Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
VELEZ v. VASSALLO
March 26, 2002
WALTER VELEZ, ET AL., PLAINTIFFS,
JOSEPH VASSALLO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Kaplan, District Judge.
In September 2000, this Court entered a default judgment against
defendants in this Fair Labor Standards Act ("FLSA") case. Almost a year
later, defendants moved to vacate the judgment, and the Court referred
the motion to Magistrate Judge Katz for an inquest. Judge Katz rendered a
report and recommendation, dated March 6, 2002, in which he recommended
denial of the motion. Plaintiffs object to the limited extent that it did
not act on their application for legal fees in defending the judgment.
Defendants have not objected and have not responded to plaintiffs'
It is perfectly clear that Judge Katz was right in recommending denial
of the motion to vacate the judgment. Defendants' actions with respect to
this matter, from beginning to end, can be characterized only as a wilful
disregard of the legal system and of their obligations to it. The motion
to vacate the default judgment was utterly lacking in merit and seems to
have been intended solely for purposes of delay.
So far as plaintiffs' limited objection is concerned, prevailing
plaintiffs in FLSA cases are entitled to attorneys' fees for prosecuting
or defending appeals. E.g., Caserta v. Home Lines Agency, Inc.,
273 F.2d 943, 948 (2d Cir. 1959); Aaron v. Bay Ridge Operating Co.,
162 F.2d 665, 670 (2d Cir. 1947), mod. and aff'd, 334 U.S. 446, 68 S.Ct.
1186, 92 L.Ed. 1502 (1948). Plaintiffs' successful defense of a
postjudgment motion is indistinguishable in principle. Accordingly,
plaintiffs are entitled to a reasonable attorneys' fee and expenses.
The time expended, billing rate, and expenses incurred by plaintiffs'
counsel were reasonable. In addition, the proposed changes to the fee
previously awarded are appropriate. Accordingly, defendants' motion to
vacate the default judgment is denied. The default judgment is modified
increase the award for attorneys' fees and expenses to $19,989.80.
REPORT AND RECOMMENDATION
KATZ, United States Magistrate Judge.
On October 2, 2000, pursuant to an Order of the Honorable Lewis A.
Kaplan, U.S.D.J., dated September 28, 2000, the Clerk of the Court
entered a Default Judgment totaling $141,403.66 against Defendants on
behalf of Plaintiffs and their attorney, Leon Greenberg. Defendants have
now moved the Court under Fed.R.Civ.P. 60(b)(4), for an order vacating
the Default Judgment, on the grounds that the Judgment is void for lack
of personal and subject matter jurisdiction, and under Fed.R.Civ.P. 60
(b)(6), on the grounds that allowing the Judgment to stand would offend
The facts underlying this case were set forth in my Report and
Recommendation of August 23, 2000, which was adopted by the Court by
Order dated September 14, 2000. Accordingly, I will provide only those
facts that bear on the resolution of the instant motion.
Plaintiffs, Walter Velez, John Penafiel, Romeo Siguenza, and Jhofre
Penafiel (collectively, "Plaintiffs"), filed an Amended Complaint against
Defendants, Joseph Vassallo, Beacon 76th Garage, Cross Garage Corp.,
Double Garage Corp., Wall Street Garage, 331 50th St. Parking, 60th
Storage Corp., 76th Garage Corp., and JK Improvements, Inc.
(collectively, "Defendants"), on December 6, 1999, alleging violations of
the Fair Labor Standards Act ("FLSA") and New York labor laws.
Essentially, Plaintiffs claimed that they were employed as garage
attendants by Defendants, and that Defendants failed to compensate them
for a substantial number of hours worked in overtime. (Amended Complaint
("Am.Compl.") ¶¶ 3, 17-19; Plaintiffs' Attorney's Affirmation in Support
of Request for an Award of Damages at Inquest.) The Amended Complaint
alleges that Defendant Vassallo is sole or part owner, officer,
shareholder, and director of the other Defendants (the "corporate
Defendants"). (Am.Compl.¶¶ 6-8.) For his part, Defendant Vassallo now
acknowledges that he is an officer and shareholder of Defendant JK
Improvements, and that JK Improvements "manages indoor parking garages
and open parking lots." (Order to Show Cause, Affidavit of Joseph
Vassallo ("Vassallo Aff.") ¶ 4.) Neither Mr. Vassallo nor the other
Defendants ever answered or otherwise appeared in the litigation until
the instant motion, and on March 15, 2000, upon motion of Plaintiffs, the
Court entered a Default Judgment against all of the named Defendants,
establishing their joint and several liability as to the relief sought in
the Amended Complaint.*fn1 The case was then referred to me for an
inquest on damages.
Pursuant to this Court's directives, Plaintiffs submitted materials in
support of their request for damages, including attorney's fees, which
were served on Defendants. Defendants' counsel, Maurice Blum,
subsequently wrote this Court asking for a stay of its proceedings in
order to give him time to make a motion to vacate the entry of the
Default Judgment. (Letter of Maurice H. Blum, Esq., Apr. 21, 2000,
attached as Exhibit ("Ex.") Q to
Affirmation of Leon Greenberg, Esq., in Opposition ("Greenberg Aff.") at
1.) Mr. Blum stated that he and his clients "intend[ed] to appear" in the
action. By Memorandum Endorsed Order dated April 24, 2000, I indicated
that the matter was before this Court only for an inquest on damages, and
that any motion to vacate the Default Judgment should be made to Judge
Kaplan. (Id. at 2.) No such motion was filed; nor did Defendants submit
any opposition to Plaintiffs' request for damages, or otherwise appear in
On August 23, 2000, this Court issued a Report and Recommendation,
which was sent to Plaintiffs and the defaulting Defendants, recommending
that the Default Judgment entered against Defendants, jointly and
severally, include the following damage awards with respect to the
1. Walter Velez: $12,562.50
2. John Penafiel: $23,385.00
3. Romeo Siguenza: $58,042.18
4. Jhofre Penafiel: $36,076.84
5. Attorney's Fees and Costs: $11,337.14
No objections to the Report and Recommendation were filed, and, as
noted, it was adopted on September 14, 2000. A Judgment in the above
amounts was entered.
Over ten months passed. On August 16, 2001, Defendants, by Order to
Show Cause, brought the instant motion under Rule 60 (b(4) to vacate the
Judgment as void, on the grounds that the Court lacked personal and
subject matter jurisdiction. Defendants also seek relief on equitable
grounds, under Rule 60(b)(6). Additionally, Defendants have requested
the imposition of Rule 11 sanctions against Plaintiffs and their
counsel, apparently on the grounds that Plaintiffs' allegations in the
Amended Complaint and in support of their request for damages were
false. (Defendants' Memorandum of Law ("Defs.Mem.") at 10.) Finally,
Defendants have requested an evidentiary hearing on these issues.
Plaintiffs oppose each of Defendants' claims on the merits, argue that
there is no need for an evidentiary hearing, and, in the alternative,
request an opportunity to conduct discovery in the event the Court deems
an evidentiary hearing necessary.
Defendants' motion was referred to me for a Report and Recommendation.
Upon reviewing the submissions, and upon hearing argument from counsel,
the Court concludes that an evidentiary hearing is not necessary to reach
a disposition on this matter. Defendants have been on notice of this
action since its inception, and chose to remain silent as this Court
adjudicated their default and liability for damages. They have been
extremely dilatory in bringing the instant motion, which this Court finds
meritless. Therefore, I recommend that Defendants' motion be denied in
A party may move for relief from a final judgement under Rule 60(b) of
the Federal Rules of Civil Procedure. The rule lists six bases for such
relief, one of which is that the judgment is void. See Fed.R.Civ.P. 60
(b)(4). A judgment is void
if entered by a court against a party over whom it lacks personal
jurisdiction, or on claims over which it lacks subject matter
jurisdiction. See Triad Energy Corp. v. McNell, 110 F.R.D. 382, 385
(S.D.N.Y. 1986). Unlike other motions under Rule 60(b), which are
committed to the district court's sound discretion, a motion under Rule
60(b)(4) must be granted if the court initially lacked jurisdiction. See
SEC v. Softpoint, Inc., No. 95 Civ. 2951 (GEL), 2001 WL 43611, at *2
(S.D.N.Y. Jan. 18, 2001); China Mariners' Assurance Corp. v. M.T. W.M.
Vacy Ash, No. 96 Civ. 9533(PKL), 1999 WL 126921, at *3 (S.D.N.Y. Mar. 9,
1999). Furthermore, although a Rule 60(b)(4) motion must be made "within
a reasonable time," courts have been `exceedingly lement in defining the
term "reasonable time,'" Beller & Keller v. Tyler, 120 F.3d 21, 24
(2d Cir. 1997), and have refused to apply the doctrine of laches as a bar
to relief under the rule, id. at 23; see also United States v. One
Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000)(en banc)
("Nearly overwhelming authority exists for the proposition that there are
no time limits to a challenge to a void judgment because of its status as
Accordingly, although Defendants had full notice of this lawsuit well
before any judgment was entered, and before the inquest on damages, and
although they offer no reason whatsoever for their delay in appearing in
this case,*fn3 the Court is nevertheless ...