The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
On October 16, 2003, Judge Rakoff (to whom the case was then assigned)
entered a default judgment for plaintiffs against defendants Jen Chu
Fashion Corp., Jen Chu Apparel, Inc., W & C Fashion Corp., Wong Chai
Sportswear Inc., Y & C Mfg. Inc., Jen Jen of New York Inc., and Calvin
Chen (hereafter collectively "the Calvin Chen defendants"). (Dkt. No.
Defendants Winnie Young Chen and her company, H.L.S. Fasion Corp.
(hereinafter collectively "the Winnie Chen defendants") were represented
by John Courtney, Esq., but Mr. Courtney moved to withdraw as counsel.
(See Dkt. No. 65.) The Court initially denied the
motion because Mr. Courtney "lost" his client, i.e., had no means to
reach her. (See Dkt. Nos. 65 & 68:10/17/03 & 11/3/03 Orders: see
also Dkt. No. 71:11/26/03 Courtney Letter to Court.) Neither Mr. Courtney
nor Ms. Chen have responded to plaintiffs' inquest/summary judgment
motion. (See Dkt. No. 70: 11/13/03 Order.) By memo endorsed Order dated
December 22, 2003, the Court granted Mr. Courtney's renewed withdrawal
application. (12/22/03 Memo Endorsed Order.) The Court has heard nothing
from Winnie Chen. Therefore, judgment against the Winnie Chen defendants
should be entered on default.
For the reasons discussed below, the Court should enter judgment for
plaintiffs against the Calvin Chen defendants and the Winnie Chen
defendants jointly and severally, for damages (including prejudgment
interest) of $556,577.07, attorneys' fees of $20,355, and costs of $90.
"Where, as here, `the court determines that defendant is in default,
the factual allegations of the complaint, except those relating to the
amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc.,
30 F. Supp.2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.)
(quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice &
Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).*fn2
There are twenty-three plaintiffs five original plaintiffs and
eighteen "opt in" plaintiffs pursuant to 29 U.S.C. § 216(b).
(See Dkt. No. 75: Plfs. Inquest Br. at 2 n.1.)
The Amended Complaint (Dkt. No. 5) alleges as follows:
Plaintiffs are Chinese immigrant garment workers who worked long hours
for the defendant companies producing expensive garments but were not
paid minimum wages or overtime. (Dkt. No. 5: Am. Compl. ¶ 1.)
Plaintiffs were paid either by the hour or by the piece. (Am. Compl.
¶ 6.) Plaintiffs worked at a garment factory at 519 Eighth Avenue in
New York City that had various corporate owners, all of which were
controlled by Calvin Chen and his then-wife Winnie Chen. (Am. Compl.
¶¶ 8-14.) Defendants thus were employers and joint employers of
plaintiffs under the
Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and
the New York Labor Law. (Am. Compl. ¶ 16.)
According to the Amended Complaint:
Plaintiffs worked for defendants generally seven
days a week. Prior to May 1999, the hourly workers,
Liu and Chen, generally worked eleven hours a day
during the weekdays and ten and eight hours a day on
Saturday and Sunday. Plaintiff Huang and the piece
workers, plaintiffs Jiang and Li, generally worked
twelve hours a day during the weekdays and ten and
eight hours a day on Saturday and Sunday. They were
rarely paid overtime; and when they were, it was for
only a few hours and not the 30 to 40 hours of
overtime that they generally worked. The piece workers
sometimes were unable to earn the minimum wage. None
of the plaintiffs ever received spread-of-hours pay
an extra hour's pay for each ten-hour day.
(Am. Compl. ¶ 17.)
Following a New York State Department of Labor visit to the factory,
defendants began maintaining two sets of books one reflecting
plaintiffs' actual hours worked and "the other a false record reflecting
a workweek with no, or almost no, overtime," and "[p]laintiffs were
required to sign both [time] cards." (Am. Compl. ¶ 37; see also
id. ¶¶ 38-43.)
The Amended Complaint asserts three causes of action: (a) a federal
wage claim for defendants' "failure to pay plaintiffs the minimum wage
and overtime pay for work over 40 hours per week" (Am. Compl. ¶ 53),
(b) a state wage claim for "failure to pay plaintiffs their wages,
minimum wages, and overtime pay for work over 40 hours per week" (Am.
Compl. ¶ 55), and (c) a New York spread of hours claim for "fail[ure]
to pay plaintiffs an extra hour's pay for every day that plaintiffs
worked over 10 hours" in violation of New York Labor Law (Am. Compl.
¶ 57). The Amended Complaint seeks, inter alia, (i) unpaid wages and
liquidated damages pursuant to the FLSA, (ii) unpaid wages including
minimum wage, overtime pay and spread of hours pay, plus
prejudgment interest, under the New York Labor Law, and (iii) attorneys'
fees and costs. (Am. Compl. Wherefore Clause ¶¶ a, b & d.)
EVIDENCE ON THE INQUEST AND ANALYSIS
The Second Circuit has approved the holding of an inquest by
affidavit, without an in-person court hearing, "`as long as [the Court
has] ensured that there was a basis for the damages specified in the
default judgment.'" Transatlantic Marine Claims Agency. Inc. v. Ace
Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. Conti
Commodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).*fn3 Here, using
affidavits was particularly appropriate because plaintiffs are
Chinese-speakers who do not speak English, and the evidence could best be
provided in cumulative chart form. (See Dkt. No. 77: Kimerling 12/12/03
Inquest Aff. Exs. A-B.) The Court has reviewed plaintiffs' affidavits ...