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Romero v. Floris Construction, Inc.

United States District Court, E.D. New York

November 20, 2017

JORGE WUILSON ROMERO, on behalf of himself and others similarly situated, Plaintiff,
FLORIS CONSTRUCTION, INC., AND STAMATIS KOSTIKIDIS, in their individual and professional capacity, Defendants.


          Pamela K. Chen United States District Judge.

         Plaintiff Jorge Wuilson Romero (“Plaintiff”) brought this action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a), and New York Labor Law (“NYLL”) Sections 195(1), 195(3), and 740(2). Plaintiff seeks unpaid overtime wages, FLSA and NYLL liquidated damages, damages for failure to provide written notice of rate of pay, prejudgment interest, and attorney's fees and costs. Defendants Floris Construction, Inc. (“Floris”) and Stamatis Kostikidis (“Kostikidis”) (collectively “Defendants”) failed to appear or otherwise defend. After the Clerk of Court entered a default against Defendants (Dkt. 11), Plaintiff moved for a default judgment pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (Dkt. 12.)

         For the reasons set forth herein, Plaintiff's motion for default judgment is GRANTED. Plaintiff is awarded $18, 705.28 in damages, along with prejudgment interest, and may file a claim for attorney's fees and costs within fourteen (14) days of this order.


         Plaintiff worked for Defendants as a construction worker from April 2015 to May 2016. (Dkt. 15 at ¶ 3.) His responsibilities included painting and carpentry. (Dkt. 15 at ¶¶ 5.) During his employment with Defendants, Plaintiff regularly worked 48 hours a week and was not compensated for overtime work, despite complaining multiple times to Defendants about this issue. (Id. at ¶¶ 12-15.) Defendants compensated Plaintiff at a rate of $800 per week in 2015 and $1, 000 per week in 2016. (Id. at ¶ 13.) Defendants did not provide Plaintiff at any time with wage statements detailing dates worked, money received, and the employer's details. (Id. at ¶ 17-18.) Defendants did not provide Plaintiff with notice containing the rate and basis of his pay, the designated pay date, and the employer's name, address, and telephone number at the time of hiring or thereafter. (Id.) Plaintiff's job duties did not include “supervisory authority” or “managerial duties”, and he did not “exercise discretion over any matter.” (Id. at ¶ 19.)

         Defendant Floris is a construction company incorporated in New York, which employs more than 50 full-time construction workers, uses materials from outside New York State, and has an annual gross income of no less than $500, 000.[1] (Compl. at ¶¶ 35-42; Dkt. 15 at ¶ 7.) At the time of Plaintiff's employment, Kostikidis was the owner of Floris. (Dkt. 15 at ¶ 4.) Kostikidis was actively involved in the daily operations of Floris and had discretionary power over personnel decisions, including firing employees, wage issuance, maintenance of employment schedules, and overseeing the work of all employees, including Plaintiff. (Id. at ¶¶ 8-11.)

         On May 16, 2016, Plaintiff was physically battered by a co-worker after asking that the co-worker for a face mask. (Id. at ¶¶ 21-23.) The co-worker previously made numerous death threats to other Floris employees and made threatening statements against Plaintiff in the presence of other Floris employees. (Id. at ¶¶ 23-24.) After a failed attempt to contact Kostikidis during the incident, Plaintiff dialed 911, and the police arrived. (Id. at ¶¶ 26-27.) The next day, Kostikidis fired Plaintiff after learning that Plaintiff had disclosed the incident to the police. (Id. at ¶ 28.)


         Plaintiff filed his Complaint on August 1, 2016, on behalf of himself and others similarly situated, against Defendants. (Dkt. 1 (“Compl.”), at ¶¶ 1, 48.)[2] Plaintiff alleged among other things, that 1) Defendants failed to pay him overtime pursuant to the FLSA; 2) Defendants failed to pay him overtime pursuant to NYLL; 3) Defendants failed to provide proper notice to him of information required by NYLL at the time of hiring or thereafter; 4) Defendants failed to provide him with wage statements throughout his employment, as required by NYLL; and 5) Defendants retaliated against him in violation of NYLL Section 740 by firing him for reporting unsafe work conditions to the police. (Compl. at ¶¶ 52-82.)[3] Plaintiff claims that Defendants' violations were willful. (Id. at ¶ 58.)

         Service to Floris was satisfied by serving a summons on Nancy Dougherty, an authorized agent of Floris, on August 17, 2016. (Dkt. 6.) Kostikidis was served in two ways: first, the summons was affixed to his last known address on August 17, 2016; second, the summons was mailed via certified, first class mail, to his place of business on August 18, 2016. (Dkt. 7.) Both Defendants Floris and Kostikidis failed to respond to the Complaint. Based on Defendants' failure to answer (Dkt. 6; Dkt. 7), the Clerk of Court entered a certificate of default on December 27, 2016. (Dkt. 11.) On March 24, 2017, Plaintiff moved for default judgment against Defendants. (Dkt. 12.)


         I. Legal Standard for Default Judgment

         “A default judgment is ordinarily justified where a defendant fails to respond to the complaint.” S.E.C. v. Anticevic, No. 05-CV-6991, 2009 WL 4250508, at *2 (S.D.N.Y. Nov. 30, 2009) (citing Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984)). “Federal Rule of Civil Procedure 55 is the basic procedure to be followed when there is a default in the course of litigation.” City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (internal quotation marks and citation omitted). Rule 55 outlines two steps for entry of judgment against a party that fails to respond or defend: first, the clerk enters the party's default; second, a district court judge enters the default judgment. Fed.R.Civ.P. 55(b). “A district court is empowered under Rule 55(b)(2), in the exercise of its discretion, to ‘conduct hearings or make referrals' as may be necessary, inter alia[, ] to determine the amount of damages or establish the truth of the plaintiff's allegations.” Mickalis Pawn Shop, 645 F.3d at 129 (quoting Fed.R.Civ.P. 55(b)(2)).

         While “a default judgment deems all the well-pleaded allegations in the pleadings to be admitted, ” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 108 (2d Cir. 1997), the Court must “determine whether the [plaintiff's] allegations establish [the defendant's] liability as a matter of law.” Mickalis Pawn Shop, 645 F.3d at 137 (alterations in original) (internal quotation marks omitted) (quoting Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); see Coley v. Vannguard Urban Improvement Ass'n, Inc., No. 12-CV-5565, 2016 WL 4179942, at *3 (E.D.N.Y. Aug. 5, 2016).

         “An employee seeking to recover unpaid wages ‘has the burden of proving that he performed work for which he was not properly compensated.'” Leon v. Zita Chen, No. 16-CV-480, 2017 WL 1184149, at *3 (E.D.N.Y. Mar. 29, 2017) (quoting Jiao v. Chen, No. 03-CV-165, 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007)). Federal and state laws mandate that employers maintain “records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him.” Id. (quoting 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”). For default judgments concerning the FLSA and NYLL claims, “the plaintiffs recollection and estimates of hours worked are presumed to be correct.” Saucedo v. On the Spot Audio Corp., No. 16-CV-00451, 2016 WL 8376837, at *3 (E.D.N.Y. Dec. 21, 2016), report and recommendation adopted, No. 16-CV-451, 2017 WL 780799 (E.D.N.Y. Feb. 28, 2017) (quoting Gunawan v. Sushi Sake Rest, 897 F.Supp.2d 76, 83-84 (E.D.N.Y. 2012)).

         Once a court establishes liability within a default judgment, the court then calculates damages accordingly. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (noting that courts must conduct inquiries to determine damages rather than rely upon alleged amounts). A court may determine damages in a default judgment from affidavits alone so long as the court can establish a basis for the damages. Transatlantic, 109 F.3d at 111.

         II. Defendants Were Properly Served and Failed to Plead or Otherwise Defend

         Defendants were properly served. Service is proper if made in accordance with the laws of the state in which the district court is located or where service is made. Fed. R. Civ. P 4(e), 4(h). “An affidavit of service constitutes prima facie evidence of effective service.” Gore v. RBA Grp., Inc., No. 03-CV-9442, 2009 WL 884565, at *4 (S.D.N.Y. Mar. 27, 2009) (internal quotation marks and citation omitted).

         New York Civil Practice and Law Rules (“CPLR”) permit service to corporations by service “to any . . . agent authorized by appointment or by law to receive service.” Kelly v. Vesnaver, No. 16-CV-883, 2017 WL 2389506, at *3 (E.D.N.Y. Apr. 11, 2017), report and recommendation adopted, No. 16-CV-883 (DRH)(SIL), 2017 WL 2389602 (E.D.N.Y. June 1, 2017) (internal quotation marks omitted) (quoting N.Y. C.P.L.R. 311(a)(1)). Service on Defendant Floris was satisfied through service on Nancy Dougherty, an agent authorized by law to accept service on Floris's behalf. (Dkt. 6.) An affidavit of service certifies service to Floris. (Id.) The Court finds that Floris was properly served.

         CPLR permits service to individuals, among other options, by both “affixing the summons to the door of . . . the dwelling or usual place of abode within the state of the person to be served” and, within twenty days of affixing, “mailing the summons by first class mail to the person to be served at his or her actual place of business, ” so long as the envelope is marked “personal and confidential, ” without indication of its legal nature. Conway v. Am. Red Cross, No. CV 10-1859 SJF ARL, 2010 WL 4722279, at *3 (E.D.N.Y. Nov. 15, 2010) (internal quotations omitted). An affidavit of service certifies service to Kostikidis. (Dkt. 7.) Kostikidis was properly served by the combination of affixing the summons to Kostikidis's last known address and the next day's certified, first class mailing to Kostikidis's place of business. (Id.)

         III. Plaintiff's FLSA and NYLL Claims Are Timely and Proper

         Plaintiff's FLSA claim is timely and proper. “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)). Employers are considered to have willfully violated the FLSA if they “either knew or showed reckless disregard for the matter of whether its conduct was prohibited by” the FLSA. Young v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (internal quotation marks and citation omitted). An employer's violation is not willful if the employer “acts reasonably” or “acts unreasonably, but not recklessly” in “determining its legal obligation.” Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531-32 (2d Cir. 2004) (internal quotation marks and citation omitted). Further, on a default judgment, as with other unrebutted assertions, allegations of willful violations of the FLSA are sufficient to establish willfulness. See Coley, 2016 WL 4179942, at *6; Herrera v. Tri-State Kitchen & Bath, Inc., No. 14-CV-1695, 2015 WL 1529653, at *6 (E.D.N.Y. Mar. 31, 2015) (“Generally, courts have found that a defendant's default establishes willfulness.”).

         The Court finds that Plaintiff's FLSA claim is timely and proper since the relevant violation began in April 2015, and this case was filed in August 2016. Even though Plaintiff's claim is within the FLSA's normal two-year statute of limitations, Plaintiff provides specific factual allegations supporting Defendants' willfulness. Plaintiff complained multiple times to Defendant Kostikidis that he was not being paid properly. (Dkt. 15 at ¶ 15.) Plaintiff also alleges that Defendants “were aware, or should have been aware” that its employment practices were illegal. (Compl. at ¶ 58.) The Defendants, properly served, did not plead or ...

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