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Belizaire v. RAV Investigative & Sec. Servs. Ltd.

United States District Court, S.D. New York

November 21, 2014


Order Filed: October 16, 2014

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[Copyrighted Material Omitted]

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Sainslot Belizaire, Plaintiff, Pro se, Queens Village, NY.

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J. PAUL OETKEN, United States District Judge.

Defendant RAV Investigative and Security Services, Ltd., has not appeared in this action. A default judgment was entered against it on June 19, 2013. (Dkt. No. 14.) The Court referred the matter to Magistrate Judge Debra Freeman to conduct a damages inquest. (Dkt. No. 13.) Judge Freeman conducted a thorough and careful inquest and issued a Report and Recommendation (the " Report" ) that this Court award damages as specified in the Report and permit the Plaintiff to amend his complaint. (Dkt. No. 29.) The Court has reviewed the Report.

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No party filed a timely objection to the Report; therefore the Court reviews it for clear error. See Fed.R.Civ.P. 72(b), Advisory Committee's Notes (1983) (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." ); see also Borcsok v. Early, 299 F.App'x 76, 77 (2d Cir. 2008). Magistrate Judge Freeman's well-reasoned Report presents no such errors and is therefore fully adopted by this Court.

Accordingly, damages are awarded as calculated in the Report and Belizaire is permitted to amend his complaint to remedy the pleading defects specified in the Report.




This matter is currently before the Court for a damages inquest on a judgment entered in favor of pro se plaintiff Sainslot Belizaire (" Plaintiff" ) against defendant RAV Investigative and Security Services, Ltd. (" Defendant" ), on Plaintiff's employment-related claims. ( See Dkt. 13.) For the reasons that follow, I recommend (1) that Plaintiff be awarded damages calculated as set out below, and (2) as to certain claims that Plaintiff has not supported with sufficient factual allegations to justify a damages award, that he be permitted to amend his Complaint to remedy the pleading defects.


A. Factual Background[1]

Plaintiff commenced this action by filing a Complaint on November 8, 2012, alleging that Defendant had discriminated against him based on his national origin and age, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq.; and the New York State Human Rights Law (" HRL" ), N.Y. Exec. L. § 290 et seq. ( See Dkt. 2.)

According to his Complaint, Plaintiff was hired by Defendant as a security guard on January 14, 2009, and was assigned to a work site at New York University (" NYU" ), where he checked students' identification. (Compl., at 3, 8.[2]) He had excellent attendance and job performance. ( See id.) Plaintiff worked five days per week until approximately August 2011, when his schedule was reduced, without notice, to four days per week. ( Id. at 9.) On the days that he was scheduled, Plaintiff worked an eight-hour shift, with one half-hour break.[3] ( See Tr., at 29-30; see also

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Dkt. 17-1 at 18, 19 (earnings statements showing that Plaintiff worked 37.5 hours per week during pay periods in 2009 and 2010).) Throughout his employment with Defendant, Plaintiff's wage was $8.00 per hour. ( Id.)

Plaintiff claims, however, that Defendant did not pay him in either a timely manner or in the correct amount. ( See Compl., at 3, 8.) In this regard, Plaintiff asserts that, although his salary was to be paid " weekly," Defendant's payroll checks were " regularly delayed two or three weeks apart." (Belizaire Aff., at 1.) Moreover, according to Plaintiff, the payroll checks frequently bounced (Compl., at 8); he asserts that Defendant generally waited about six weeks to replace a bounced payroll check, and that there would frequently be insufficient funds in the company's account to pay the replacement check as well ( see Tr., at 10-12, 16-17). Plaintiff also contends that, while other employees were permitted to take vacation annually, Defendant never permitted him to do so. (Compl., at 3; see also id. at 8 (Plaintiff alleging, in attached administrative complaint, that he " never received a vacation or a day off as everyone else did" ).)

Plaintiff, at 51 years old, was the oldest employee and the only employee of Haitian national origin at his work site. ( Id. at 8-9.) Plaintiff asserts that he never saw another employee treated in the same manner that he was treated. ( Id. at 9.)

In December 2011, when Plaintiff received three paychecks from Defendant that were returned by the bank due to insufficient funds, he reported the issue to the Department of Labor. ( See id. at 9.) On December 30, 2011, he also returned three bounced checks to Defendant and asked to be paid by certified check. ( Id.) Then, on January 2, 2012, operations manager Terry Greenidge called Plaintiff, informed him that he no longer worked at NYU, and directed the police to escort him off the premises. ( See id. at 8-9.) Defendant never called Plaintiff to work at any other site. ( Id. at 9.) Defendant still owed Plaintiff wages at the time of Plaintiff's termination ( see Tr., at 38), but Plaintiff did not receive any wages from Defendant thereafter ( see id. at 39).

B. Procedural History

On January 17, 2012, Plaintiff filed a charge with the New York State Division of Human Rights and, through that agency, with the U.S. Equal Employment Opportunity Commission (" EEOC" ), alleging that Defendant had subjected him to unlawful discrimination in his employment and termination from employment, as a result of his national origin and age, and in retaliation for his filing of a complaint against Defendant with the Department of Labor. ( See Compl., at 8-10.) On September 28, 2012, having " adopted the findings of the state or local fair employment practices agency that investigated this charge," [4] the EEOC informed Plaintiff that it was closing its case file and advised Plaintiff of his right to sue in federal court. ( Id. at 5-7.)

Plaintiff filed his pro se Complaint in this case on November 8, 2012 (Dkt. 2),

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along with a request to proceed in forma pauperis (Dkt. 1), which was granted ( see Dkt. 4). Service was effected on Defendant by the U.S. Marshals Service on April 5, 2013. ( See Dkt. 9.) Defendant's answer to the Complaint was therefore due on April 26, 2013 ( see id.), but, to date, Defendant has neither filed an answer, nor otherwise appeared in this proceeding.

The Clerk of Court entered Defendant's default on May 10, 2013 ( see Dkts. 10, 11), and Plaintiff moved for a default judgment the same day ( see Dkt. 12). On June 14, 2013, the Court (Oetken, J.) directed the entry of a default judgment against Defendant and referred the matter to this Court for an inquest on damages. ( See Dkt. 13.) A default judgment against Defendant was entered on June 19, 2013. ( See Dkt. 14.) On July 26, 2013, Plaintiff wrote to this Court, requesting that the default judgment be " implement[ed]" and that Defendant be ordered to pay damages and interest in the amount of $385,000 ( see Dkt. 15), and this Court then set a schedule for Plaintiff to submit proposed findings of fact and conclusions of law concerning his damages ( see Dkt. 16). In particular, this Court directed Plaintiff to explain how he calculated any damages figures and to support his damages with an affidavit and documentary evidence. ( See id.) The Court also cautioned Defendant that, if it failed to respond to Plaintiff's submission or to contact the Court by October 16, 2013 to request a hearing, this Court intended to issue a report and recommendation on the basis of Plaintiff's written submission alone. ( See id.)

Plaintiff timely submitted an affidavit and supporting documentation, as well as an affirmation of service. ( See Dkts. 17, 18.) Plaintiff's affidavit, however, provided few facts or allegations not contained in the Complaint, and the supporting documents he submitted consisted only of the following:

(a) a copy of a letter from the New York State Department of Labor, dated December 6, 2012, stating that Plaintiff's case had been referred to an investigator ( see Dkt. 17 at 6);

(b) copies of several documents related to Plaintiff's denial of public benefits in February and March of 2012 ( see id. at 7-14);

(c) copies of two notices from Chase Bank, each indicating that a particular check issued from Defendant to Plaintiff was being returned due to insufficient funds ( see id. at 15, 20);

(d) copies of two letters from Plaintiff to Defendant demanding reissuance of paychecks that did not clear due to insufficient funds ( see Dkt. 17-1 at 1, 23-24); and

(e) copies of 10 checks (and what appears to be 42 check stubs, and five backs of checks)[5] apparently issued by Defendant, ranging in amount from $160.08 to $471.30; it appears that three of the checks were returned by a bank without explanation; two others were returned for the explicit reason (as indicated by the code " NSF" ) that the account had insufficient funds to cover the checks; and three others were marked " replacement ck" ( see Dkts. 17, 17-1).

When Defendant's deadline to oppose Plaintiff's submission passed without any opposition having been filed by Defendant, Plaintiff wrote to alert the Court. ( See Dkt. 20.) On December 11, 2013, Plaintiff

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again wrote to the Court, urging that damages be awarded to him, as Defendant " seem[e]d to have deliberately trampled all legal proceedings" related to his case. (Dkt. 21.) On February 28, 2014, in order to obtain clarification of the documents presented by Plaintiff and the basis for his claim for $385,000 in damages, this Court issued an Order scheduling an inquest hearing. ( See Dkt. 23.)

On March 26, 2014, this Court held an inquest hearing, at which Plaintiff testified and submitted additional documentary evidence. ( See Tr.; Dkt. 26.) As Plaintiff did not have the benefit of counsel, the Court attempted to elicit testimony from him that would assist the Court in ascertaining his damages; in this regard, the Court asked Plaintiff questions concerning, inter alia, the frequency with which Defendant had issued bad checks to him ( see Tr., at 6), whether Defendant had ever issued valid replacement checks for those checks that did not initially clear ( see id. at 10, 16-18, 38), which of the copies of paychecks and stubs that he had submitted represented checks that had not cleared ( see id. at 13-14, 54), whether individuals similarly situated to him had received vacation time, sick time, and other benefits that were allegedly denied to him ( see id. at 21-30), and the type of emotional distress that he had suffered (see id. at 57-62).

As Plaintiff's testimony was often vague, and as Plaintiff indicated that he could provide a written submission detailing his calculation of the damages due to him and explaining the significance of the documents already submitted ( see id. at 18-19), this Court afforded Plaintiff an additional opportunity to substantiate his damages. By Order dated April 24, 2014, the Court specifically directed Plaintiff to supplement his written submissions and oral testimony with details about his unpaid wages and benefits, emotional distress, and the back pay he was claiming. ( See Dkt. 27.) Defendant did not appear at the March 26, 2014 hearing, but, as the Court subsequently realized that its Order scheduling that hearing had been mailed to an incorrect address for Defendant, the Court advised Defendant, in its April 24, 2014 Order, that Defendant should notify the Court within three weeks, should it wish to be heard on the appropriate scope of damages.

Plaintiff timely supplemented his prior submissions with new documents, including a letter from a physician (Dkt. 28 at 2), a letter regarding his current employment status ( id. at 3), rent receipts from February 1, 2012 through May 1, 2014 ( id. at 5-12), and emails that appear to be related to his search for employment ( id. at 17-30). In addition, Plaintiff resubmitted documents related to his denial of public benefits. ( See id. at 13-16.) While Plaintiff also included a short spreadsheet purporting to itemize his damages -- with line items for three years of salary (less " late payments received" ); a claimed denial of assistance by the Human Resources Administration (listed as " HRA cash assistance request" ); Plaintiff's supposed rent arrears; his claimed lost Social Security benefits; his claimed lost severance pay, vacation pay, and sick pay; and a figure for " retaliation value" ( see id. at 4) -- Plaintiff did not provide evidence from which the Court could verify most of the figures listed on the spreadsheet, and he did not provide any further explanation or clarification of his prior submissions.

Defendant neither filed an opposition to Plaintiff's supplemental submission, nor otherwise contacted the Court.



A. Default Judgment

Under Rule 55 of the Federal Rules of Civil Procedure, a party defaults

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when it " has failed to plead or otherwise defend" against a judgment for affirmative relief. Fed.R.Civ.P. 55(a). There is no question that " 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), and that " a default judgment entered on well-pleaded allegations in a complaint establishes a defendant's liability," Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 69 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). Thus, as a general matter, a district court must accept as true all of the factual allegations of the non-defaulting party and draw all reasonable inferences in its favor. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).

The court, however, " need not agree that the alleged facts constitute a valid cause of action," Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981), but is instead " required to determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law," Finkel, 577 F.3d at 84.; Taizhou Zhongneng Import and Export Co., Ltd. v. Koutsobinas, 509 F.App'x 54, 56 (2d Cir. 2013) (summary order). Accordingly, a court must consider whether the complaint alleges " enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and find it lacking where the complaint " tenders 'naked assertion[s]' devoid of 'further factual enhancement,'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557); see TAGC Management, LLC v. Lehman, Lee & Xu Ltd., 536 F.App'x 45, 47 (2d Cir. 2013) (on appeal from a grant of default judgment, analyzing the legal sufficiency of the allegations under the standards enunciated in Twombly and Iqbal ). This plausibility standard " is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

In evaluating a pro se complaint, a court is not limited to the causes of action specified by the plaintiff, but instead " must construe it liberally, applying less stringent standards than when a plaintiff is represented by counsel," Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996), and must construe it to raise the strongest claims it suggests, see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (collecting authority). The court is charged with the obligation to " make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Id. (internal quotation marks and citations omitted). Thus, a pro se plaintiff is not required to articulate the appropriate legal theory under which relief may be granted, but instead must only allege sufficient facts to make out an actionable claim. See, e.g., Soto v. Walker, 44 F.3d 169, 170 (2d Cir. 1995) (finding that district court erred by interpreting pro se complaint as based solely on the theory of relief raised most directly by plaintiff's allegations, where " the facts [plaintiff] alleged clearly describe an actionable due process violation," and reversing dismissal of complaint); see also Bey v. Welsbach Elec. Corp., No. 01cv2667 (LAP), 2001 WL 863419, at *1 (S.D.N.Y. July 30, 2001) (construing pro se complaint to include additional cause of action, separate from the legal grounds for relief that plaintiff had articulated, where plaintiff had set forth facts that could give rise to the additional claim).

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In employing this liberal standard, however, a court must still ensure that the pro se complaint " give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80)).

B. Damages

In conducting an inquest on default, a court accepts as true all of the factual allegations of the complaint, except those relating to damages. Au Bon Pain Corp., 653 F.2d at 65. A plaintiff must therefore substantiate a claim with evidence to prove the extent of damages. See Trehan v. Von Tarkanyi, 63 B.R. 1001, 1008 n.12 (S.D.N.Y. 1986) (plaintiff must introduce evidence to prove damages suffered and the court will then determine whether the relief flows from the facts (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974))). If a plaintiff fails to demonstrate its damages to a reasonable certainty, then the court should decline to award any damages, even where liability has been established through default. See Lenard v. Design Studio, 889 F.Supp.2d 518, 538 (S.D.N.Y. 2012); Griffiths v. Francillon, No. 10cv3101 (JFB) (GRB), 2012 WL 1341077, at *2 (E.D.N.Y. Jan. 30, 2012), report and recommendation adopted, 2012 WL 1354481, at *2 (Apr. 13, 2012).

Where a defaulting defendant has not made any submission on a damages inquest, the court must assess whether the plaintiff has provided a sufficient basis to determine damages, see Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (the court " should take the necessary steps to establish damages with reasonable certainty" ), and may determine the adequacy of the plaintiff's damages claim based on the plaintiff's submitted proofs, see, e.g., Garden City Boxing Club, Inc. v. Hernandez, No. 04cv2081 (LAP) (DF), 2008 WL 4974583, at *4-5 (S.D.N.Y. Nov. 24, 2008). In its discretion, the court may also hold a hearing to assess the amount of damages that should be awarded on a default. See Fed.R.Civ.P. 55(b)(2); see also Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (judges are given much discretion to determine whether an inquest need be held); Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (Fed. R. Civ. P. 55(b)(2) " allows but does not require . . . a hearing" ); Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989) (" [b]y its terms, [Rule] 55(b)(2) leaves the decision of whether a hearing is necessary to the discretion of the district court" ).

Regardless of the submitted proofs or testimony, though, damages awarded upon a defendant's default " must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c). While the Second Circuit has not specifically addressed what might constitute damages that " differ in kind," courts in this jurisdiction have interpreted the Rule 54(c) requirement to turn on defendant's receipt of adequate notice of the scope of damages. See, e.g., Gucci Am. v. Gold Ctr. Jewelry, 997 F.Supp. 399, 404 (S.D.N.Y. 1998) (" The rationale for the rule, insofar as it applies to default judgments, 'is that default is tantamount to consent to the entry of judgment, but this consent is effective only to the extent that it was duly informed.'" (quoting 10 Moore's Federal Practice § 54.71, at 54-127 (3d ed. 1997))); Capgemini U.S., LLC v. EC Manage, Inc., No. 10cv2486 (GBD) (HPD), 2012 WL 5931837, at *6

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(S.D.N.Y. Nov. 7, 2012) (where ad damnum clause requested $1,000,000 " plus interest," " the Complaint put the defendants on notice that they could be liable for an amount in excess of $1,000,000 once interest was computed," and therefore interest award would not violate Rule 54(c)), report and recommendation adopted, 2012 WL 5938590 (Nov. 27, 2012).

Thus, courts have strictly construed the damages provisions of complaints awarding damages on default. See, e.g., Marina B Creation S.A. v. de Maurier, 685 F.Supp. 910, 912-13 (S.D.N.Y. 1988) (declining to award treble damages requested in memorandum of law where such damages were not specified in either complaint or notice of motion for default); Jowers v. DME Interactive Holdings, Inc., No. 00cv4753 (LTS) (KNF), 2006 WL 1408671, at *9 (S.D.N.Y. May 22, 2006) (declining to award statutory liquidated damages where " the complaint did not give notice that [plaintiff] was seeking liquidated damages by making a citation to the applicable provisions of New York's Labor Law" ); New York City Dist. Council of Carpenters Pension Fund v. Quantum Const., No. 06cv13150 (GEL) (JCF), 2008 WL 5159777, at *4, *11 (S.D.N.Y. Dec. 9, 2008) (" damages should be limited to the time period set forth in the [c]omplaint" ). As discussed in greater detail in Section III, infra, however, such strict construction may not be appropriate in the case of a pro se plaintiff. See Poliard v. Saintilus Day Care Ctr., Inc., No. 11cv5174 (MKB) (LB), 2013 WL 1346238, at *5 n.9 (E.D.N.Y. Mar. 7, 2013) (" Although the 'Wherefore' clause does not explicitly state that plaintiff seeks prejudgment interest, in light of plaintiff's pro se status and her reliance on a form complaint distributed by the Clerk's Office, this Court liberally construes plaintiff's complaint to include a request for pre-judgment interest here." ), report and recommendation adopted, 2013 WL 1346398 (Apr. 2, 2013).


Without a response from Defendant, this Court must first determine whether, with respect to each element of his claims, Plaintiff's allegations in the Complaint are sufficiently " well pleaded" to establish Defendant's liability. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 854 (2d Cir. 1995). Only if the allegations are sufficient to state a claim, should the Court then proceed to determine the appropriate amount of damages to be awarded. In conducting this analysis, this Court is mindful that it must construe Plaintiff's submissions liberally, as he is acting pro se, see Triestman, ...

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