United States District Court, E.D. New York
DYANA TENORIO RIOS, on behalf of herself, FLSA Collective Plaintiffs, and the Class, Plaintiff,
B B Q CHICKEN DON ALEX, INC. d/b/a DON ALEX, POLLOS A LA BRAS AS 2014 CORP. d/b/a DON ALEX, JOHN DOE CORP. d/b/a DON ALEX, and DIAVI OSORES, Defendants.
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge
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.
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.
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.
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.
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.
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.
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 ...