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Rios v. B B Q Chicken Don Alex, Inc.

United States District Court, E.D. New York

January 2, 2018

DYANA TENORIO RIOS, on behalf of herself, FLSA Collective Plaintiffs, and the Class, Plaintiff,


          GLASSER, Senior United States District Judge

         Dyana Tenorio Rios ("Plaintiff) brings this this action against BBQ Chicken Don Alex, Inc. doing business as "Don Alex"; Polios a La Brasas 2014 Corp. doing business as "Don Alex"; John Doe Corp. doing business as "Don Alex"; and Diavi Osores ("Osores" and, collectively with the corporate defendants, the "Defendants"). Plaintiff alleges violations of the minimum wage and overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL"). Plaintiff also alleges that Defendants violated the NYLL's spread-of-hours premium provision and its wage-notice and wage-statement requirements. Upon Defendants' failure to appear or otherwise respond to the complaint, Plaintiff requested, and the Clerk of the Court entered, a certificate of default. ECF 14. Before the Court is Plaintiffs motion for default judgment, ECF 15, in which Plaintiff seeks an award in the amount of $100, 723.50, ECF 16-7. For the reasons set forth below, Plaintiffs motion is granted in part and denied in part.


         Plaintiff is an individual residing in Queens County, New York. ECF 1 ("Compl.") ¶ 5. Plaintiff alleges that Defendants operate three restaurants in Queens-two in Jackson Heights and one in Flushing-as a single integrated enterprise under the common trade name "Don Alex." Id. ¶ 6. Plaintiff further alleges that Osores is the owner and chief executive officer of each of the corporate defendants. Id. ¶ 8. According to the complaint, Osores exercises (and also delegates) the power to hire and fire employees; supervises and controls employees' work schedules and employment conditions; and determines the rate and method of employees' compensation. Id. Plaintiff alleges, in addition, that Osores is regularly present at the Don Alex restaurants and directly reprimands employees who are not properly performing their duties. Id. Plaintiff also alleges that, at all relevant times, each of the corporate defendants was an "enterprise engaged in commerce" within the meaning of the FLSA. Id. ¶ 9.

         According to the complaint, Defendants employed Plaintiff as a waitress at one of the Don Alex restaurants during three separate time periods: (i) December 2013 through August 2014; (ii) December 2014 through July 2015; and (iii) February 2016 through October 13, 2016. Id. ¶¶ 22- 25. Regarding her scheduled hours and hours worked during these time periods, Plaintiff alleges as follows:

(i) From December 2013 through August 2014, Plaintiff was scheduled to work from 2:00 p.m. to 11:00 p.m. on Monday, Tuesday, Thursday, Saturday, and Sunday, for a total of 45 hours per week. Id. ¶ 23. However, Plaintiff in fact worked until 12:00 a.m. each workday, for a total of 50 hours per week. Id.
(ii) From December 2014 through July 2015, Plaintiff was scheduled to work from 2:00 p.m. to 11:00 p.m. on Monday, Thursday, Friday, Saturday, and Sunday and from 10:00 a.m. to 7:00 p.m. on Tuesday, for a total of 54 hours per week. Id. ¶ 24. However, Plaintiff in fact always worked until 12:00 a.m. on Monday, Thursday, Friday, Saturday, and Sunday and until 7:30 p.m. on Tuesday, for a total of 59.5 hours per week. Id.
(iii) From February 2016 until October 13, 2016, Plaintiffs scheduled hours and hours worked were the same as they were from December 2014 through July 2015-i.e., she was scheduled to work 54 hours per week, but in reality she worked 59.5 hours per week. Id. ¶ 25.

         Plaintiff alleges that, throughout her employment, she was paid for her scheduled hours only and, moreover, that she was paid at the below-minimum-wage hourly rate of only $3.00 per hour, even for hours worked over 40 in a workweek. Id. ¶¶ 26-29. Plaintiff further alleges that she was not paid a spread-of-hours premium, id. ¶ 30, and that she never received any notice that Defendants were claiming a tip credit as to her compensation, id. ¶ 31. In addition, Plaintiff alleges that Defendants did not track the amount of tips received daily, in violation of the NYLL, and did not provide her with wage notices or proper wage statements as required by the NYLL. Id. ¶¶ 36-37.

         Plaintiff filed the complaint in this action on November 30, 2016. A copy of the summons and complaint were served on Defendants via personal service on Osores and through the New York Secretary of State as to the corporate defendants, on December 28, 2016 and February 3, 2017, respectively. ECF 6, 9, 10. With no answer timely filed by Defendants, Plaintiff requested entry of a certificate of default, which was entered by the Clerk of the Court on April 20, 2017. ECF 14. Plaintiff filed her motion for default judgment on May l2, 2Ol7, ECF 15, and served the motion on Defendants via first class mail on August 23, 2017, ECF 18. In the motion for default judgment, Plaintiff seeks the following as relief: $47, 861.75 as compensatory damages, for her unpaid wages; $47, 861.75 as New York State liquated damages; and $5, 000 in statutory penalties, for a total award of $100, 723.50. ECF 16-7. Defendants have not opposed or otherwise responded to the motion, nor have they appeared in this action.


         I. Liability

         Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for obtaining a default judgment: first, the Clerk of Court enters the party's default pursuant to Rule 55(a), and second, if the defaulting party fails to set aside the entry of default pursuant to Rule 55(c), the plaintiff must apply for a default judgment pursuant to Rule 55(b). See Finkel v. Universal Elec. Corp., 970 F.Supp.2d 108, 118 (E.D.N.Y. 2013) (citing Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir.1993)). "[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability[.]" Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Nonetheless, "it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law." Labarbera v. ASTC Labs., Inc., 752 F.Supp.2d 263, 270 (E.D.N.Y. 2010) (internal quotation marks omitted). Indeed, courts must "supervise default judgments with extreme care to avoid miscarriages of justice." Erwin DeMarino Trucking Co. v. Jackson, 838 F.Supp. 160, 162 (S.D.N.Y.1993)). The plaintiff has the burden of establishing entitlement to a default judgment, which is not obtained "as a matter of right simply because a party is in default." Finkel, 970 F.Supp.2d at 118-19.

         As discussed below, the unchallenged facts in the complaint establish Defendants' liability as to Plaintiffs minimum-wage and overtime claims, as well as Plaintiffs entitlement to statutory damages for Defendants' failure to comply with the NYLL's wage-notice and wage-statement requirements. The facts as alleged do not ...

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