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Tacuri v. Nithun Constr. Co.

United States District Court, E.D. New York

January 21, 2015

LUIS TACURI, on behalf of himself and all other persons similarly situated, et al., Plaintiffs,
v.
NITHUN CONSTRUCTION COMPANY, ET AL., Defendants

For Luis Tacuri, Timoteo Castaneda, on behalf of themselves and all other persons similarly situated, Plaintiffs: David Stein, Samuel & Stein, New York, NY.

Ramon E. Reyes, Jr., United States Magistrate Judge. Honorable Carol B. Amon, Chief United States District Judge.

REPORT AND RECOMMENDATION

Ramon E. Reyes, Jr. U.S. Magistrate Judge

Plaintiffs Luis Tacuri (" Tacuri") and Timoteo Castaneda (" Castaneda"), (collectively, " Plaintiffs") brought this action against Nithun Construction Company (" Nithun") and Nurul Amin (" Amin") (collectively, " Defendants") to recover unpaid wages, overtime compensation, and related damages under the Wage Theft Prevention Act, Fair Labor Standards Act of 1938 (" FLSA"), 29 U.S.C. § § 207, 216, New York Labor Law (" NYLL") § § 191, 195, 198, 663, and New York Codes, Rules and Regulations (" NYCCR") title 12, § 142-2.2.[1] ( See generally Dkt. No. 1 (" Compl.").)

For the reasons stated herein, I respectfully recommend that Plaintiffs' motion be granted and default judgment be entered against Defendants in the amount of $59, 097.43. Out of this amount, I respectfully recommend that Tacuri be awarded $18, 415.52, comprising of $680.00 in unpaid wages, $6027.76 in unpaid overtime compensation, $5000.00 for Wage Theft Prevention Act violations, and $6707.76 in liquidated damages, and. Castaneda be awarded $35, 718.41 in damages, comprising of $200.00 in unpaid wages, $19, 290.66 in unpaid overtime compensation, $5000.00 in Wage Theft Prevention Act damages, and $11, 227.75 in liquidated damages. Additionally, I respectfully recommend an award of post-judgment interest, $4563.50 in attorney's fees, and $400.00 in costs.

BACKGROUND[2]

Nithun is a construction company with its principal place of business in Brooklyn, New York. (Compl. ¶ 6.) Amin is an owner or part owner of Nithun. (Id. ¶ 11.) Plaintiffs were employed as laborers by Defendants. (Id. ¶ 23.) Their workday was typically from 8:00 a.m. to 4:00 p.m. (Id. ¶ 26.) Plaintiffs worked six days a week. (Id.)

Tacuri worked for Defendants from approximately May 2012 through April 24, 2014. (Id. ¶ 21.) He worked approximately forty-eight hours per week. (Id. ¶ 27.) He was initially paid $130.00 per day, which was increased to $140.00 per day in November 2013. (Id. ¶ 30.)

Castaneda worked for Defendants from 2002 until January 2014. (Id. ¶ 22.) He frequently worked between thirty and sixty extra minutes a day after his regular shift. (Id. ¶ 26.) Castaneda frequently worked approximately fifty hours per week. (Id. ¶ 27.) His starting pay was $90.00 per day, which was occasionally increased by $10.00 per day, and eventually to $160.00 per day until the end of his employment. (Id. ¶ 31.)

Plaintiffs were not paid on time. (Id. ¶ 35.) At the time of the end of Tacuri's employment he was owed $1680.00 in back wages. (Id. ¶ 36.) Castaneda was owed $200.00 at the end of his employment. (Id. ¶ 37.)

Defendants did not pay Plaintiffs an overtime premium. (Id. ¶ 28.) Defendants never gave Plaintiffs documentation to show their pay rate, designated pay day, or pay method. (Id. ¶ 32.) They also never provided Plaintiffs with weekly notices of their pay rates or hours worked. (Id. ¶ 39.) Additionally, Defendants did not supply them with a time clock, time card, sign-in sheet, or any other way to record the time they worked. (Id. ¶ 34.)

PROCEDURAL HISTORY

Plaintiffs initiated this action against Defendants on May 8, 2014. (Dkt. Entry Dated 5/8/2014.) On June 27, 2014 Plaintiffs requested a Certificate of Default for Defendants. (Dkt. No. 6.) The Clerk of the Court entered default on June 30, 2014. (Dkt. Entry Dated 6/30/2014) On July 15, 2014, Plaintiffs filed this instant motion for default judgment. (Dkt. No. 7.) Your Honor subsequently referred Plaintiffs' motion to me for a report and recommendation. (Dkt. Entry Dated 7/15/2014.)

DISCUSSION

I. Liability

As an initial matter, this Court must determine whether Plaintiffs have adequately pleaded the requirements of liability under the FLSA and the NYLL. Upon entry of default, defendants concede all well-pleaded factual allegations of liability, except those related to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (citations omitted).

A. FLSA

In order to make a prima facie showing of a violation of the overtime provision of the FLSA, first Plaintiffs must adequately allege that they were employees covered under the FLSA. The FLSA defines an employee to mean " any individual employed by an employer." 29 U.S.C. § 203(e)(1) An employer, as defined by the FLSA, is " any person acting directly or indirectly in the interest of an employer in relation to an employee . . . ." Id. § 203(d). Plaintiffs allege that at all relevant times, Defendants were employers within the meaning of the FLSA, 29 U.S.C. § 203(d). ( See Compl. ¶ 13.) Plaintiffs further allege that they were employed by Defendants (Compl. ¶ ¶ 21, 22.) Therefore, Plaintiffs have adequately alleged that they were employees within the definition of the FLSA.

Under the FLSA, employers have an obligation to pay overtime wages to employees who are " engaged in commerce or in the production of goods for commerce" or who are " employed in an enterprise engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 207(a)(1). A defendant is such an enterprise if it (1) has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (2) whose annual gross volume of sales made or business done is not less than $500, 000.00. 29 U.S.C. § 203(s)(1)(A).

Plaintiffs allege that Nithun was engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA. (Compl. ¶ 7.) Additionally, Plaintiffs allege that the Nithun had an annual gross revenue in excess of $500, 000.00 (Id. ¶ 9.) Therefore, Nithun qualifies as an employer with an obligation to pay overtime wages under the FLSA

Section 207(a)(1) of the FLSA requires employers to pay " not less than one and one-half times the regular rate" for hours worked in excess of forty. Plaintiffs allege that they worked more than forty hours per week and were not paid time-and-a-half for those overtime hours. (Compl. ¶ ¶ 27-28.) Plaintiffs have sufficiently pleaded that Defendants violated 29 U.S.C. § 207.

B. NYLL

The NYLL defines an employee as " any individual employed or permitted to work by an employer in any occupation." N.Y. Lab. Law § 651(5). Additionally, the NYLL defines an employer as " any individual, . . . corporation, . . . or any organized group of persons acting as employer." N.Y.Lab. Law § 651(6). Plaintiffs sufficiently allege that at all relevant times Defendants were employers and they were employees within the meaning of the NYLL (Compl. ¶ ¶ 11-13, 21-24.)

1. Overtime Compensation

The NYLL's overtime provision specifies that eight hours constitutes a " legal day's work." N.Y. Lab. Law § 160(3). Additionally, " [a]n employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate . . . ." N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. The applicable overtime rate for each workweek will be applied for working time over forty hours per week. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2.

Plaintiffs sufficiently allege that they worked over forty hours per week throughout the duration of their employment. (Compl. ¶ 27.) They further allege that they were not compensated with overtime premiums, but rather just paid their regular day rate. (Id. ¶ ¶ 28-29.) Therefore, Plaintiffs have sufficiently pleaded that Defendants violated New York's overtime provision.

2. Unpaid Wages

The NYLL provides that manual workers " shall be paid weekly and not later than seven calendar days after the end of the week in which the wages are earned." N.Y. Lab.Law § 191(1). Plaintiffs allege that Defendants regularly fell behind in paying Plaintiffs and would have to " make up" for the unpaid wages in subsequent weeks. (Compl. ¶ 36.) At the time Plaintiffs ended their employment with Defendants, each was owed money in back wages. (Id. ¶ ¶ 36-37.) Thus, Plaintiffs have sufficiently pleaded that Defendants violated the NYLL with respect to unpaid wages.

3. Wage Theft Prevention Act

The NYLL also requires that " every employer shall provide their employees, at the time of hiring, and on or before February first of each subsequent year of the employee's employment with the employer a notice containing information about rates of pay." N.Y. Lab.Law§ 195(1)(a). Additionally, the NYLL states that all employers must " furnish each employee with a statement with every payment of wages . . ." N.Y. Lab. Law § 195(3).

Plaintiffs allege that Defendants never provided them with annual written notice of their regular rate of pay or overtime rate of pay. (Compl. ¶ 38.) Additionally, Plaintiffs allege that Defendants never provided them with notices of their rate of pay or their hours worked when they were paid. (Id. ¶ 39.) Plaintiffs have sufficiently pleaded violations of the Wage Theft Prevention Act.

C. Joint and Several Liability

Persons under the FLSA include individuals and corporations. 29 U.S.C. § 203(a). Plaintiffs seek to have Amin, the individual Defendant, held jointly and severally liable with Nithun, the corporate Defendant, because each Defendant can be considered an " employer" under both the FLSA and the NYLL.[3]

To be held liable under the FLSA, a person must be an " employer, " which § 3(d) of the statute defines broadly as " any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d) (1994). The Supreme Court has emphasized the " expansiveness" of the FLSA's definition of employer. Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973). Above and beyond the plain language, moreover, the remedial nature of the statute further warrants an expansive interpretation of its provisions so that they will have " the widest possible impact in the national economy." Carter v. Dutchess Community College, 735 F.2d 8, 12 (2d Cir. 1984).

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999).

In order to determine whether the alleged employer possessed the power to control a worker, the " economic reality" test is employed. This test examines factors, including: " whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records." Carter, 735 F.2d at 12 (quoting Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983) (internal quotation marks omitted)). None of these factors alone are dispositive. See Brock v. Superior Care, 840 F.2d 1054, 1059 (2d Cir. 1988). Here, Plaintiffs allege that Amin was the owner or part owner and principal of Nithun (compl. ¶ 11), was involved in the day-to-day operations of Nithun ( id. ¶ 12), and played a role in managing the business ( id.). Additionally, Plaintiffs allege that Amin had the " power to hire and fire employees, set wages and schedules, and retain records." (Id. ¶ 11.) Such allegations, coupled with Defendants' default, suffice to establish that Amin qualifies as Plaintiffs' " employer" under the FLSA and NYLL, and, consequently, imposes joint and several liability on him with Nithun. See Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 128-29 (E.D.N.Y. 2011) (holding allegations that individual had authority over personnel and payroll decisions and authority to hire and fire employees adequate to impose joint and several liability); Ting Yao Lin v. Hayashi Ya II, Inc., 08-CV-6071 (SAS) (AJP), 2009 WL 289653 (S.D.N.Y. Jan. 30) (imposing joint and several liability pursuant to both FLSA and NYLL), adopted by, 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009).

II. Damages

Having proven liability by virtue of Defendants' default, Plaintiffs' claims for damages must be established so that the court may ensure that there is a proper basis to enter judgment in the amount demanded. See Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d. Cir. 1989). A court may make a determination of damages based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence. See Fed.R.Civ.P. 55(b)(2); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d. Cir. 1991) (citations omitted); Fustok, 873 F.2d at 40.

Because both the FLSA and NYLL are compensatory in nature, double recovery may result if damages are awarded for the same hours worked under both the federal and state law. Blue v. Finest Guard Servs., Inc., No. 09-CV-133 (ARR) (CLP), 2010 WL 2927398, at *6 n.11 (E.D.N.Y. June 24) (citation omitted), adopted by, 2010 WL 2927403 (E.D.N.Y. Jul. 19, 2010). Here, the only claim Plaintiffs allege that is subject to both the FLSA and NYLL is their claim regarding unpaid overtime compensation.

The statute of limitations for each claim dictates under which law a claimant will be entitled to recovery. The NYLL statute of limitations is six years. N.Y. Lab. Law § § 198 (3), 663(3). The statute of limitations for the FLSA is two or three years depending upon whether the violation was willful. 29 U.S.C. § 255(a). The complaint alleges that Defendants failure to pay Plaintiffs the overtime premium for hours worked beyond forty hours in a workweek was willful. (Compl. ¶ 33). Thus, Plaintiffs have adequately pleaded the violations are willful and therefore the three year statute of limitations for their FLSA applies.

Under the FLSA, an action is commenced as to an individual employee " on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action." 29 U.S.C. § 216(c). Here, Tacuri and Castaneda are named plaintiffs and filed their complaint on May 8, 2014. ( See Compl.) Because Tacuri's earliest allegation of unpaid overtime compensation is May 6, 2012 ( see dkt. no. 8 exh. A (" Tacuri Decl.) ¶ 4), his unpaid overtime compensation claim falls entirely within the FLSA statute of limitations. Castaneda worked for Defendants from March 2002 through February 18, 2014. (Dkt. No. 8 Exh. C (" Castaneda Decl.") ¶ ¶ 4-5.) Consequently, Castaneda's unpaid overtime compensation claim under the FLSA will cover damages accrued from May 8, 2011 until February 18, 2014. The NYLL will cover Castaneda's overtime compensation claim from May 8, 2008 to May 8, 2011.

A. Unpaid Compensation

The employee bringing an action for unpaid wages bears the burden of proving that he was not compensated for work performed. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), superseded by statute on other grounds, 29 U.S.C. § 252. Under both the FLSA and the NYLL, an employer must maintain accurate records of an employee's hours. 29 U.S.C. § 211(c); N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.6. When an employer's records are inadequate, an employee may meet his burden by producing " sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Rivera v. Ndola Pharmacy Corp., 497 F.Supp.2d 381, 388 (E.D.N.Y. 2007) (quoting Anderson, 328 U.S. at 687). A plaintiff-employee may meet this standard solely through his or her recollection. Rivera, 497 F.Supp.2d at 388 (citing Doo Nam Yang v. ACBL Corp., 427 F.Supp.2d 327, 335 (S.D.N.Y. 2005)).

In support of a damages award, Plaintiffs submit affidavits, which describe, inter alia, years of employment, days per week worked, average hours per week worked, and wages paid. ( See generally Tacuri Decl.; Castaneda Decl.) Plaintiffs also attach tables reflecting their specific damage calculations. ( See Dkt. No. 8 Exh. B (" Tacuri Table"), Exh. D (" Castaneda Table").)

1. Unpaid Wages

The NYLL requires employers to pay wages to manual workers " weekly and not later than seven calendar days after the end of the week in which the wages are earned." N.Y. Lab. Law § 191(1)(a)(i). Tacuri states that Amin " was almost always two weeks behind" in paying wages. (Tacuri Decl. ¶ 15.) He further alleges that at the time he left Defendants' employ he was owed $680.00 in back wages. (Id. ¶ 23.) Therefore, Tacuri is entitled to $680.00 in unpaid compensation.

Castaneda claims that Amin regularly fell behind paying his employees. (Castaneda Decl. ¶ 16.) On payday Amin would " tell us that he did not have the money to pay us our full pay, and that he would catch up later." (Id. ¶ 17.) Castaneda claims that at the end of his employ by Defendants they owed him $200.00 in back pay. (Id. ¶ 19.) Castaneda is, therefore, entitled to $200.00 in unpaid compensation.

2. Unpaid Overtime Compensation

Overtime compensation under the FLSA is one and one-half times the regular pay rate for each hour worked over forty hours in any given workweek. 29 U.S.C. § 207(a)(1). The FLSA requires that employees who work more than forty hours in a workweek " receive[ ] compensation for his employment in excess of [forty] hours . . . at a rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). The NYLL incorporates and restates the FLSA, such that the analysis of overtime claims under the NYLL is generally the same under the FLSA. See N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2 (" An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended . . . .")

Plaintiffs claim that they were not paid overtime compensation for the hours that they worked in excess of forty. (Tacuri Decl. ¶ 14; Castaneda Decl. ¶ 15.) They also claim that they were not paid an hourly rate, but rather a day rate. (Tacuri Decl. ¶ 13; Castaneda Decl. ¶ 14.) In order to determine what overtime compensation is owed, I must first determine the regular rate received by each Plaintiff. Santillan v. Henao, 822 F.Supp.2d 284, 295 (E.D.N.Y. 2011). " If the employee is paid a flat sum for a day's work . . . his regular rate is determined by totalling all the sums received at such day rates . . . in the workweek and dividing by the total hours actually worked." 29 C.F.R. § 778.112; see also Santillan, 822 F.Supp.2d at 295 (determining regular rate of pay by " dividing the salary by the number of hours for which the salary is intended to compensate.") (internal citation omitted).

a. Tacuri

Tacuri claims that for the weeks that he worked overtime he worked six days a week and forty-eight hours per week. (Tacuri Decl. ¶ ¶ 8, 10.) In accordance with Tacuri's declaration his regular rates and overtime compensation rates are as follows ( see id. ¶ ¶ 11-12):

Time Period

Day

Regular

Hourly

Rate

Hourly

Overtime

Rate

Compensation

5/6/2012 - 10/31/2013

$130.00

$16.25

$8.13

11/1/2013 - 4/24/2014

$140.00

$17.50

$8.75

The number of weeks in which Tacuri worked overtime is found in his damage calculations. ( See Tacuri Table.) Plaintiffs' counsel represents to the Court that such calculations were " based on the estimates provided by Mr. Tacuri to the best of his recollection . . . ." (Dkt. No. 8 (" Stein Decl.") ¶ 9.) This table provides that from May 6, 2012 until October 31, 2013, Tacuri worked forty-eight hours for sixty-nine weeks. (Tacuri Table.) For this period Tacuri is owed hourly overtime compensation on eight hours during each of those sixty-nine weeks or $4487.76 ($8.13 X 8 hours X69 weeks). This table also provides that from November 1, 2013 to April 24, 2014 Tacuri worked twenty-two weeks at forty-eight hours per week. (Tacuri Table.) He is owed hourly overtime compensation on eight hours during each of those twenty-two weeks or $1540.00 ($8.75X 8 hours X 22 weeks). Therefore, Tacuri is owed a total of $6027.76 in unpaid overtime compensation.

b. Castaneda

Castaneda claims to have worked overtime in two different situations, each of which yield different rates of overtime compensation because the number of days per week and hours per week vary. He claims that some weeks he worked six days a week at fifty hours a week. (Castaneda Decl. ¶ ¶ 8, 10.) Some weeks, however, Castaneda states that he worked five days a week at forty-two hours a week. (Castaneda Decl. ¶ 11.) In accordance with Castaneda's declaration, his regular rates and overtime compensation rates are as follows:

For Six Day Work Weeks ( see id . ¶ 13)

Time

Day

Regular

Hourly

Period[4]

Rate

Hourly

Overtime

Rate

Compensation

5/8/2008 - 1/31/2011

$140.00

$16.80

$8.40

2/1/2011 - 2/21/2011[5]

$130.00

$15.60

$7.80

3/1/2012 - 2/18/2014

$160.00

$19.20

$9.60

For Five Day Work Weeks ( see id . ¶ 13)

Time Period

Day

Regular

Hourly

Rate

Hourly

Overtime

Rate

Compensation

5/8/2008 - 1/31/2011

$140.00

$16.67

$8.33

2/1/2011 - 2/21/2011

$130.00

$15.48

$7.74

3/1/2012 - 2/18/2014

$160.00

$19.05

$9.52

For the weeks in which Castaneda worked fifty hours, he is entitled to ten hours of overtime compensation. He is also entitled to two hours of overtime compensation for the weeks in which he worked forty-two hours.

As with Tacuri, the number of weeks in which Castaneda worked the various amounts overtime are found in his damage calculations. ( See Castaneda Table.) Plaintiffs' counsel represents to the Court that such calculations were " based on the estimates provided by Mr. Castaneda to the best of his recollection . . . ." (Stein Decl. ¶ 12.) This table provides that during the period from May 8, 2008 to January 31, 2011 Castaneda worked 125 fifty-hour weeks and seventeen forty-two hour weeks. (Castaneda Table.) Castaneda is owed $10, 500.00 ($8.40 X 10 hours X 125 weeks) in overtime compensation for the fifty-hour weeks during this period and $283.22 ($8.33 X 2 hours X 17 weeks) in overtime compensation for the forty-two hour weeks during this period.

Castaneda worked three fifty-hour weeks during February 2011. (Castaneda Table.) He is owed $234.00 in overtime compensation for this month ($7.80 X 10 hours X 3 weeks). Castaneda returned to work for Defendants on March 1, 2012. (Castaneda Table.) From that time until his employment ceased with Defendants he worked eighty-four fifty-hour weeks and eleven forty-two hour weeks. (Id.) For this period he is owed $8064.00 in overtime compensation for the fifty-hour weeks ($9.60 X 10 hours X 84 weeks) and $209.44 in overtime compensation for the forty-two hour weeks ($9.52 X 2 hours X 11 weeks). After careful examination of Castaneda's submissions supporting his overtime claims; he is entitled to $19, 290.66 in overtime compensation. Therefore, I respectfully recommend that Plaintiffs be awarded a combined total of $25, 318.42 in unpaid overtime compensation.

B. Wage Theft Prevention Act

1. Section 195(1)

Section 195(1)(a) of the NYLL, which became effective April 9, 2011, requires employers to provide all employees with a written notice " at the time of hiring" and " on or before February first of each subsequent year of the employee's employment, " containing, inter alia, information about the employee's rate of pay, hours of employment, and contact information for the employer. Employees who do not receive a copy of the written notice within ten days of their first day of employment may recover fifty dollars in damages for each week that the violation occurs, up to a statutory maximum of $2500.00. N.Y. Lab. Law § 198(1-b); see Gonsalez v. Marin, 12-CV-1157 (ENV) (RML), 2014 WL 2514704, at *7 (E.D.N.Y. Apr. 25), adopted by, 2014 WL 2526918 (E.D.N.Y. Jun. 4, 2014).

Tacuri claims that he was never provided with such notice when he was hired, in January 2013, or in January 2014. (Tacuri Decl. ¶ 24.) NYLL § 195(1) was violated as to Tacuri for at least 102 weeks, however the damages that can be awarded under this statute is capped at $2500.00. See N.Y. Lab. Law § 198(1-b). I, therefore, respectfully recommend that Tacuri be awarded $2500.00.

Castaneda claims that he also was never provided with such notice under this statute when he was hired, in January 2013, or in January 2014. (Castaneda Decl. ¶ 20). Given that this statute was not in effect until April 9, 2011, the relevant period as to Castaneda's claim under this statute is when he returned to work for Defendants, March 1, 2012. This means that this statute was violated as to Castaneda for at least 102 weeks. Again, this yields damages in excess of the statutory cap, such that I respectfully recommend that Castaneda be awarded $2500.00 regarding the violation of NYLL § 195(1).

2. Section 195(3)

The NYLL also requires that employers provide each employee with a written statement with each payment of wages that includes, inter alia, the employee's rate of pay, deductions, allowances, hours of employment, and overtime pay. N.Y. Lab. Law§ 195(3). Employees who do not receive a copy of this written statement with each payment of wages made on or after April 9, 2011 may recover one hundred dollars in damages for each week that the violation occurs, up to a statutory maximum of $2500.00. N.Y. Lab. Law § 198(1-d).

Tacuri and Castaneda claim that they were always paid in cash and never received any notice with their weekly pay that informed them of the hours they worked, pay rate, or pay received. (Tacuri Decl. ¶ 9; Castaneda Decl. ¶ 9.) Tacuri and Castaneda worked for Defendants for more than twenty-five weeks after April 9, 2011, and neither Plaintiff received a written wage statement at any point during their employment. Thus, Plaintiffs are each entitled to each recover the statutory maximum of $2500.00 in damages ($100.00 per week X 25 weeks) for the § 195(3) violations. I, therfore, respectfully recommend that Plaintiffs be awarded $5000.00 each; a total of $10, 000.00 in total for violations of both sections of the Wage Theft Prevention Act.

C. Liquidated Damages

Plaintiffs also seek liquidated damages against Defendants under the FLSA and NYLL. Plaintiffs are entitled to liquidated damages under both the FLSA and NYLL for the same period because the liquidated damages provision of each statute seeks to vindicate a different type of wrong. See Eschmann v. White Plains Crane Serv., Inc., No. 11-CV-5881 (KAM) (VVP), 2014 WL 1224247, at *7 (E.D.N.Y. Mar. 24, 2014) (FLSA liquidated damages are compensatory whereas NYLL liquidated damages are punitive). However, Plaintiffs do not take advantage of these overlapping liquidated damages and only seek same under either the FLSA or NYLL.

1. FLSA Liquidated Damages

Under the FLSA, " [a]ny employer who violates the provisions of . . . section 207. . . shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). The FLSA further provides that " if the employer shows . . . that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that [it] was not a violation of the [FLSA], the court may, in its sound discretion, award no liquidated damages or award any [lesser] amount . . . ." Id. § 260.

In light of Defendants' default, there has been no showing that Defendants acted in good faith or that the Court should decline its discretion in granting liquidated damages. See Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987) (noting that employer bears burden of establishing good faith defense under section 260 through " plain and substantial evidence"); Khan v. IBI Armored Servs., Inc., 474 F.Supp.2d 448, 459 (E.D.N.Y. 2007) (" Simply put, double damages are the norm, single damages the exception, the burden on the employer" (citation omitted) (internal quotation marks omitted)). Therefore, Plaintiffs are entitled to FLSA liquidated damages, equal to the amount of compensation they received under the FLSA.

Accordingly, Tacuri is entitled to FLSA liquidated damages in the amount of $6027.76, one hundred percent of his total FLSA damages. Castaneda is entitled to FLSA liquidated damages in the amount of $8273.44, one hundred percent of the unpaid overtime compensation due to him under the FLSA. I, therefore, respectfully recommend Plaintiffs be awarded a total of $14, 301.20 in liquidated damages under the FLSA.

2. NYLL Liquidated Damages

Prior to 2009, an employee could only receive liquidated damages under the NYLL if his employer's failure to pay him was willful. N.Y.Lab.Law § 198(1-a). Effective November 24, 2009, an employee can recover liquidated damages " unless the employer proves a good faith basis for believing that its underpayment of wages was in compliance with the law." N.Y. Lab. Law § 198(1-a).

Since Defendants have failed to appear for this case, and default judgment has been entered against them, the failure to pay overtime compensation and regular wages is deemed to be willful. Blue, 2010 WL 2927398, at*11. Further, in light of Defendants' default, there has also been no showing that Defendants acted in good faith or that the Court should decline its discretion in granting liquidated damages. See Brock, 833 F.2d at 19 (noting that employer bears burden of establishing good faith defense). Thus, Plaintiffs may receive NYLL liquidated damages because the Defendants' failure to pay was willful and no good faith basis has been provided.

For all NYLL claims that occurred before April 8, 2011, NYLL liquidated damages were equal to " twenty-five percent of the total amount of wages to be found due." Gortat v. Capala Bros., 949 F.Supp.2d 374, 381 (E.D.N.Y. 2013) (citing N.Y. Lab. Law § 663(1)). For all NYLL claims that occurred on and after April 9, 2011, the employer is liable for liquidated damages equal to one hundred percent of the total amount of wages found to be due. N.Y. Lab. Law. § 663(1).

Tacuri only seeks NYLL liquidated damages on his unpaid wage claim. (Dkt. No. 7 Exh. 2 (" Mem. of Law") at 9.) This claim falls wholly under the one hundred percent liquidated damages calculation. Accordingly, I respectfully recommend that he be awarded one hundred percent of his NYLL damages or $680.00.[6]

Castaneda seeks NYLL liquidated damages on his unpaid overtime compensation claim for the May 8, 2008 through April 8, 2011 period, as well as on his unpaid wages damages. (Mem. of Law at 9.) For NYLL damages incurred between May 8, 2008 and April 8, 2011, Castaneda is entitled to liquidated damages calculated at twenty-five percent. Thereafter, Castaneda's claim is subject to liquidated damages calculated at one hundred percent. Castaneda is entitled to $11, 017.22 in NYLL overtime compensation for the period of May 8, 2008 through April 8, 2011, therefore I respectfully recommend that he be awarded $2754.31 in NYLL liquidated damages on this amount.

Castaneda also seeks NYLL liquidated damages on his unpaid wage claim. (Mem. of Law at 9.) He is entitled to $200.00 in NYLL unpaid wages, which are subject to one hundred percent liquidated damages. He, therefore, is entitled to $200.00 in liquidated damages on this amount. In sum, I respectfully recommend that Castaneda be awarded $2954.31 in NYLL liquidated damages. Accordingly, I respectfully recommend that Plaintiffs are collectively entitled to $3634.31 in liquidated damages under the NYLL.

D. Interest

Plaintiffs make brief mention of prejudgment interest in their complaint, however they fail to pursue this relief in the instant motion for default judgment. ( See Dkt. No. 7; Mem. of Law.) Plaintiffs' request for prejudgment interest, therefore, appears to be abandoned. See Trs. of the Plumbers Local Union No. 1 Welfare fund v. Generation II Plumbing & Heating, Inc., No. 07-CV-5150 (SJ) (SMG), 2009 WL 3188303, at *4 n.3 (E.D.N.Y. Oct. 1, 2009); see also Finkel v. Metro. Sign & Maint. Corp., No. 09-CV-4416 (SJ) (CLP), 2010 WL 3940448, at *2 n.6 (E.D.N.Y. Aug. 12), adopted by, 2010 WL 3927512 (E.D.N.Y. Oct. 5, 2010).

Unlike prejudgment interest, Plaintiffs are entitled to post-judgment interest on all money awards as a matter of right. See Holness v. Nat'l Mobile Television, Inc., 09-CV-2601 (KAM) (RML), 2012WL1744847 at *7 (E.D.N.Y. Feb. 14), adopted as modified by, 2012 WL 1744744 (E.D.N.Y. May 15, 2012); see also 28 U.S.C. § 1961(a) (" Interest shall be allowed on any money judgment in a civil case recovered in a district court." (emphasis added)). An award of post-judgment interest is governed by the federal rate as set forth in 28 U.S.C. § 1961. See Cappiello v. ICD Publ'ns, 868 F.Supp.2d 55, 63-64 (E.D.N.Y. 2012). Accordingly, I respectfully recommend that Plaintiffs be awarded post-judgment interest on all sums awarded, including attorney fees and costs, commencing when the Clerk of the Court enters judgment until the date of payment. See Gamble v. E. Bronx N.A.A.C.P. Day Care Ctr, Inc., 04-CV-1198 (KMW) (HBP), 2008 WL2115237, at *2 (S.D.N.Y. May 15, 2008).

E. Attorney's Fees

Both the FLSA and NYLL allow for an award of " reasonable" attorney's fees. See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). The amount of reasonable attorney's fees is determined by multiplying " the number of hours reasonably expended on the litigation" by " a reasonable hourly rate, " or " a presumptively reasonable fee." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 188-90 (2d Cir. 2008); Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058-59 (2d Cir. 1989).

1. Reasonable Hourly Rates

In order to arrive at the reasonable hourly rate, which is the " rate a paying client would be willing to pay, " Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 190, courts look to the rates " prevailing in the community for similar services of lawyers of reasonably comparable skill, experience, and reputation, " Blum v. Stenson, 465 U.S. 886, 896 n.11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The courts apply a presumption utilizing the prevailing rates in the forum where the court sits. Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2009). The courts receive guidance from (1) rates awarded in prior cases; (2) its own knowledge of hourly rates charged in the district; and (3) evidence submitted by the parties. See Farbotko v. Clinton Cnty. of N.Y., 433 F.3d 204, 209 (2d Cir. 2005) (citations omitted). " [T]he nature of representation and type of work involved in a case are critical ingredients in determining the 'reasonable' hourly rate." Arbor Hill Concerned Citizens Neighborhood Ass'n, 522 F.3d at 184 n.2. The nature of the representation and work involved in the instant case was relatively straightforward, especially because Defendants defaulted.

Plaintiffs seek $350.00 per hour for David Stein (" Stein"), partner at Samuel & Stein, and $275.00 per hour for David Nieporent (" Nieporent"), senior associate at Samuel & Stein. (Stein Decl. ¶ 16.) Stein has been licensed to practice law since 1990 and has been licensed to practice law in New York since 2000. (Id ¶ 15.) The prevailing hourly rate for partners in this district range from $300.00 to $400.00. See Concrete Flotation Sys., Inc. v. Tadco Constr. Corp., No. 07-CV-319 (ARR) (VVP), 2010 WL 2539771, at *4 (E.D.N.Y. Mar. 15), adopted by, 2010 WL 2539661 (E.D.N.Y. June 17, 2010); Luca v. Cnty. of Nassau, 698 F.Supp.2d 296, 301-02 (E.D.N.Y. 2010); Gutman v. Klein, No. 03-CV-1570 (BMC), 2009 WL 3296072, at *2 (E.D.N.Y. Oct. 13, 2009); Whitney v. JetBlue Airways Corp., No. 07-CV-1397 (CBA), 2009 WL4929274, at *7 (E.D.N.Y. Dec. 21, 2009). In light of the aforementioned, I respectfully recommend that Stein be awarded his requested rate of $350.00 an hour, which is within the range of prevailing hourly rates for partners of reasonably comparable skill, experience, and reputation in this district. Whitney v. JetBlue Airways Corp., 2009 WL 4929274, at *7 (awarding $350.00 per hour for partner who had been practicing for twenty-eight years in small firm).

Nieporent has practiced law since 2001 and has been licensed to practice in New York since 2011. (Stein Decl. ¶ 15.) Opinions from this district have determined that a reasonable hourly rate for a senior associate ranges from $200.00 to $300.00. ADP, Inc. v. Planet Automall, Inc., No. 09-CV-0185 (ILG) (RER), 2012WL4793509, at *5 (E.D.N.Y. Sept. 17), adopted by, 2012 WL 4798287 (E.D.N.Y. Oct. 9, 2012); Ferrara v. On-Par Constr. Ltd., No. 11-CV-0992 (RRM) (SMG), 2011 WL 6963182, at *3 (E.D.N.Y. Dec. 20, 2011), adopted as modified by, 2012 WL 37618 (E.D.N.Y. Jan. 9, 2012); Pilitz v. Inc. Vill. of Freeport, No. 07-CV-4078 (ETB), 2011 WL 5825138, at *4 (E.D.N.Y. Nov. 17, 2011) (citing Builders Bank v. Rockaway Equities, LLC, No. 08-CV-3575 (MDG), 2011 WL 4458851, at * 8 (E.D.N.Y. Sept. 23, 2011)). Accordingly, I respectfully recommend that Nieporent be awarded his requested hourly rate of $275.00, which is within the range of prevailing hourly rates for senior associates of comparable skill, experience and reputation within the district. See ADP, Inc., 2012 WL 4793509, at *5 (recommending $275.00 hourly rate for senior associate as acceptable); Ferrara, 2011 WL 6963182 at *3 (finding that associate rate of $275.00 per hour reasonable.)

2. Reasonable Hours Expended

The second component to calculate an attorney's fee is the number of hours reasonably expended on the litigation. Such an amount is calculated by taking the hours actually expended less any " excessive, redundant, or otherwise unnecessary" time. Hensley, 461 U.S. at 433-34. The party seeking attorney's fees bears the burden of supporting its claim of hours expended by accurate, detailed and contemporaneous time records. N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1147-48 (2d Cir. 1983). These time records should " specify, for each . . . [timekeeper], the date, the hours expended, and the nature of the work done." Vargas v. Transeau, No. 04-CV-9772 (WHP), 2008 WL 3164586, at *3 (S.D.N.Y. Aug. 6, 2008) (quoting N.Y. State Ass'n for Retarded Children, Inc., 711 F.2d at 1148). The court must examine the particular hours, with an eye to the value of the client's case, of the work product resulting from the specific time expenditures. See Lunday v. City of Albany, 42 F.3d 131, 133 (2d Cir. 1994); DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir. 1985).

Plaintiffs seek attorney's fees on a total of 16.24 hours, 1.3 hours for Stein and 14.94 hours for Nieporent. (Dkt. No. 8 Exh. E (" Time Records").) In support of these hours Plaintiffs submit Stein and Nieporent's contemporaneous billing records that detail the work performed and the time spent on this matter. (Id.) I have examined the time records and I find that the hours expended are reasonable and not excessive. Accordingly, I recommend that Plaintiffs be awarded compensation for Stein's 1.3 hours of work and Nieporent's 14.94 hours of work. Applying the attorney's respective reasonable rates to the reasonable hours billed in this matter, I respectfully recommend that Plaintiffs be awarded a total of $4563.50 in attorney's fees, consisting of $455.00 for Stein's fees and $4108.50 for Nieporent's fees.

F. Costs and Fees

Plaintiffs also seek to recover $748.00 in litigation costs and fees, consisting of $400.00 for the court filing fee, $108.00 for the service fee, and $240.00 for interpretation costs. A prevailing plaintiff in an action under the FLSA or NYLL is entitled to recover costs from the defendant. See 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). " Costs relating to filing fees, process servers, postage, and photocopying are ordinarily recoverable." Teamsters Local 814 Welfare Fund v. Dahill Moving & Storage Co., 545 F.Supp.2d 260, 269 (E.D.N.Y. 2008) (citing Tips Exports, Inc. v. Music Mahal, Inc., No. 01-CV-5412 (SJF) (VVP), 2007 WL 952036, at *11 (E.D.N.Y. Mar. 27, 2007)).

Although Plaintiffs fail to provide any evidence to support their request for the court's filing fee, a court can take judicial notice of the court's filing fee and award it. See Joe Hand Promotions, Inc. v. Elmore, No. 11-CV-3761 (KAM) (SMG), 2013 WL 2352855, at *7 (E.D.N.Y. May 29, 2013). Accordingly, I respectfully recommend that Plaintiffs be awarded $400.00 for the court filing fee.

Plaintiffs have failed to submit adequate documentary evidence in support of their request for $108.00 in service fees. All they have submitted to the Court in support of the service fees is one notation within Plaintiffs' attorneys' contemporaneous billing records classified as " Service Fee." (Time Records.) I, therefore, respectfully recommend that the Court deny Plaintiffs' request for reimbursement of such service fees. See Kingvision Pay-Per-View, Ltd. v. Castillo Rest. Corp., No. 06-CV-0617 (RJD) (KAM), 2007 WL 841804, at *7 (E.D.N.Y. Jan. 16, 2007) (recommending denial of plaintiff's request for costs where plaintiff " submitted no documentary evidence in support of its request for $150 in costs"), adopted by, slip op. dated Mar. 16, 2007; see also Li Ping Fu v. Pop Art Int'l Inc., No. 10-CV-8562, 2011 WL 4552436, at *5 (S.D.N.Y. Sept. 19, 2011) (" The Court takes judicial notice of the Court's own filing fee amount, but plaintiff has not provided supporting documentation as to the service costs and therefore that amount is not recoverable."), adopted in relevant part by, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011).

I finally turn to Plaintiffs' request for $240.00 in interpretation costs. Such interpretation services are a recoverable cost. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (" awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients."); see also Janus v. Regalis Constr., Inc., No. 11-CV-5788 (ARR) (VVP), 2012 WL 3878113, at *13 (E.D.N.Y. Jul. 23) (awarding interpretation costs), adopted by, 2012 WL 3877963 (E.D.N.Y. Sept. 4, 2012); Allende v. Unitech Design, Inc., 783 F.Supp.2d 509, 515 (S.D.N.Y. 2011) (awarding costs of interpreters who translated at depositions and court conferences in FLSA action). Plaintiffs, again, do not submit documentation of this cost. Instead these services are merely two line items within Plaintiffs' counsel's contemporaneous billing records. (Time Records.) Plaintiffs have failed to submit supporting documentation, such as an invoice in support of this amount. I, therefore, respectfully recommend that the Court not award Plaintiffs the $240.00 requested in interpretation services. Cf. Gonsalez, 2014 WL 2514704, at *14 (awarding plaintiff costs for interpretation services when supported by invoices). After reviewing Plaintiffs' submissions, I respectfully recommend that Plaintiffs only be awarded $400.00 in costs for the court filing fee.

CONCLUSION

For the reasons set forth above, I respectfully recommend that: Plaintiffs' motion for default judgment be granted; Plaintiffs be awarded a total of $59, 097.43 in damages, divided among Plaintiffs as outlined above, comprising of $880.00 in unpaid wages; $25, 318.42 in unpaid overtime compensation; $10, 000.00 for Wage Theft Prevention Act violations; $17, 935.51 in liquidated damages; post-judgment interest; $4563.50 in attorney's fees; and $400.00 in costs.

Any objections to the recommendations made in this Report must be filed with the Clerk of the Court and the Honorable Carol B. Amon within fourteen days of receipt hereof. Failure to file timely objections waives the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Plaintiffs are hereby directed to serve a copy of this Report and Recommendation upon Defendants by certified mail within two business days, at Defendants' last-known addresses, and to promptly thereafter file proof of service with the Clerk of the Court.

SO ORDERED.


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