Samaniego et al v. HKS Builders & Consultants Inc. et al

Filing 19

ORDER. The Court concludes that Plaintiffs are entitled to relief on their claims for back wages, for wage notice and wage statement violations, and for attorneys' fees and costs. The Court awards to each Plaintiff an identical award compris ing $8,930.63 in back wages, with 9% prejudgment interest accruing from November 15, 2018; $8,930.63 in liquidated damages; $5,000 for Defendants' violation of NYLL § 195(1); and $5,000 for Defendants' violat ion of NYLL § 195(3). This amounts to $27,861.26 per Plaintiff and $55,722.52 in total, not including interest. The Court also awards attorneys' fees in the amount of $5,912.50 and costs in the amount of $400. "[I]f any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after the expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automaticall y increase by fifteen percent." NYLL § 198(4). Finally, the Court awards post-judgment interest pursuant to 28 U.S.C. § 1961 The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Court directs Plaintiffs to transmit a copy of this Order to Defendants through any means they have previously used to communicate with Defendants. SO ORDERED. (Signed by Judge Katherine Polk Failla on 2/17/21) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELSIN AMAY SAMANIEGO and HENRY AMAY
SAMANIEGO, individually and on behalf of all
others similarly situated,
Plaintiffs,
-v.-

19 Civ. 10283 (KPF)
ORDER

HKS BUILDERS & CONSULTANTS INC., and
AMARJIT SINGH, as an individual,
Defendants.
KATHERINE POLK FAILLA, District Judge:
The Court entered default judgment in this matter in favor of Plaintiffs
Elsin Amay Samaniego and Henry Amay Samaniego on October 23, 2020, and
directed Plaintiffs to submit a schedule of proposed damages, attorneys’ fees,
and costs. (Dkt. #17). 1 Plaintiffs filed their affirmation and supporting exhibits
on November 24, 2020. (Dkt. #18). Defendants have contested neither
imposition of the default judgment nor Plaintiffs’ proposed damages, fees, and
costs figures. This Order, which assumes familiarity with the underlying facts
and procedural history of the case, resolves Plaintiffs’ applications.
DISCUSSION
A.

Calculation of Damages
To determine the amount of damages that should be awarded on a

default judgment, Federal Rule of Civil Procedure 55(b)(2) “leaves the decision

1

This case was initially brought as a collective action, but default judgment was entered,
and damages are sought, only with respect to the two named Plaintiffs. Thus, any
reference herein to “Plaintiffs” refers to the two named Plaintiffs.

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of whether a hearing is necessary to the discretion of the district court.”
Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); see also
Lenard v. Design Studio, 889 F. Supp. 2d 518, 527 (S.D.N.Y. 2012). And
“[w]here, on a damages inquest, the plaintiff makes a damages submission and
the defaulting defendant makes no submission in opposition and does not
request a hearing, the court may determine the adequacy of the plaintiff’s
damages claim based on its submitted proofs.” Lenard, 889 F. Supp. 2d at
527. The Court has reviewed the materials submitted by Plaintiffs’ counsel and
believes that no further inquest is necessary. (See Dkt. #18 (Affirmation of
Roman Avshalumov (“Avshalumov Aff.”) and exhibits)).
1.

Unpaid Overtime Wages

An employee who brings an action under the Fair Labor Standards Act
(the “FLSA”) or the New York Labor Law (the “NYLL”) for unpaid wages must
prove that he performed the work and was not compensated properly for his
time. See Grochowski v. Phoenix Constr., 318 F.3d 80, 87 (2d Cir. 2003) (citing
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). Where, as
here, Plaintiffs bring claims under both statutes, they “may not receive a
‘double recovery’ of back wages under both the FLSA and [the] NYLL.”
Hernandez v. JRPAC Inc., No. 14 Civ. 4176 (PAE), 2016 WL 3248493, at *31
(S.D.N.Y. June 9, 2016) (quoting Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446
U.S. 318, 333 (1980)); cf. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (per
curiam) (“We therefore interpret the NYLL and FLSA as not allowing duplicative
liquidated damages for the same course of conduct.”).

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The FLSA requires an employer to “make, keep, and preserve” records of
employee wages, hours, and employment conditions. 29 U.S.C. § 211(c).
Under the FLSA, “[w]hen an employer fails to maintain accurate and complete
records of the hours employees work and the amounts they are paid, the
plaintiff-employee need only … submit ‘sufficient evidence from which
violations of the [FLSA] and the amount of an award may be reasonably
inferred.’” Gonzalez v. Masters Health Food Serv. Inc., No. 14 Civ. 7603 (VEC),
2017 WL 3835960, at *16 (S.D.N.Y. July 27, 2017) (quoting Reich v. S. New
England Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997)). An employee
discharges his burden at this first step “if he … can prove that [he] ‘in fact
performed work for which he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of that work as a matter of
just and reasonable inference.’” JRPAC, 2016 WL 3248493, at *27 (quoting
Anderson, 328 U.S. at 687). “This burden is ‘not high’ and may be met
‘through estimates based on [the employee’s] own recollection.’” Id. (quoting
Kuebel v. Black & Decker, Inc., 643 F.3d 352, 362 (2d Cir. 2011)).
If an employee makes this showing, “[t]he burden then shifts to the
employer to come forward [i] with evidence of the precise amount of work
performed or [ii] with evidence to negative the reasonableness of the inference
to be drawn from the employee’s evidence.” JRPAC, 2016 WL 3248493, at *27
(quoting Anderson, 328 U.S. at 687-88). “If the employer fails to [do so], the
court may then award damages to the employee, even though the result may be
only approximate.” Id. (quoting Anderson, 328 U.S. at 688).

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“A similar standard applies to unpaid compensation claims under [the]
NYLL.” Gonzalez, 2017 WL 3835960, at *16; see also Garcia v. JonJon Deli
Grocery Corp., No. 13 Civ. 8835 (AT), 2015 WL 4940107, at *4 n.8 (S.D.N.Y.
Aug. 11, 2015) (“Courts use the same burden-shifting framework to determine
liability for unpaid overtime under the NYLL [and the FLSA].”). But under the
NYLL, an employer who fails to keep accurate records shoulders a more
stringent burden of proof. “NYLL § 196-a provides that where an employer fails
to ‘keep adequate records or provide statements of wages to employees as
required’ by the statute, the employer ‘shall bear the burden of proving that the
complaining employee was paid wages, benefits and wage supplements.’”
Canelas v. World Pizza, Inc., No. 14 Civ. 7748 (ER), 2017 WL 1233998, at *9
(S.D.N.Y. Mar. 31, 2017) (quoting NYLL § 196-a(a)); see also Gamero v. Koodo
Sushi Corp., 272 F. Supp. 3d 481, 498 (S.D.N.Y. 2017). “If an employer cannot
satisfy its burden under the FLSA, it cannot satisfy th[is] ‘more demanding
burden’ of the NYLL.” Canelas, 2017 WL 1233998, at *9 (quoting Doo Nam
Yang v. ACBL Corp., 427 F. Supp. 2d 327, 337 n.15 (S.D.N.Y. 2005)).
In light of Defendants’ purported failure to keep and provide to Plaintiffs
detailed pay records, and to dispute Plaintiffs’ proffer of their unpaid wages, the
Court accepts, as the best estimates of this information, the figures provided in
Plaintiffs’ counsel’s affirmation and supporting exhibits. These materials
reflect that Plaintiffs each worked 238.15 hours of overtime compensated at
their regular wage rather than the 1.5x rate required by 29 U.S.C. § 207(a)(1)
and N.Y. Comp. Codes R. & Regs., tit. 12, § 142-2.2. (Dkt. #18, Ex. B). From

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its review of the evidence, the Court concludes that Plaintiffs are each entitled
to $8,930.63 in back wages.
2.

Liquidated Damages

Under the terms of NYLL § 663, each Plaintiff is also entitled to
liquidated damages “equal to one hundred percent of such underpayments
found to be due,” in the absence of a defense showing of “a good faith basis to
believe that its underpayment of wages was in compliance with the law.” See
Marcelino v. 374 Food, Inc., No. 16 Civ. 6287 (KPF), 2018 WL 1517205, at *1718 (S.D.N.Y. Mar. 27, 2018) (quoting NYLL § 663); see also Rana, 887 F.3d at
122-23. To present this defense, the employer must show that it “took ‘active
steps to ascertain the dictates of the FLSA and then act to comply with them.’”
Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008)
(quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)). In
addition, the employer must show that its good-faith actions were objectively
reasonable. RSR, 172 F.3d at 142. The Second Circuit has observed that “the
employer’s burden [is] ‘a difficult one,’ emphasizing that ‘double damages [are]
the norm and single damages the exception.’” Barfield, 537 F.3d at 150
(quoting RSR, 172 F.3d at 142). Defendants have made no such showing in
this case. Accordingly, during the relevant time period, Plaintiffs were each
entitled to a liquidated damages award in the amount of 100 percent of back
wages, which for each Plaintiff is $8,930.63.

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B.

Penalties for Recordkeeping and Wage Statement Violations
The NYLL also requires employers to provide wage notices to employees

at the time of hiring, as well as accurate wage statements at the time wages are
paid. See NYLL §§ 195(1)(a) & (3). Plaintiffs have alleged that they received no
such notices and statements either at the beginning or for the duration of their
employment, and the Court has no basis to doubt these claims. Under NYLL
§ 198(1-b), employees are entitled to recover wage-notice statutory damages of
$50 dollars “for each work day that the violations occurred or continue to
occur,” not to exceed $5,000. And under NYLL § 198(1-d), employees are
entitled to recover wage-statement statutory damages of $250 dollars “for each
work day that the violations occurred or continue to occur,” not to exceed
$5,000. Here, these two penalties require an additional $10,000 award for
each Plaintiff.
C.

Prejudgment Interest on Back Wages
Finally, employees may recover prejudgment interest with respect to their

back wages, but not with respect to liquidated damages or violations of the
wage statement or wage notice provisions. NYLL § 198(1-a); Salustio v. 106
Columbia Deli Corp., 264 F. Supp. 3d 540, 557 (S.D.N.Y. 2017). “New York law
sets the relevant interest rate at nine percent per year.” Ortega v. JR Primos 2
Rest. Corp., No. 15 Civ. 9183 (JCF), 2017 WL 2634172, at *6 (S.D.N.Y.
June 16, 2017) (citing N.Y. C.P.L.R. § 5004). To determine when prejudgment
interest begins to accrue, “[c]ourts applying [the] NYLL in wage-and-hour cases
‘often choose the midpoint of the plaintiff’s employment within the limitations

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period.’” Hengjin Sun v. China 1221, Inc., No. 12 Civ. 7135 (RJS), 2016 WL
1587242, at *6 (S.D.N.Y. Apr. 19, 2016) (quoting Tackie v. Keff Enters. LLC,
No. 14 Civ. 2074 (JPO), 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16, 2014)).
Accordingly, the Court will award prejudgment interest on Plaintiffs’ back
wages, starting from the midpoint of each Plaintiff’s employment, November 15,
2018.
D.

Attorneys’ Fees and Costs
“Under both the FLSA and the NYLL, a prevailing plaintiff may recover

his or her reasonable attorney’s fees and costs.” Almanzar v. 1342 St. Nicholas
Ave. Rest. Corp., No. 14 Civ. 7850 (VEC) (DF), 2016 WL 8650464, at *12
(S.D.N.Y. Nov. 7, 2016) (citing Najnin v. Dollar Mountain, Inc., No. 14 Civ. 5758
(WHP), 2015 WL 6125436, at *4 (S.D.N.Y. Sept. 25, 2015)); see 29 U.S.C. §
216(b); NYLL § 198(1-a). The Court has discretion to determine the amount of
attorneys’ fees that would be appropriate to satisfy a fee award. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983).
As a general matter, the “starting point” in analyzing whether claimed
attorneys’ fees are appropriate is “the lodestar — the product of a reasonable
hourly rate and the reasonable number of hours required by the case[.]” Millea
v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill
Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 183
(2d Cir. 2008), and Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)); see
generally Lilly v. City of New York, 934 F.3d 222, 227-34 (2d Cir. 2019)
(discussing calculation of reasonable hourly rates and reasonable number of

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hours expended). The party seeking fees bears the burden of demonstrating
that its requested hours and hourly rates are reasonable. See Allende v.
Unitech Design, Inc., 783 F. Supp. 2d 509, 512 (S.D.N.Y. 2011).
Courts focus “on setting a reasonable hourly rate, taking account of all
case-specific variables.” Arbor Hill, 522 F.3d at 189. The reasonable hourly
rate is “the rate a paying client would be willing to pay,” bearing in mind that a
“paying client wishes to spend the minimum necessary to litigate the case
effectively.” Id. at 190. When an attorney’s requested hourly rate is higher
than rates found to be reasonable in the relevant market, it is within the
court’s discretion to reduce the requested rate. See Savino v. Computer Credit,
Inc., 164 F.3d 81, 87 (2d Cir. 1998). Once a court has determined the
appropriate hourly rate, it must also examine whether the number of hours
billed was reasonable. The court “should exclude excessive, redundant[,] or
otherwise unnecessary hours[.]” Quaratino v. Tiffany & Co., 166 F.3d 422, 425
(2d Cir. 1999); see generally Murray v. UBS Sec., LLC, No. 14 Civ. 927 (KPF),
2020 WL 7384722, at *11-12 (S.D.N.Y. Dec. 16, 2020).
In addition to the lodestar amount, attorneys’ fees may include “those
reasonable out-of-pocket expenses incurred by attorneys and ordinarily
charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d
Cir. 1998) (citation omitted). These expenses, or “costs,” include court filing
fees. Rosendo v. Everbrighten Inc., No. 13 Civ. 7256 (JGK) (FM), 2015 WL
1600057, at *9 (S.D.N.Y. Apr. 7, 2015), report and recommendation adopted,
2015 WL 4557147 (S.D.N.Y. July 28, 2015).

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The Court has reviewed the submissions of Plaintiffs’ counsel
documenting the hours worked and the activities performed in support of this
action. (Avshalumov Aff., Ex. C). It accepts as a reasonable cost the filing fee
of $400.00. It also accepts the figure of 24.6 hours expended by Plaintiffs’
counsel (both attorneys and staff) on this case. However, it reduces the rates
charged by Mr. Avshalumov and Mr. O’Donnell to $400 per hour and $225 per
hour, respectively, to bring them in line with other decisions in this District.
See, e.g., Teofilo v. Real Thai Cuisine Inc., No. 18 Civ. 7238 (KPF), 2021 WL
22716, at *5, n.5 (S.D.N.Y. Jan. 4, 2021) (reducing senior partner’s rate to
$400 per hour and awarding $225 per hour for junior associate); Guzman
Iturbide v. Huntingwood, Inc., No. 18 Civ. 9036 (AJN), 2020 WL 4570492, at *2
(S.D.N.Y. Aug. 7, 2020) (awarding $400 per hour to senior partner and $250
per hour to associate); Rosendo, 2015 WL 1600057, at *9 (awarding $400 per
hour to senior partner and $225 per hour to associate). The Court accepts as
reasonable the rate of $75 per hour charged for paralegal time. Using these
figures, the Court awards $5,912.50 in attorneys’ fees.
CONCLUSION
For the reasons set forth above, the Court concludes that Plaintiffs are
entitled to relief on their claims for back wages, for wage notice and wage
statement violations, and for attorneys’ fees and costs. The Court awards to
each Plaintiff an identical award comprising $8,930.63 in back wages, with 9%
prejudgment interest accruing from November 15, 2018; $8,930.63 in
liquidated damages; $5,000 for Defendants’ violation of NYLL § 195(1); and

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$5,000 for Defendants’ violation of NYLL § 195(3). This amounts to
$27,861.26 per Plaintiff and $55,722.52 in total, not including interest.
The Court also awards attorneys’ fees in the amount of $5,912.50 and
costs in the amount of $400. “[I]f any amounts remain unpaid upon the
expiration of ninety days following issuance of judgment, or ninety days after
the expiration of the time to appeal and no appeal is then pending, whichever
is later, the total amount of judgment shall automatically increase by fifteen
percent.” NYLL § 198(4).
Finally, the Court awards post-judgment interest pursuant to 28 U.S.C.
§ 1961.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case. The Court directs Plaintiffs to
transmit a copy of this Order to Defendants through any means they have
previously used to communicate with Defendants.
SO ORDERED.
Dated: February 17, 2021
New York, New York
KATHERINE POLK FAILLA
United States District Judge