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Luis Alberto Rodriguez v. Queens Convenience Deli Corp. and Salem

October 18, 2011

LUIS ALBERTO RODRIGUEZ PLAINTIFF,
v.
QUEENS CONVENIENCE DELI CORP. AND SALEM ALI, JOINTLY AND SEVERALLY, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge

MEMORANDUM & ORDER

On March 16, 2009, plaintiff commenced this action, alleging that defendants violated the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (the "FLSA") and New York Labor Law, Art. 6, §§ 190 et seq., and Art. 19 §§ 650 et seq. (collectively "N.Y.L.L."). Defendants have not appeared or answered plaintiff's complaint. For the reasons set forth below, plaintiff's motion for entry of a default judgment in the amount of $49,840.89 against defendant Queens Convenience Deli Corp. is granted, but because no allegations or showing has been made to award damages against defendant Salem Ali, jointly and severally, the court orders judgment in the amount of $0 against defendant Ali.

Background

A. Facts

The following facts are taken from plaintiff's complaint and affidavit and are undisputed. (ECF No. 1, Complaint, filed March 16, 2009 ("Compl."); ECF No. 10, Motion for Entry of Default, filed April 12, 2011 ("Pl. Mot."); ECF No. 12, Affidavit of Plaintiff in Support of Plaintiff's Motion for Default Judgment, filed April 12, 2011 ("Pl. Aff.").) Plaintiff Luis Alberto Rodriquez ("plaintiff") was an employee of Queens Convenience Deli Corp. ("Queens Convenience"),*fn1 from approximately June 12, 2006 to October 20, 2006, and again from approximately March 5, 2007 to November 19, 2008. (Compl. at ¶¶ 10-11.) Plaintiff was employed as a stockperson and worked seven days a week from 6:00 p.m. to 6:00 a.m. for a total of approximately eighty-four hours per week. (Id. at ¶¶ 8, 12.) Plaintiff was paid a flat rate of $500 per week. (Id. at ¶ 13.) Plaintiff was never compensated for working more than forty hours per week or for working more than ten hours per day. (Id. at ¶¶ 33-34.)

On March 16, 2009, plaintiff filed the instant complaint against defendants under the FLSA and NYLL for unpaid minimum wages, unpaid overtime wages, unpaid spread of hours compensation and liquidated damages. (See generally Compl.) Defendants were served with a summons and a copy of the complaint on March 26, 2009. (ECF Nos. 3, 4, Affidavits of Service, filed March 31, 2009.) Defendants failed to answer the complaint or otherwise appear. (Pl. Aff. at ¶ 4.) Plaintiff moved for entry of default (ECF No. 7, Motion for Entry of Default Judgment, filed November 6, 2009), and the Clerk of the Court entered a notation of default on December 2, 2009 (ECF No. 8, Clerk's Entry of Default, dated December 2, 2009.) Plaintiff now moves for entry of a default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) and Local Rule 55.2(b). (See generally Pl. Mot.) Plaintiff requests $67,311.55 in damages. (Pl. Mot. at ¶ 7.)

Legal Standard

A. Default Judgment

"[A] default is an admission of all well-pleaded allegations against the defaulting party." Vermont Teddy Bear Co., Inc. v.1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (citation omitted). After liability is determined, damages must be established to a "reasonable certainty." Duro v. BZR Piping & Heating, Inc., No. 10-CV-0879, 2011 U.S. Dist. LEXIS 17151, at *4 (E.D.N.Y. Jan. 26, 2011) (quoting Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997)). The court need not hold a hearing to determine damages "as long as it [has] ensured that there [is] a basis for damages specified in the default judgment." Id. When evaluating damages, the court "may rely on affidavits or documentary evidence. . . ." Id. (citing Tamarin v. Adam Caterers, Inc. 13 F.3d 51, 54 (2d. Cir. 1993)); see also Chun Jie Yin v. Kim, No. 07-CV-1236, 2008 U.S. Dist. LEXIS 118533, at *2 (E.D.N.Y. Apr. 1, 2008)).

B. Fair Labor Standards Act

The FLSA was enacted "to eliminate 'labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.'" Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101, 104 (2d Cir. 2010) (quoting 29 U.S.C. § 202(a)). "The statute of limitations for an FLSA claim is two years, unless the violation is 'willful,' in which case it is three years." Kuebel v. Black & Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011) (citing 29 U.S.C. § 255(a)). When a defendant defaults, the violation is considered "willful" and the three year statute of limitations applies. Blue v. Finest Guard Servs., Inc., No. 09 CV 133, 2010 U.S. Dist. LEXIS 73223, at *33 (E.D.N.Y. June 24, 2010). The statute of limitations starts to run when the employee begins to work for the employer. See Wicaksono v. XYZ 48 Corp, No. 10 Civ. 3635, 2011 U.S. Dist. LEXIS 55771, at *8-9 (S.D.N.Y. May 2, 2011), adopted by 2011 U.S. Dist. LEXIS 55734 (S.D.N.Y. May 24, 2011).

In the present case, defendants defaulted, and therefore the three-year statute of limitations applies. Plaintiff began working on approximately June 12, 2006 and filed his complaint on March 16, 2009. As such, plaintiff's FLSA claim is timely.

C. New York Labor Law

An employee is entitled to relief under New York law if he or she "is paid by his or her employer less than the wage to which he or she is entitled under the provisions" of the article. N.Y.L.L. § 663(1). The statute of limitations for an NYLL claim is six years, id. § 663(3), and it begins to run when the employee begins to work for the employer. ...


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