United States District Court, S.D. New York
ALEJANDRO BARRAGAN MARTINEZ, individually and on behalf of others similarly situated, Plaintiff,
DANNYS ATHENS DINER INC., et al., Defendants.
OPINION AND ORDER
RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE.
October 23, 2017, trial commenced on Plaintiffs seven causes
of action: (1) minimum-wage violations under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 206; (2)
minimum-wage violations under the New York Labor Law
("NYLL") § 652; (3) unpaid overtime under the
FLSA, 29 U.S.C. § 207; (4) unpaid overtime under 12
N.Y.C.R.R. § 146-1.4; (5) violations of the
spread-of-hours requirement under 12 N.Y.C.R.R. §
146-1.6(a); (6) failure to provide required annual written
disclosures in violation of NYLL § 195 (effective Apr.
9, 2011); and (7) failure to provide pay stubs with required
disclosures in violation of NYLL § 195(3). At the close
of evidence, Plaintiff agreed to dismiss voluntarily his
minimum-wage claims. The Court then granted Plaintiffs motion
for judgment as a matter of law on all of his other causes of
action, except the FLSA overtime claim, for which a jury
question remained as to whether Dannys Athens Diner Inc.
(doing business as "Danny's Athens Restaurant")
had engaged in interstate commerce and whether it had annual
sales of more than $500, 000 per year during the relevant
period. See 29 U.S.C. § 203 (setting forth
threshold requirements for enterprise coverage). The jury
returned a verdict in favor Plaintiff on both of those issues
and also found that Defendants' violations of state and
federal law were willful.
November 16, 2017, Plaintiff filed a letter in which he
identified an erroneous stipulation of law in the
parties' joint proposed pre-trial order as to the method
of calculating an employee's regularly hourly rate under
the NYLL, the correction of which would result in lower
overtime damages for the period from September 23, 2010
through December 31, 2010 but would also support a
minimum-wage claim. (Doc. No. 58.) Accordingly, Plaintiff
moved to reinstate his NYLL minimum-wage claim for that
period. (Doc. Nos. 58, 62.) To address these issues, the
Court held a conference on November 29, 2017, at which
Defendants did not object to either the new method of
calculation or the reinstatement of the minimum-wage claim.
Fed.R.Civ.P. 15(b)(2), "[w]hen an issue not raised by
the pleadings is tried by the parties' express or implied
consent, it must be treated in all respects as if raised in
the pleadings.'" Moreover, "[a] party may
move-at any time, even after judgment-to amend the pleadings
to conform them to the evidence and to raise an unpleaded
issue." The law is clear that the "unpleaded
issue" may include a cause of action.
Sherwin-Williams Co. v. JB Collision Servs., Inc.,
186 F.Supp.3d 1087, 1096-97 (S.D. Cal. 2016) (citing 6A
Wright & Miller, Fed. Prac. & Proc. § 1493 (3d
the Court is skeptical that unpleaded claims, or claims that
were pleaded but dismissed, generally can or should be
reinstated after a jury verdict, the Court will grant
Plaintiffs request in the unique circumstances of this case.
First, Defendant does not object to Plaintiffs request, which
largely redounds to Defendant's benefit. Second, the
evidence relating to Plaintiffs minimum wage claim was fully
developed in discovery and thoroughly presented to the jury
at trial. Based on that evidence, no reasonable juror could
have found that Plaintiff was paid the minimum wage for the
relevant period, or that Defendants met their burden of
demonstrating that they acted in "good faith, " as
required to avoid liquidated damages. See Galeana v.
Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 317
(S.D.N.Y. 2014). Thus, the Court grants Plaintiffs motion to
reinstate his minimum-wage claim. See Fed.R.Civ.P.
15(b)(2); Sherwin-Williams Co. v. JB Collision Servs.,
Inc., 186 F.Supp.3d 1087, 1097 (S.D. Cal.2016).
Court now grants judgment as a matter of law on Plaintiffs
minimum-wage claim, elaborates on the basis for its judgment
as a matter of law on his other claims, and determines
Plaintiffs damages. For the reasons stated on the record and
set forth below, the Court concludes that Plaintiff is
entitled to a final judgment of $788, 491.10 plus reasonable
Rule of Civil Procedure 50 provides that after a party has
been fully heard on an issue during a jury trial, the court
may resolve that issue against that party if the court
concludes that a reasonable jury would lack a legally
sufficient basis to find for the party on that issue.
See Fed. R. Civ. P. 50(a). "The same standard
that applies to a pre-trial motion for summary judgment
pursuant to Fed.R.Civ.P. 56 also applies to motions for
judgment as a matter of law during or after trial pursuant to
Rule 50." Piesco v. Koch, 12 F.3d 332, 341 (2d
Cir. 1993). A district court may grant a motion for a
judgment as a matter of law if "the evidence is such
that, without weighing the credibility of the witnesses or
otherwise considering the weight of the evidence, there can
be but one conclusion as to the verdict that reasonable
[persons] could have reached." Cruz v. Local Union
No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148,
1154-55 (2d Cir. 1994) (citation and internal quotation marks
2010, the minimum wage under New York law was $7.25 per hour.
See NYLL § 652(1) (incorporating federal
minimum where higher); Gamero v. Koodo Sushi Corp.,
No. 15-cv-2697 (KPF), 2017 WL 4326116, at *12 (S.D.N.Y. Sept.
28, 2017). Before January 1, 2011, the NYLL calculated the
regular hourly rate for workers on a weekly salary by
dividing the salary by the number of hours worked each week.
See Romero v. Anjdev Enterprises, Inc., No. 14 CIV.
457 (AT), 2017 WL 548216, at *10 (S.D.N.Y. Feb. 10, 2017); 12
N.Y.C.R.R. § 137-3.5 (repealed 2011). At trial, the
unrebutted testimony was that in 2010 Plaintiff worked 84
hours per week at a rate of $550 per week. (Trial Tr. 24.)
Thus, from September 23, 2010 through December 31, 2010,
Plaintiff was paid approximately $6.55 per hour, 70 cents
below the minimum wage. Accordingly, Defendants are liable
for minimum-wage damages under the NYLL.
the FLSA and the NYLL require employers to pay a wage premium
for overtime work. The requirement under both statutes is
identical; once an employee works 40 hours in a week, he must
be paid "one and one-half times [his] regular rate'*
for all excess hours. Dejesus v. HF Mgmt. Servs.,
LLC, 726 F.3d 85, 88 (2d Cir. 2013) (quoting 29 U.S.C.
§ 207(a)(1)) (FLSA); Salustio v. 106 Columbia Deli
Corp., No. 15 Civ. 6857 (GWG), 2017 WL 3736695, at * 10
(S.D.N.Y. Aug. 30, 2017) (NYLL).
trial, Plaintiff testified that he worked for Defendants from
5:00 a.m. to 5:00 p.m. seven days a week from September 2010
to June 2016 (i.e., 84 hours per week), and the same hours
six days a week thereafter (i.e., 72 hours per week), but
never received overtime. (Trial Tr. 24.) Defendants, for
their part, put on virtually no evidence to rebut that
testimony. Indeed, the two defense witnesses tended to
corroborate, rather than contradict, Plaintiffs allegations.
For example, Maximo Pacheco, one of Plaintiffs co-workers,
testified that typically, when he arrived at the restaurant
at 6:00 a.m., Plaintiff was already there preparing the
restaurant to open. (Trial. Tr. 77.) Pacheco further stated
that when he finished work at 4:00 p.m., Plaintiff typically
stayed at the restaurant longer to clean up. (Trial Tr. 83.)
On cross-examination, Pacheco testified that he himself
worked 10 hours a day, seven days a week, and that workers at
Danny's "are not paid overtime.'"
(Id. at 84.) As for the other defense witness,
waitress Dolores Zarantes, she confirmed that Plaintiff was
always at the restaurant when she arrived at 7:00 a.m.,
except "maybe five times" over the course of two
years, when Plaintiff came in after her. (Id. at
66.) Zarantes did not say what time of day Plaintiff left on
those five occasions. Nevertheless, at the close of evidence,
Plaintiff agreed to dismiss his overtime claim with respect
to those five days, so as to eliminate any potential dispute
of fact about overtime. (Trial Tr. 121.) Apart from those
five days, the undisputed testimony at trial showed that
Plaintiff worked substantially in excess of 40 hours every
week and that Defendants failed to pay him an overtime
premium. Accordingly, the Court finds Defendants liable for
unpaid overtime under the FLSA and the NYLL.
the New York Labor Law, employees are entitled to receive one
additional hour's pay at the minimum hourly wage rate for
any day on which the employee's spread of hours exceeds
ten. See 12 N.Y.C.R.R. § 146-1.6;
Gamero, 2017 WL 4326116, at *12. At trial, Defendants did
not dispute that they failed to pay Plaintiff spread-of-hours
wages. And as discussed above, apart from the five days
alluded to by Zarantes, Defendants failed to rebut Plaintiffs
testimony that he worked from 5:00 a.m. to 5:00 p.m. - a
spread of 12 hours every workday. ...