). The “spread-of-hours” is the “length of the interval between the beginning and end
of an employee’s workday.” Id. Here, Plaintiff claims that his workday spanned over ten hours
a day, seven days a week during the winter months, (Docket Entry no. 28, at ¶ 4), and six days a
week during the summer months. Id. Plaintiff proffered that most of his workdays lasted more
than ten hours a day, but that Defendants did not pay him an additional hour’s pay at the
minimum wage. (Docket Entry no. 27, at ¶ 8.) Accordingly, Defendant ABC Corp is liable for
spread-of-hours damages. The spread-of-hours pay owed is calculated by multiplying the
applicable New York minimum wage rate by the total number of hours per week that the spreadof hours exceeded ten, multiplied by the total number of weeks worked. Here, Defendant ABC
Corp is liable for spread-of-hours damages in the following amounts: $840 for October 24, 2014,
to December 31, 2014, ($12 x 7 hours per week x 10 weeks); $1,562.47 for January 1, 2015, to
April 30, 2015; $1,575.6 for May 1, 2015, to September 15, 2015; $1,378.65 for September 16,
2015, to December 31, 2015; and $1,228.5 for January 1, 2016, to March 31, 2016. (See Docket
Entry no. 28-3.) Accordingly, Plaintiff is entitled to $6,585.22 for spread-of-hours violations.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
12
Under New York’s Wage Theft Prevention Act (“WTPA”), 6 an employer must
provide (1) at the time of hiring, a notice containing specific information including but not
limited to “the rate or rates of pay . . . whether [the position is] paid by the hour, shift, day, week,
salary . . . the physical address of the employer’s main office . . . the telephone number of the
employer . . .”; and (2) “a statement with every payment of wages, listing . . . the dates of work
covered by that payment of wages” as well as pay rate information. N.Y. Lab. Law §§ 195-1(a),
195-3. Here, Plaintiff alleges, and Defendant ABC Corp has not denied, that Defendants did not
provide a wage notice at the time of hire and that he was paid weekly in cash but did not receive
a wage statement for each of his pay periods. (Docket Entry no. 27, at ¶¶ 9-10.) Accordingly,
the Court finds that Defendant ABC Corp failed to provide a wage notice at the time of hiring
and failed to meet the New York pay stub requirements under the NYLL.
The WTPA provides that an employee may recover $50 each workday, after
February 27, 2015, for an employer’s failure to provide wage notice at the time of hiring, up to a
maximum of $5,000. N.Y. Lab. Law § 198(1-b). For an employer’s failure to provide wage
statements, an employee may recover $250 each workday, not to exceed $5,000. N.Y. Lab. Law
§ 198(1-d). Plaintiff worked more than 100 days from February 27, 2015, until his termination
on March 31, 2016, and is therefore entitled to the maximum award of $10,000 for Defendant
ABC Corp’s time of hire wage notification violation and New York pay stub requirement
violation.
6
Although Plaintiff does not refer to the WTPA in the Complaint, instead bringing his
time of hire wage notice and New York pay stub claims under the NYLL, this Court
holds that Plaintiff adequately stated a claim under the WTPA. (Complaint, at ¶¶ 82, 87);
see Inclan v. New York Hosp. Group, Inc., 95 F Supp 3d 490 (S.D.N.Y. 2015) (holding
Plaintiffs adequately stated a claim under the WTPA, even though the claims referred
generally to the New York Labor Law rather than the WTPA).
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
13
Count Six: Expenses Relating to Tools of the Trade
Plaintiff seeks reimbursement for expenses incurred purchasing and maintaining
an electric bicycle at the direction of his employer. “Vehicles such as bicycles, motorcycles, and
mopeds are considered ‘tools of the trade’ if employees are required to possess and utilize them
in the course of their employment.” Guan Ming Lin v. Benihana Nat'L Corp., 755 F. Supp. 2d
504, 511 (S.D.N.Y. 2010) (citing Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 257–58
(S.D.N.Y. 2008) (finding that plaintiff delivery persons' bicycles were tools of the trade because
employer required all delivery persons to own and maintain “vehicular transportation” as a
condition of their employment)). Further, “[i]f it is a requirement of the employer that the
employee must provide tools of the trade which will be used in or are specifically required for
the performance of the employer's particular work, there would be a violation of the [FLSA] in
any workweek when the cost of such tools purchased by the employee cuts into the minimum or
overtime wages required to be paid him under the [FLSA].” Id. (citing 29 C.F.R. § 531.35).
Plaintiff proffers that Defendants directed him to purchase an electronic bicycle to
make faster deliveries. (Docket Entry no. 27, at ¶ 13.). The Court infers that the bicycle was
thus a requirement for the job. See, e.g., He v. Home on 8th Corp., 09-CIV-5630 GBD, 2014
WL 3974670, at *9 (S.D.N.Y. Aug. 13, 2014) (Plaintiffs were “effectively required” to have
bicycles to fulfill their delivery responsibilities across a large geographic area of New York
City). Plaintiff alleges, and Defendant ABC Corp has admitted by virtue of default, that he
purchased the bicycle for $1,450 and spent $100 each month in maintenance and repairs over 17
months. Accordingly, Plaintiff is granted $3,150 for the purchase and maintenance of the
electronic bicycle.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
14
Liquidated Damages
Plaintiff seeks liquidated damages under both the FLSA and NYLL. “Under the FLSA, a
district court is generally required to award a plaintiff liquidated damages equal in amount to
actual damages” for violations of the FLSA's minimum wage and overtime provisions. Barfield
v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (citing 29 U.S.C. § 216(b)).
Similarly, the NYLL provides for liquidated damages in addition to actual damages in certain
instances. See id. (citing N.Y. Labor Law §§ 198(1–a), 663(1)). However, Plaintiff cannot
recover liquidated damages under both statutes. See Rana v. Islam, 887 F.3d 118, 123 (2d Cir.
2018). Accordingly, this Court grants Plaintiff liquidated damages under the NYLL.
See Rodriguez v. Queens Convenience Deli Corp., No. 09–CIV–1089, 2011 WL 4962397
(KAM) (SMJ), at *2 (E.D.N.Y. Oct. 18, 2011) (noting that “plaintiff may recover under the
statute which provides the greatest amount of damages”) (citation omitted). Plaintiff is entitled
to liquidated damages equal to his unpaid minimum wages, overtime compensation, and spread
of hours pay which equals $53,231.18.
Pre-judgment Interest
Pre-judgment interest on NYLL damage awards is calculated at 9% per
year. N.Y.C.P.L.R. § 5004. For cases in which damages were “incurred at various times,
interest shall be computed upon each item from the date it was incurred or upon all of the
damages from a single reasonable intermediate date.” N.Y.C.P.L.R. § 5001(b). Plaintiff’s
counsel has suggested June 12, 2015, as the intermediate date, which marks the approximate
half-way point in Plaintiff’s employment. (Docket Entry no. 28-3.) The Court finds this mid-
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
15
point date to be a reasonable intermediate date and, accordingly, the Court grants Plaintiff
interest on the $53,231.18 damages award from June 12, 2015, the intermediate date, through the
date on which judgment is entered, at the rate of 9% per year. Plaintiff is therefore granted prejudgment interest in the amount of $27,786.68.
Attorney’s Fees
The party seeking reimbursement of attorney's fees bears the burden of proving
the reasonableness and the necessity of the hours spent and rates charged. See generally N.Y.S.
Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). Requests for
attorney's fees in this Circuit must be accompanied by contemporaneous time records that show
the date the work was done for each attorney, “the hours expended, and the nature of the work
done.” Id.; see also Scott v. City of N.Y., 643 F.3d 56, 58–59 (2d Cir. 2011). In support of his
claim for attorney's fees and costs, Plaintiff submitted an invoice. (Docket Entry no. 28-2.)
Plaintiff’s counsel, Ms. Liu, seeks an hourly rate of $300. Plaintiff’s prior counsel, Ms. Duarte,
seeks an hourly fee of $250.00, and Mr. Huang an hourly fee of $350. Id. The rates requested
are reasonable. See Kontis v. Karahalis, 409 Fed. Appx. 418, 422-23 (2d Cir. 2011) (collecting
cases and affirming district court order holding that the prevailing rates for experienced attorneys
range from approximately $300 to $400 per hour). The invoice reflects that Plaintiff’s counsel
spent a total of 23.9 hours litigating this case. The time allotted for each task comprising the
23.9 hours appears reasonable. Plaintiff is therefore granted the $6,845 requested for attorney’s
fees and $610 in administrative costs. (See Docket Entry no. 28-3.)
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
16
Postjudgment Interest
Pursuant to 28 U.S.C. § 1961, post-judgment interest is mandatory for awards in
civil cases as of the date judgment is entered. Tru-Art Sign Co. v. Local 137 Sheet Metal
Workers Int'l Ass'n, 852 F.3d 217, 223 (2d Cir. 2017) (citation omitted). Accordingly, Plaintiff
is awarded post-judgment interest on the total damages award, at the rate set forth in 28 U.S.C. §
1961, calculated from the date on which the Clerk of Court enters judgment until the date of
payment. See Fermin, 93 F. Supp. 3d at 53 (collecting cases).
CONCLUSION
For the reasons stated, Plaintiff’s motion for default judgment is granted as
against Defendant ABC Corp only. Plaintiff is awarded total damages, prejudgment interest,
attorney’s fees and costs in the amount of $154,854.04, comprising: (1) $1,180 minimum wage
compensation; (2) $45,465.96 in overtime compensation; (3) $6,585.22 spread-of-hours
compensation; (4) $3,150 electronic bicycle purchase and maintenance; (5) $53,231.18
liquidated damages; (6) $27,786.68 pre-judgment interest; (7) $10,000 WTPA damages; (8)
$6,845 attorney’s fees; and (9) $610 in costs.
Plaintiff’s motion for default judgment is denied as against the individual “Doe”
defendants, who have not been identified or served, and this case is dismissed without prejudice
as against those defendants.
The Clerk of Court is respectfully directed to enter judgment accordingly and
close this case.
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
17
This Memorandum Opinion and Order resolves Docket Entry no. 25.
SO ORDERED.
Dated: New York, New York
March 31, 2021
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
BAUTISTA - DJ ORD.DOCX
VERSION MARCH 31, 2021
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?