United States District Court, E.D. New York
JOSE ROLANDO LEON, Individually and on behalf of others similarly situated, Plaintiff,
ZITA CHEN, Individually and DNC DOORS & CABINETS INC. Defendants.
MEMORANDUM AND ORDER
KIYO A. MATSUMOTO UNITED STATES DISTRICT JUDGE.
Jose Rolando Leon brought this action pursuant to the Fair
Labor Standards Act (“FLSA”), 29 U.S.C § 201
et seq. and the New York State Labor Law
(“NYLL”) § 190 et seq. Plaintiff
seeks unpaid wage and overtime pay, FLSA liquidated damages,
NYLL liquidated damages, damages for failure to provide
written notice of rate of pay, attorneys' fees and costs,
and post-judgment interest. Defendants failed to appear or
otherwise defend this action. After the Clerk of the Court
entered default against defendants pursuant to Rule 55(a) of
the Federal Rules of Civil Procedure, plaintiff filed the
instant motion for entry of default judgment. For the reasons
stated herein, plaintiff's motion for entry of a default
judgment is granted pursuant to Rule 55(b)(2) of the Federal
Rules of Civil Procedure. Plaintiff is awarded $33,
320.00 in damages and $4, 728.50 in
attorneys' fees and $504.00 in costs, plus post
judgment interest as prescribed in 28 U.S.C. §
Jose Rolando Leon (“plaintiff”) brought this
action against Zita Chen (“Chen”) and against DNC
Doors & Cabinets Inc. (“DNC”) under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C § 201
et seq., and the New York State Labor Law
(“NYLL”) § 190 et seq., by filing a
complaint on January 29, 2016. (Complaint
(“Compl.”), ECF No. 1.)
alleges that he worked for defendant DNC from approximately
December 2013 to December 16, 2015, as a factory worker.
(Compl., ECF No. 1 at ¶ 3; Declaration of Jose Rolando
Leon (“Leon Decl.”), ECF No. 14-3 at ¶ 3.)
DNC is a New York Corporation located in Flushing, New York
with annual gross sales in excess of $500, 000.00. (Compl.,
ECF No. 1 at ¶¶ 6-7.) At all relevant times, DNC
was an employer engaged in commerce and/or in the production
of goods. (Id. at ¶ 8.) Plaintiff also alleges
that Chen is an owner and operator of DNC, and therefore, an
employer. (Id. at ¶ 10.) Chen is responsible
for the day-to-day operations of DNC, including hiring,
terminating, supervising, setting schedules, and pay rates
for employees. (Id.)
alleges that Chen hired him to work for DNC, and fired him
from DNC. (Leon Decl., ECF 14-3 at ¶¶ 7-8.) During
2013 and 2014, plaintiff's primary job responsibilities
were delivering and installing DNC's products to its
customers in New York, New Jersey and Connecticut. (Compl.,
ECF No. 1 at ¶¶ 21-22.) During 2015, plaintiff
primarily worked in the factory, where he sanded marble, and
prepared marble for installation. (Id. at ¶
23.) Plaintiff frequently worked six days per week for
defendants, between the hours of 8 a.m. to 6 p.m. (Leon
Decl., ECF No. 14-3 at ¶¶ 10-11.) Plaintiff alleges
that he was not required to sign in or out, when he arrived
or left work. Nor was he otherwise required to record the
time he spent at work. (Compl., ECF No. 1 at ¶ 26.)
Plaintiff was paid $120.00 per day in cash, regardless of the
hours he worked. (Id. at ¶ 29.) Plaintiff
alleges that Chen terminated his employment with DNC, and
that the last day he was employed by defendants was December
16, 2015. (Leon Decl., ECF No. 14-3 at ¶¶ 3, 7.)
Plaintiff further alleges that defendants did not pay him for
his last two weeks of work, from December 2, 2015 to December
16, 2015. (Compl., ECF No. 1 at ¶ 30.)
filed the Complaint on January 29, 2016. (Compl., ECF No. 1.)
Plaintiff alleges that: 1) Defendants failed to pay him
minimum wage pursuant to FLSA and NYLL; 2) Defendants failed
to pay him overtime pay pursuant to FLSA and NYLL; 3)
Defendants failed to pay him spread-of-hours pay pursuant to
New York State labor regulations, N.Y. Comp. Codes R. &
Regs. (“NYCRR”) tit. 12, § 142-2.4; and 4)
Defendants failed to provide him with a written notice of
rate of pay pursuant to NYLL. (Compl., ECF No. 1 at
February 8, 2016, the summons and complaint were served on
Suki Zhang, who self-identified as the co-worker of Chen, and
as the general agent of DNC. (Ex. C, ECF No. 14-2 at 22-23.)
Neither Chen nor DNC appeared or has otherwise defended this
action. (Ex. D, ECF No. 14-2 at 26.) On April 15, 2016, the
Clerk of the Court filed the Clerk's Certificate of
Default against Chen and DNC pursuant to Fed.R.Civ.P. 55(a).
(Id.; ECF No. 13.)
10, 2016, plaintiff filed this motion for entry of a default
judgment against Chen and DNC pursuant to Fed.R.Civ.P.
55(b)(2). (ECF No. 14.) Plaintiff seeks the following relief:
1) unpaid wage and overtime pay in the amount of $17, 670; 2)
FLSA liquidated damages in the amount of $17, 670; 3) NYLL
liquidated damages in the amount of $17, 670; and 4) damages
in the amount of $5, 000 for failure to provide written
notice of rate of pay. (Ex. A, ECF No. 14-3 at 6.)
Additionally, plaintiff seeks $5, 063.05 in attorneys'
fees at an hourly rate of $400.00 (Ex. E, ECF No. 14-2 at
29), $400.00 in filing fees (Ex. D, ECF No. 14-2 at 25), and
$104 in costs. (Ex. E, ECF No. 14-2 at 30.) Plaintiff also
seeks post-judgment interest as provided by law. (Memo. of
Law, ECF No. 14-1 at 6.)
obtain a default judgment under Rule 55 of the Federal Rules
of Civil Procedure, a movant must complete a two-step
process. Rodriguez v. Almighty Cleaning, Inc., 784
F.Supp.2d 114, 123 (E.D.N.Y. 2011); La Barbera v. Fed.
Metal & Glass Corp., 666 F.Supp.2d 341, 346-47
(E.D.N.Y. 2009). First, the Clerk of the Court must enter
default “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or
otherwise.” Fed.R.Civ.P. 55(a); Enron Oil Corp. v.
Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Second, after
the Clerk of the Court has entered default pursuant to Rule
55(a), the movant “may then make an application for
entry of default judgment pursuant to Fed.R.Civ.P.
55(b).” Rodriguez, 784 F.Supp.2d at 123. If
the defendant fails to appear, or move to set aside the
default under Rule 55(c), the court may enter a default
judgment. Fed.R.Civ.P. 55(b)(2).
motion for entry of a default judgment, the court
“deems all the well-pleaded allegations in the
pleadings to be admitted.” Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105,
108 (2d Cir. 1997); see also Finkel v. Universal Elec.
Corp., 970 F.Supp.2d 108, 119 (E.D.N.Y. 2013). The
Second Circuit has an “oft-stated preference for
resolving disputes on the merits, ” making default
judgments “generally disfavored.” Enron,
10 F.3d at 95-96. “Accordingly, just because a party is
in default, the plaintiff is not entitled to a default
judgment as a matter of right.” Mktg. Devs., Ltd.
v. Genesis Imp. & Exp., Inc., No. 08-CV-3168
(CBA)(CLP), 2009 WL 4929419, at *2 (E.D.N.Y. Dec. 21, 2009)
(citing Erwin DeMarino Trucking Co. v. Jackson, 838
F.Supp. 160, 162 (S.D.N.Y. 1993)). Regardless of the
assumption of truth of the complaint when a party is in
default, the court has a “responsibility to ensure that
the factual allegations, accepted as true, provide a proper
basis for liability and relief.” Rolls-Royce PLC v.
Rolls-Royce USA, Inc., 688 F.Supp.2d 150, 153 (E.D.N.Y.
2010)(citing Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981)).
employee seeking to recover unpaid wages “has the
burden of proving that he performed work for which he was not
properly compensated.” Jiao v. Chen, No.
03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30,
2007) (quoting Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 687 (1946)). An employer is required by federal
and state law to maintain “records of the persons
employed by him and of the wages, hours, and other conditions
and practices of employment maintained by him.” 29
U.S.C. § 211(c); see also 12 NYCRR §
142-2.6(a) (“[e]very employer shall establish, maintain
and preserve for not less than six years, weekly payroll
records”). In the case of a default judgment, the
“defaulting defendant deprive[s] the plaintiff of the
necessary employee records required by the FLSA, thus
hampering [the] plaintiff's ability to prove his
damages” and, consequently, “a plaintiff may meet
his burden of proof by relying on recollection alone to
establish that he performed work for which he was improperly
compensated.” Kernes v. Global Structures,
LLC, No. 15-CV-659 (CM) (DF), 2016 WL 880199, at *6
(S.D.N.Y. Mar. 1, 2016) (internal citations and quotation
marks omitted) (alteration in original); Maldonado v. La
Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL
1669341, at *3 (S.D.N.Y. May 14, 2012), R&R
adopted by, Order dated Aug. 9, 2012 (Dkt. No.
district court retains discretion [on a motion for entry of a
default] . . . to require proof of necessary facts [, ] and
need not agree that the alleged facts constitute a valid
cause of action.” Finkel v. Romanowicz, 577
F.3d 79, 84 (2d Cir. 2009). If the unchallenged facts
establish defendant's liability, the court then
determines the amount of damages due. See Credit Lyonnais
Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d
Cir. 1999) (citing Transatlantic, 109 F.3d at 111)
(citation omitted). An inquest on damages by affidavit,
without an in-person hearing, may be conducted as long as the
court can ensure “a basis for the damages specified in
the default judgment.” Transatlantic, 109 F.3d
at 111; Xochimitl v. Pita Grill of Hell's Kitchen,
Inc., No. 14-CV-10234(JGK)(JLC), 2016 WL 4704917, at *5
(S.D.N.Y. Sept. 8, 2016), R&R adopted sub nom.,
2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) (“An affidavit
that sets forth the number of hours worked and pay received
is sufficient” to carry the employee's burden of
proving that he was not compensated for the work performed.)
Service of Process
were properly served. Fed.R.Civ.P. 4(e)(1) provides that
service may be effected in accordance with the service rules
of the state where the district is located or service is
made. “An affidavit of service is prima facie
proof of effective service.” Gore v. RBA Group,
Inc., No. 03-CV-9442, 2009 WL 884565, at *4 (S.D.N.Y.
March 27, 2009); Fifth Third Bank v. Mytelka, No.
05-MC-52, 2008 WL 3852170, at *2 (E.D.N.Y. Aug. 16, 2008).
New York Civil Practice and Law Rules (“CPLR”)
§ 311(a)(1) state that “personal service upon
‘any domestic  corporation' may be made upon
‘an officer, director, managing or general agent . . .
or to any other agent authorized by appointment or by law to
receive service.'” CIT Bank v. Dambra, No.
14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *3 (E.D.N.Y.
Sept. 25, 2015), R&R adopted by CIT Bank, N.A. v.
Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7430006
(E.D.N.Y. Nov. 20, 2015) (citing CPLR § 311(a)(1)).
Here, plaintiff submitted an affidavit of service stating
that a copy of the summons and complaint was served on Suki
Zhang personally, who is the general agent of DNC. (Affidavit
of Service, Ex. C, ECF No. 14-2 at 23.) Accordingly, service
on the corporate defendant DNC was in accordance with CPLR
Chen was also properly served. CPLR § 308(2) allows for
service of process on an individual “by delivering the
summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or
usual place of abode of the person to be served, ” and
“by either mailing the summons to the person to be
served at his or her last known residence or by mailing the
summons by first class mail to the person to be served at his
or her actual place of business, ” where the delivery
and mailing is effected “within twenty days of each
other.” Id. Here, plaintiff submitted an
affidavit of service stating that a copy of the summons and
complaint was served on Suki Zhang, who self-identified as
Ms. Chen's co-worker, at Chen's place of business.
(Ex. C, ECF No. 14-2 at 22.) Suki Zhang was described as
being “of suitable age and discretion.”
Id. A copy of the summons and complaint was sent by
regular first class mail to Ms. Chen at her place of business
on February 11, 2016. Id. Accordingly, service on
Ms. Chen was in accordance with CPLR § 308(2).
Statute of Limitations
brings six claims pursuant to both state and federal wage
laws. “The statute of limitations for an FLSA claim is
two years, unless the violation is ‘willful, ' in
which case it is three years.” Kuebel v. Black
& Decker Inc., 643 F.3d 352, 366 (2d Cir. 2011)
(citing 29 U.S.C. § 255(a)). When a defendant defaults,
courts consider the violation “willful” and apply
the three-year statute of limitations. Blue v. Finest
Guard Servs., Inc., No. 09 CV 133, 2010 WL 2927398, at
*11 (E.D.N.Y. June 24, 2010). The statute of limitations
starts to run when the employee begins to work for the
employer. See Wicaksono v. XYZ 48 Corp., No. 10 CIV.
3635 LAK JCF, 2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011),
R&R adopted by 2011 WL 2038973 (S.D.N.Y. May 24,
2011). The statute of limitations under NYLL is six years.
Id. (citing NYLL § 663(3) and Lanzetta v.
Florio's Enters., Inc., 763 F.Supp.2d 615, 622
defendants defaulted and, therefore, the three-year FLSA
statute of limitations applies. Plaintiff began working with
defendants in December 2013 and filed his complaint on
January 29, 2016. As such, both plaintiff's FLSA and NYLL
claims are timely.
Defendants are Covered by the FLSA and the NYLL
qualify for FLSA protection, a plaintiff must establish
either enterprise or individual coverage under the statute.
See Gomez v. El Rancho de Andres Carne de Tres Inc.,
No. 12-CV-1264 (CBA) (MDG), 2014 WL 1310296, at *3 (E.D.N.Y.
Mar. 11, 2014). The FLSA specifically applies only to
employees: (1) who are personally engaged in interstate
commerce or in the production of goods for interstate
commerce or (2) who are employed by an enterprise engaged in
interstate commerce or in the production of goods for
interstate commerce. See 29 U.S.C. § 206(a),
(b). An employee engages in commerce by “performing
work involving or related to the movement of persons or
things.” 29 C.F.R. § 779.103.
alleges that he worked in defendants' factory and also
installed and delivered products to defendants' customers
in New York, New Jersey and Connecticut. (Compl., ECF 1 at
¶21.) Accordingly, plaintiff has established that he was
engaged in commerce. See Herrera v. Tri-State Kitchen
& Bath, Inc., No.14-CV-1695 (ARR) (MDG), 2015 WL
1529653, at *3 (E.D.N.Y. Mar. 31, 2015) (concluding that
plaintiffs who regularly worked in New York and New Jersey
established individual coverage under the FLSA); Bowrin
v. Catholic Guardian Soc'y, 417 F.Supp.2d 449,
468-71 (S.D.N.Y. 2006) (concluding that plaintiffs who
regularly traveled across state lines in connection with
their employment could establish individual coverage).
also establishes enterprise coverage under the FLSA. An
“enterprise” is an entity engaged in interstate
commerce that has no less than $500, 000 in annual gross
volume of sales. See 29 U.S.C. § 203(s). An
enterprise is “engaged in commerce” where it
“has employees engaged in [interstate] commerce or in
the production of goods for [interstate commerce], or that
has employees handling, selling or otherwise working on goods
or materials that have been moved in or produced for
[interstate commerce].” 29 U.S.C. § 203(s)(1)(A).
DNC, the corporate defendant, is a cabinet manufacturing
company offering its goods and services, at least to
customers in New York, New Jersey and Connecticut. It has
gross annual sales exceeding $500, 000.000. Accordingly, it
is an enterprise engaged in interstate commerce and is
covered under the FLSA. See Boutros v. ...