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Fermin v. Las Delicias Peruanas Rest., Inc.

United States District Court, E.D. New York

March 19, 2015

FRANCISCO FERMIN, EMILIO MORENO and ANDRES DEL ROSARIO, Plaintiffs, -
v.
LAS DELICIAS PERUANAS RESTAURANT, INC., BERTHA MARCONI and NICOLAS DE PIEROLA, Defendants

Order Filed: February 27, 2015

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[Copyrighted Material Omitted]

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For Francisco Fermin, Emilio Moreno, Plaintiffs: Justin Cilenti, Peter Hans Cooper, LEAD ATTORNEY, Giustino Cilenti, Cilenti & Cooper, PLLC New York, NY.

For Andres Del Rosario, on behalf of themselves and others similarly situated Plaintiff: Giustino Cilenti, Cilenti & Cooper, PLLC, New York, NY.

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ORDER ADOPTING REPORT AND RECOMMENDATION

ROSLYNN R. MAUSKOPF, United States District Judge.

By a motion filed August 25, 2014, plaintiffs moved for a default judgment. On November 6, 2014, this Court referred the matter to the assigned Magistrate Judge, the Honorable Vera M. Scanlon. On February 27, 2014, Magistrate Judge Scanlon issued a Report and Recommendation (" R& R" ) recommending that this Court (1) grant plaintiffs' motion for default judgment; (2) award plaintiffs $428,008.40 in

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damages, which represents $289,605.23 for plaintiff Francisco Fermin, $59,343.64 for plaintiff Emilio Moreno, $70,388.53 for plaintiff Andres Del Rosario, and $8,671.00 in attorney's and paralegal's fees and costs; and (3) order the defendants to pay plaintiffs' post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961..

Magistrate Judge Scanlon reminded the parties that any objections to the R& R were due by March 16, 2015. (Doc. No. 17 at 54.) Magistrate Judge Scanlon further noted that she had mailed a copy of the relevant docket entry as well as the R& R and its appendix to each defendant. (Doc. No. 17.) As of this date, no party has filed any objections.

Pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72, the Court has reviewed the R& R for clear error. Noting the thorough review that Magistrate Judge Scanlon performed of plaintiffs' claims, affidavits, and other documents, her well-reasoned analysis of defendants' liability, and her detailed examination of plaintiffs' individual damages calculations, the Court finds no clear error in the R& R. It concurs with and adopts Magistrate Judge Scanlon's R& R in its entirety. See Covey v. Simonton, 481 F.Supp.2d 224, 226 (E.D.N.Y. 2007).

CONCLUSION

Accordingly, plaintiffs' motion for default judgment is GRANTED, and it is hereby ORDERED that defendants Las Delicias Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pierola are jointly and severally liable for damages in the amount of $428,008.40 to each of the named plaintiffs as follows:

Damages to plaintiff Francisco Fermin: $12,555.60 for unpaid minimum wages for hours worked up to forty hours per week; $38,155.68 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $8,559.55 for unpaid spread-of-hours premiums; $128,700.00 in misappropriated tips; $10,761.07 in liquidated damages under the NYLL and $14,406.80 in liquidated damages under the FLSA; and $76,466.53 in pre-judgment interest, for a total award of $289,605.23.
Damages to plaintiff Emilio Moreno: $8,726.00 for unpaid minimum wages for hours worked up to forty hours per week; $20,376.60 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $1,599.15 for unpaid spread-of-hours premiums; $4,164.64 in liquidated damages under the NYLL and $13,231.20 in liquidated damages under the FLSA; and $11,246.05 in pre-judgment interest, for a total award of $59,343.64.
Damages to plaintiff Andres Del Rosario: $13,027.20 for unpaid minimum wages for hours worked up to forty hours per week; $21,668.00 for unpaid minimum wages and overtime premium pay for hours worked in excess of forty hours per week; $1,513.35 for unpaid spread-of-hours premiums; $4,696.24 in liquidated damages under the NYLL and $16,611.60 in liquidated damages under the FLSA; and $12,872.14 in pre-judgment interest, for a total damages award of $70,388.53.

And it is

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FURTHER ORDERED that defendants Las Delicias Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pierola are hereby jointly and severally liable for attorney's fees and costs in the total amount of $8,671.00, and it is

FURTHER ORDERED that defendants Las Delicias Peruanas Restaurant, Inc., Bertha Marconi and Nicolas De Pierola pay post-judgment interest.

The Clerk of Court is directed to enter Judgment accordingly, transmit copies of this Order and the accompanying Judgment to each of the three defendants via U.S. Mail at the following address: Las Delicias Peruanas Restaurant, Inc., 43-07 104th Street, Corona, New York 11368. The Clerk of Court is further directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

VERA M. SCANLON, United States Magistrate Judge.

Plaintiffs Francisco Fermin, Emilio Moreno and Andres Del Rosaro (collectively " Plaintiffs" ) bring this action against Defendants Las Delicias Peruanas Restaurant, Inc. (" Las Delicias" ), Berha Marconi and Nicolas De Pierola (collectively " Defendants" ) pursuant to the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201 et seq., and the New York Labor Law (" NYLL" ), N.Y. Lab. Law § 650 et seq., as recently amended by the Wage Theft Prevention Act (" WTPA" ), N.Y. Lab. Law § 195(3). Docket No. 1. Plaintiffs seek to recover unpaid minimum wages, unpaid overtime compensation, unpaid and/or misappropriated tips, unpaid " spread-of-hours" premiums for the days they worked in excess of ten hours, liquidated damages, and civil penalties pursuant to the NYLL and the WTPA, pre-judgment interest, and attorney's fees and costs. Id . Upon Defendants' failure to answer or otherwise respond to this action, the Clerk of Court noted Defendants' default. Docket No. 9. Plaintiffs filed a motion for default judgment against Defendants. Docket Nos. 10-15. The Honorable Roslynn R. Mauskopf referred the motion to me for a report and recommendation.

For the following reasons, I respectfully recommend that the District Judge grant the default judgment motion; find Defendants liable to Plaintiffs for violations of the FLSA and the NYLL as discussed herein; enter a judgment against Defendants for Plaintiffs in the amount of $428,008.40 in damages, which represents $289,605.23 for Mr. Fermin, $59,343.64 for Mr. Moreno, $70,388.53 for Mr. Del Rosario, and $8,671.00 in attorney's and paralegal's fees and costs; and order Defendants to pay Plaintiffs post-judgment interest.

I. Background

The following facts are derived from the Complaint and are accepted as true for purposes of this motion. Docket No. 1. Facts relating to the procedural history of the case are derived from the docket.

a. General Factual Background Regarding Las Delicias, The Individual Defendants' Roles, And Employment Policies And Practices At Las Delicias

Las Delicias is a restaurant and domestic business corporation organized under New York law, with a principal place of business within the Eastern District of New York, near Corona Park, Queens. Id. ¶ 7. The Individual Defendants are joint owners, shareholders, officers, directors, managing agents and proprietors of Las Delicias, and they both actively participated in Las Delicias's day-to-day operations during all periods of time relevant to this action. Id. ¶ 8. The Individual Defendants are both employers pursuant to the FLSA, 29 U.S.C. § 203(d), and related regulations such as 29 C.F.R. § 791.2, as well as under NYLL § 2(6) and related regulations under the NYLL. Docket No. 1 ¶ 8.

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The Individual Defendants each exercised control over the terms and conditions of Plaintiffs' employment in that they each had the power during all relevant periods to: (1) hire and fire employees; (2) determine rates and methods of pay; (3) determine whether an employee receives a raise and, if so, in what amount; (4) determine the number of hours an employee works by assigning work schedules; (5) supervise and control work of the employees; and (6) otherwise affect the quality of the employees' employment. Id. ¶ ¶ 9-10, 19. The Individual Defendants were present at Las Delicias on a daily basis and were considered the bosses of all of Las Delicias's employees in that the Individual Defendants personally supervised the employees' work, instructed the employees on how to perform their jobs, reprimanded the employees for any errors the employees made in executing their duties, and required that hours and pay be authorized or approved by them. Id. ¶ ¶ 10, 18.

At all times relevant to this action, Las Delicias was an " enterprise engaged in commerce" within the meaning of the FLSA in that it (1) has and has had employees engaged in commerce or in the production of goods for commerce, or that handle, sell, or otherwise work on goods or materials that have been moved in or produced for commerce, and (2) has and has had an annual gross volume of sales of not less than $500,000.00. Id. ¶ ¶ 11, 71, 73. Defendants employed Plaintiffs, who are covered individuals within the meaning of the FLSA, § § 206(a) and 207(a), and Plaintiffs' work was essential to Las Delicias's operations. Docket No. 1 ¶ ¶ 12, 71-72.

At all relevant times, Defendants knowingly and willfully operated Las Delicias with a policy of not paying Plaintiffs: (1) their lawfully earned FLSA and New York State minimum wages for the hours worked; (2) their lawfully earned FLSA and New York State overtime compensation (time and one-half); and (3) their lawfully earned spread-of-hours premium for each day they worked a shift in excess of ten hours. Id. ¶ ¶ 13-16, 47-50, 74-78, 80-81, 92. In addition, at all relevant times Defendants knowingly and willfully operated Las Delicias with a policy of misappropriating and retaining the tips of Mr. Fermin and/or requiring Mr. Fermin to participate in an unlawful tip sharing or tip-pooling arrangement. Id. ¶ ¶ 49, 80-81.

Finally, at all relevant times, Defendants failed to maintain accurate and sufficient time and pay records. Id. ¶ ¶ 51, 82. Defendants also failed to disclose or apprise Plaintiffs of their rights under the FLSA. Id. ¶ 83.

b. Factual Background Specific To Plaintiffs' Work As Employees Of Defendants

i. Mr. Fermin

On April 18, 2005, Defendants hired Mr. Fermin to work as a non-exempt waiter, kitchen helper/food preparer, and cleaner at Las Delicias. Id. ¶ 20. In or around November 2011, Defendants promoted Mr. Fermin to the non-exempt position of cook. Id. ¶ 21.

Over the course of Mr. Fermin's employment, he regularly worked over forty hours a week. Id. ¶ 23. From April 18, 2005 until approximately October 2011, Mr. Fermin worked six days a week for twelve hours per day (11:00 a.m. until 11:00 p.m.). Id. ΒΆ 24. Beginning in November 2011 and continuing for the remainder of his employment, Mr. Fermin worked six days a week for nine-and-one-quarter hours per day (12:00 p.m. until 9:15 p.m.) on Mondays, Wednesdays and Thursdays; ten hours per day (12:00 ...


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