United States District Court, E.D. New York
CARMELO FLORES, on behalf of himself and others similarly situated, Plaintiff,
JOEL MARTINEZ d/b/a LA BELLA PIZZERIA, Defendant.
MEMORANDUM DECISION AND ORDER
M. COGAN, District Judge.
alleges that he was a restaurant worker at defendant's
pizzeria and that defendant failed to pay him overtime wages
as required by the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and corresponding provisions of the New York State Labor Law
(“NYLL”), §§ 190 and 650 et
seq. Before me is plaintiff's motion for default
judgment. The motion is granted in part.
to his complaint and affidavit in support of his motion for a
default judgment, plaintiff worked as a cook, cleaning
person, and food preparer from June of 2011 until November
13, 2016 for defendant Joel Martinez, who owns and operates a
pizzeria in Queens called “La Bella Pizzeria.”
During that period, plaintiff worked 72 hours per week and
received a fixed weekly salary of $720. He was paid only in
cash, and he never received overtime.
hornbook law that on a motion for default judgment, the
well-pleaded allegations of a complaint pertaining to
liability are accepted as true. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
155, 158 (2d Cir. 1992). In the instant case, the
complaint's allegations are sufficient to establish
equally well-settled that on a motion for a default judgment,
a defendant's default does not constitute an admission as
to the damages claimed in the complaint. See Finkel v.
Romanowicz, 577 F.3d 79, 83 n.6 (2d Cir. 2009). The
burden is on plaintiff to establish, by a reasonable
certainty, his entitlement to the relief requested. See
Greyhound Exhibitgroup, 973 F.2d at 158; see also
Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d
151, 155 (2d Cir. 1999). To determine damages, the court may
conduct an inquest, see Fed.R.Civ.P. 55(b)(2), or it
may rely on the affidavits and other documentary evidence
provided by plaintiff, obviating the need for a hearing on
damages, see Bricklayers & Allied Craftworkers Local
2 v. Moulton Masonry & Const., LLC, 779 F.3d 182,
189 (2d Cir. 2015).
is no need for an inquest here. Plaintiff's affidavit
constitutes adequate proof of his damages, and nothing would
be gained by having him appear to repeat his hours as set
forth in his affidavit. Plaintiff's proven damages are as
ELEMENT OF DAMAGES
Liquidated damages (NYLL § 198(1-a))
Failure to provide wage statements (NYLL §
Failure to post wage notice (NYLL §
disallowing the following claimed elements of damages: (1)
liquidated damages under the FLSA, see Jimenez v.
Computer Express Int'l Ltd., No. 13 Civ. 5657, 2015
WL 1034478 (E.D.N.Y. Mar. 10, 2015); and (2) spread of hours
premium under the NYLL, see Fermin v. Las Delicias
Peruanas Rest., Inc., 93 F.Supp.3d 19, 49 (E.D.N.Y.
2015), as plaintiff has submitted no calculation as to the
has also requested attorneys' fees in the amount of $8,
650. This amount consists of 27.5 hours of attorney hours,
billed at $300 per hour for a total of $8, 250, and $400 in
out-of-pocket expenses for the complaint filing fee. However,
counsel has provided no time records that would enable me to
determine whether 27.5 hours was a reasonable expenditure of
time based on the work performed. This is a fundamental
requirement of any fee application. “A fee applicant
bears the burden of demonstrating the hours expended and the
nature of the work performed through contemporaneous time
records that describe with specificity the nature of the work
done, the hours, and the dates.” Gunawan v. Sake
Sushi Rest., 897 F.Supp.2d 76, 95 (E.D.N.Y. 2012);
see also N.Y. Ass'n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1147 (2d Cir. 1983)
(“[C]ontemporaneous time records are a prerequisite for
attorney's fees in this Circuit.”). “Where
the documentation of hours is inadequate, the district court
may reduce the award accordingly.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983).
event, 27.5 hours appears to be an unreasonable expenditure
of time for a default judgment resolution on a wage
complaint, with 27.5 hours representing more than double what
courts in this district have previously found reasonable.
See, e.g., Ahmed v. Subzi Mandi, Inc., No.
13-CV-3353, 2014 WL 4101224, at *10 (E.D.N.Y. May 27, 2014)
(awarding 14.90 hours to solo practitioner in wage and hour
default), adopted by, 2014 WL 4101247 (E.D.N.Y. Aug.
18, 2014); Rosas v. Subsational, No. 11-CV-2811,
2012 WL 4891595, at *11 (E.D.N.Y. Sept. 11, 2012) (finding
8.7 hours “not only reasonable but reflecting] an
efficient use of [attorney's] time compared with similar
cases coming before the Court), adopted sub nom,
Rosas v. SBS 1310 Corp., 2012 WL 4866678 (E.D.N.Y.
Oct. 15, 2012); Blue v. Finest Guard Servs., Inc.,
No. 09-CV-133, 2010 WL 2927398, at *15 (E.D.N.Y. June 24,
2010) (awarding 10.36 hours to plaintiffs' attorney).
failure to provide any documentation at all and the
unreasonable number of hours expended without documentation
warrants an across-the-board 50% reduction of attorney's
fees to $4, 125. See Kirsch v. Fleet St., Ltd., 148
F.3d 149, 173 (2d Cir. 1998) (affirming district court's
reduction in attorneys' fees for ...