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Jemine v. Dennis

United States District Court, E.D. New York

September 28, 2012

Corey JEMINE, et al., Plaintiffs,
v.
Raven P.D. DENNIS, III, individually and d/b/a Cake Man Raven Confectionary, Cake Man Raven, Inc. d/b/a Cake Man Raven Confectionary and Cakeville USA Corp., Defendants.

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Bruce E. Menken, Jennifer Lea Smith, Beranbaum Menken Ben-Asher & Bierman, New York, NY, for Plaintiffs.

Gregory R. Preston, Preston Wilkins & Martin, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

On July 28, 2008, plaintiff employees commenced this against their employer, Raven P.D. Dennis, III, individually and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, Cake Man Raven Inc., f/k/a and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, and Cakeville USA Corp. (collectively, " defendants" ), pursuant to the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., and New York Labor Law (" NYLL" or " Labor Law" ). (Compl. (Doc. No. 1); Amended Compl. (Doc. No. 37).) On August 27, 2010, 2010 WL 3420550, the Court entered default against all defendants as to liability, based on defendants' repeated failure to adequately participate in the case.[1] (Order Adopting Report and Recommendation (Doc. No. 47).) The Court thereafter referred the case to Magistrate Judge Marilyn D. Go for a report and recommendation as to damages. ( Id.; Order dated Nov. 12, 2010.)

On October 14, 2010, plaintiffs filed a motion for damages with a memorandum of law and supporting affidavits and exhibits. (Doc. No. 52.) Defendants filed a response to plaintiff's motion on December 28, 2010, but did not provide any evidentiary support. (Doc. No. 60.) Plaintiff's filed a reply on January 4, 2011. (Doc. No. 61.) Magistrate Judge Go held oral argument on September 30, 2011, which was attended

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by counsel for both plaintiffs and defendants. ( See Minute Entry for Proceedings held 9/30/2011.) On September 11, 2012, Judge Go issued a report and recommendation (" the R & R" ). (Doc. No. 65.)

Judge Go recommends that plaintiffs [2] be awarded damages of $316, 862.91 against the defendants as follows: (1) damages for unpaid wages, overtime pay and liquidated damages under the FLSA and the New York Labor Law in the total amount of $225,277.06; (2) prejudgment interest of $36,798.85 to plaintiffs and at the rate of $16.35 per day fro October 1, 2012 until entry of judgment; (3) attorneys' fees of $53,375.75; and (4) costs of $1,411.25. (R & R at 394.) Judge Go breaks out the awards by plaintiff in Appendix A to the R & R. (Doc. No. 65-1.) Objections to the R & R were due on or before September 28, 2012, and defendants timely filed objections to the R & R on that day. (Doc. No. 66.)

When reviewing an R & R, a district court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). When a party objects to an R & R, " the court is required to conduct a de novo review of the contested sections." Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). However, where objections consist of " conclusory or general arguments, or simply reiterate[ ] the original arguments," or are merely an " attempt to engage the district court in rehashing of the same arguments set forth in the original petition," the Court reviews for clear error. DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y.2009).

The objections filed here are not only reiterate the arguments made by defendants before the magistrate judge in opposition to the motion for default judgment and damages, they are identical— word for word, and even including the errors in numbering the relevant paragraphs. Compare Def. Objections to the R & R (Doc. No. 66) with Def. Response to Motion for Damages (Doc. No. 60). Indeed, it appears that defendants merely uploaded as objections the very document they submitted to the magistrate judge in opposition to plaintiffs' motion. As such, the Court reviews the R & R for clear error, and finding none other than with respect to a mathematical calculation,[3] adopts the R & R in its entirety.

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CONCLUSION

Accordingly, it is hereby ORDERED that plaintiff's motion for default judgment and damages (Doc. No. 42) is GRANTED. Judgment shall enter against Raven P.D. Dennis, III, individually and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, Cake Man Raven Inc., f/k/a and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, and Cakeville USA Corp. in total amounts as follows: (1) damages for unpaid wages, overtime pay and liquidated damages under the FLSA and the New York Labor Law in the total amount of $225,731.99; (2) prejudgment interest of $37,454.41 to plaintiffs and at the rate of $16.69 per day from October 1, 2012 until entry of judgment; (3) attorneys' fees of $53,375.75; and (4) costs of $1,411.25. The total award shall be broken down in favor of each plaintiff as reflected in Appendix A to the magistrate judge's R & R (Doc. No. 65-1) as modified herein.

The Clerk of Court is directed to enter judgment accordingly. As this Order disposes of all parties and claims, the Clerk of Court is directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

MARILYN D. GO, United States Magistrate Judge.

Plaintiffs commenced this action on July 28, 2008 against defendants RAVEN P.D. DENNIS, III, individually and d/b/a CAKE MAN RAVEN CONFECTIONERY and CAKE MAN RAVEN INC., f/k/a and d/b/a/ CAKE MAN RAVEN CONFECTIONERY and CAKE MAN CONFECTIONERY, and CAKEVILLE USA CORP. alleging violations under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., asserting claims under the New York Labor Law (" NYLL" or " Labor Law" ). As a result of the defendants' failure to prosecute by not communicating with both counsel and the Court, the Honorable Roslynn R. Mauskopf entered default against all defendants as to liability and referred the case to me for a report and recommendation on the appropriate damages. See Order dated August 27, 2010 (ct. doc. 47).

After review of submissions from both the plaintiffs [1] and defendants and consideration of their arguments at a hearing held, I respectfully recommend that the Court award plaintiffs damages as set forth more fully below.

FACTUAL BACKGROUND

The following facts are based on the uncontested allegations in the plaintiffs' amended complaint and declarations of plaintiffs which will be discussed in detail below. Defendant Dennis is the founder and owner of a bakery business known as " Cake Man Raven Confectionary" and the owner and majority shareholder of corporate defendant Cake Man Raven, Inc. and Cakeville U.S.A. Amended Complaint (" Am. Compl." ) at ¶¶ 11-12. Defendants operate a bakery in Brooklyn, New York, selling ornate and specialty cakes, and thus engage in the production of goods for commerce. Id. ¶¶ 13, 25. Defendants employed plaintiffs to perform various bakery-related tasks, including " taking orders, baking and icing cakes, cleaning up, [and]

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transporting baked goods within the City of New York." Id. ¶ 14. While employed by defendants, plaintiffs often worked in excess of forty hours per week, but were either paid their regular wage rate or not at all for the overtime hours. Id. ¶ 17.

Plaintiffs have each submitted a signed and sworn declaration in support of their motion for default judgment and have supplemented their declarations with time sheets, payroll records and punch cards to the extent they were produced by defendants in discovery. However, the records are incomplete. In their respective declarations, plaintiffs describe the number of hours they regularly worked per week, the salary or hourly rate they were promised by defendants, and the amount they actually received from defendants. Id. Plaintiffs seek unpaid wages, liquidated damages, prejudgment interest, and attorneys' fees and costs. They calculate damages based on their recollections and the limited documentary evidence that is available. Decl. of Jennifer Smith dated October 14, 2010 (" 10/14/10 Smith Decl." ) (ct. doc. 54) ¶ 5. After entry of default, defendants appeared through counsel to contest plaintiffs' allegations, making legal arguments through counsel's affidavit but not submitting any documentary evidence. I respectfully recommend that judgment be entered against defendants in the amounts described in detail below.

DISCUSSION

I. Governing Legal Standards

In deciding whether a default judgment should be entered following entry of default, a court may accept all well-pleaded allegations in the unanswered complaint as true but must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981) ( " [A] district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action." ) It is for the court to " consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law." Leider v. Ralfe, 2004 WL 1773330, at *7 (S.D.N.Y.2004) (quoting In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y.2000)).

A defendant's default also does not constitute an admission of allegations pertaining to the amount of damages. See Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6 (2d Cir.2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992)). A default merely establishes that damages were proximately caused by the defaulting party's conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. See Greyhound, 973 F.2d at 159. The movant need prove " only that the compensation sought relate[s] to the damages that naturally flow from the injuries pleaded." Id. If the facts are sufficient to establish liability as to the asserted claims, the court must then conduct an inquiry to determine the amount of damages to a " reasonable certainty." Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir.1999) (quoting Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.1997)). The moving party is entitled to all reasonable inferences from the evidence it offers. See Romanowicz, 577 F.3d at 84; Au Bon Pain, 653 F.2d at 65 (citing TWA, Inc. v. Hughes, 308 F.Supp. 679, 683 (S.D.N.Y.1969)). In determining the amount of damages, the court may require an evidentiary hearing or rely on detailed

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affidavits or documentary evidence. See Chun Jie Yin v. Kim, 2008 WL 906736, at *2 (E.D.N.Y.2008) (collecting cases); Fed.R.Civ.P. 55(b)(2).

II. Liability

A. Fair Labor Standards Act

Congress enacted the FLSA in an effort to " protect all covered workers from substandard wages and oppressive working hours, ‘ labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency and general well-being of workers.’ " Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (quoting 29 U.S.C. § 202(a) (footnote omitted)). The remedial statute applies to all " employers," which Congress defines broadly to include " any person acting directly or indirectly in the interest of an employer in relation to the employee." 29 U.S.C. § 203(d). To claim FLSA coverage, an employee must demonstrate either that he was " engaged in commerce or in the production of goods for commerce," or that his employer was " an enterprise engaged in commerce or in the production of goods for commerce." Id. §§ 206(a), 207(a)(1). Employees seeking damages for wage and overtime violations of the FLSA must raise claims within two years of a non-willful violation, or within three years of a willful violation. See id. § 255(a).

Plaintiffs bring this action pursuant to Section 207 of the FLSA, which requires an employer to pay any employee who works in excess of forty hours during a workweek a premium for the overtime hours " at a rate not less than one and one-half times the regular rate at which he is employed." Id. § 207(a)(1). Employers who violate this provision " shall be liable to the employee or employees affected in the amount of ... their unpaid overtime compensation ... and in an additional equal amount as liquidated damages." Id. § 216(b). The fact that an employer pays wages above the statutory minimum set by Congress is not a defense to an employer's non-payment of overtime compensation. See Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 42, 65 S.Ct. 11, 89 L.Ed. 29 (1944).

In addition, plaintiffs allege that defendants failed to comply with Section 211(c) of the FLSA, which requires non-exempt employers to " make, keep and preserve ... records" of their employees with respect to " wages, hours, and other conditions and practices of employment" for a certain period of time. 29 U.S.C. § 211(c). A detailed description of the record-keeping requirements are set forth in 29 C.F.R. § 516.2(a)(1)-(12). Pursuant to Section 215(a)(5) of the FLSA, it is unlawful for an employer to violate any of these record-keeping provisions. See 29 U.S.C. § 215(a)(5).

Plaintiffs allege in their complaint: (1) that they " worked for Defendants taking orders, baking and icing cakes, cleaning up, transporting baked goods within the City of New York and other tasks related to bakery work; " (2) that defendants were " enterprises engaged in commerce and/or the production of goods for commerce; " (3) that plaintiffs were also " engaged in commerce and/or the production of goods for commerce; " (4) that defendants failed to " pay [plaintiffs'] wages due and owing for work performed; " (5) that plaintiffs " typically worked in excess of forty hours per week; " (6) that plaintiffs were " either paid the same rate of pay for each and every hour he or she worked ... in excess of forty hours per week, or were not paid at all for hour[s] worked in excess of forty hours per week; " (7) that plaintiffs are " not exempt from receiving overtime

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pay under the FLSA; " (8) that defendants " were aware that [p]laintiffs typically worked in excess of forty hours per week; " and (9) that defendants " willfully failed to pay [p]laintiffs overtime compensation ...." See Am. Compl. ¶¶ 14-15, 17-18, 25-26, 33. Plaintiffs also allege that defendants " failed to keep appropriate and accurate payroll and time records as required by federal law." Id. ¶ 27.

Plaintiffs state in their respective declarations that they often worked more than forty hours per week without overtime compensation. E.g., Declaration of Asgar Muhammad (" Muhammad Decl." ) (ct. doc. 54-3) ¶¶ 5-6; Decl. of Jose Rivera (" Rivera Decl." ) (ct. doc. 54-9) ¶¶ 5-6. According to plaintiffs, defendant Dennis also admitted that he paid employees who worked more than forty hours a week at their regular wage rate for the overtime hours. Declaration of Jennifer Smith dated January 4, 2011 (" 1/4/11 Smith Decl." ) (ct. doc. 61) at ¶ 26 (quoting Deposition of Raven P.D. Dennis 94:18-22, 95:6-9, June 8, 2009 [2]). This Court finds that the undisputed allegations in the complaint and the default submissions form a sufficient basis for establishing defendants' liability under the FLSA for violations of the overtime provisions and record-keeping requirements.

B. New York Labor Law

The New York Labor Law mirrors the FLSA in most aspects, including its wage and overtime compensation provisions. Like the FLSA, the Labor Law requires that employers provide time-and-a-half compensation for their employees' work hours exceeding forty per week, and adopts the same methods used by the FLSA for calculating overtime wages. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (2011). The Labor Law also requires that employers establish and maintain complete and accurate records for their employees who fall under the Labor Law's wage protections. See N.Y. Lab. Law §§ 195, 661; N.Y. Comp. Codes R. & Regs. tit. 12, § 138-3.1 (specifying content of employer's records).

Unlike the FLSA, the NYLL imposes a longer statute of limitations for bringing claims: whereas aggrieved employees must bring claims within two to three years under the FLSA depending on whether the violation was willful, employees have six years after the alleged violation to raise claims under the NYLL. 29 U.S.C. § 255(a); N.Y. Lab. Law § 663(1), (3). New York state also " does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of annual sales." Chun Jie Yin, 2008 WL 906736, at *10. The New York Labor Law also expressly provides that employees are entitled to recover all unpaid wages. N.Y. Labor Law § 198(3); Chun Jie Yin, 2008 WL 906736, at *6; Jowers v. DME Interactive Holdings, Inc., 2006 WL 1408671, at *9 (S.D.N.Y.2006).

Section 663 of the Labor Law expressly authorizes an employee to sue his or her employer to recover unpaid wages otherwise due to him or her under the statute. N.Y. Lab. Law § 663(1). Applying the same reasoning used in the FLSA analysis to the state claims, this Court finds that the undisputed allegations in the complaint and default submissions are sufficient to impose liability on defendants under the NYLL overtime and record-keeping provisions.

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See Debejian v. Atl. Testing Labs., Ltd., 64 F.Supp.2d 85, 87 n. 1 (N.D.N.Y.1999) (finding New York Labor Law provisions " substantially similar to the federal scheme" such that its analysis of federal law would apply equally to claims brought under the FLSA and New York law).

III. Damages

A. Recoverable Damages

Plaintiffs who successfully claim violations of section 207 of the FLSA are entitled to " their unpaid overtime compensation" and " an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). If the violation is deemed to be " willful," plaintiffs are further entitled to liquidated damages under New York Labor Law in the amount of " ...


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