United States District Court, S.D. New York
VENUS SANCHEZ on behalf of herself, all others similarly situated, and the Proposed New York Rule 23 Class, Plaintiff,
HUNT'S POINT TRIANGLE, INC., WILLIAM HANGAN, JOHN DOE and JANE DOE, Defendants.
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge
Venus Sanchez (“Sanchez”) brings this action on
behalf of herself and similarly situated current and former
employees (the “Covered Employees”), against
Hunt's Point Triangle, Inc. (“Hunt's
Point”), William Hangan (“Hangan”), John
Doe, and Jane Doe (collectively “Defendants”),
asserting claims for failure to pay minimum and overtime
wages pursuant to the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (“FLSA”), New York
Labor Law §§ 650, 190 et seq.
(“NYLL”), and New York Codes, Rules and
Regulations (“NYCRR”), 12 NYCRR § 146-1.6,
and for requiring kickbacks and failure to pay the required
spread of hours payment under NYLL. Plaintiff also seeks
conditional certification of her FLSA claims as a collective
action pursuant to 29 U.S.C. § 216(b) and certification
of a class action pursuant to Federal Rule of Civil Procedure
23. Plaintiff moves for default judgment against Defendants
pursuant to Federal Rule of Civil Procedure 55(b)(2). (Docket
Entry No. 35.) The Court has jurisdiction of this action
pursuant to 28 U.S.C. §§ 1331 and 1367.
Court has reviewed Plaintiff's unopposed submissions
carefully. For the reasons stated below, the Court denies
Plaintiff's motion for default judgment with respect to
liability on her FLSA claims and dismisses the case with
prejudice. Furthermore, the Court declines to exercise
supplemental jurisdiction of the remaining state claims.
about January 2005, Plaintiff Venus Sanchez began working as
an entertainer/exotic dancer at Hunt's Point, located in
Bronx, New York. (Compl. ¶¶ 7, 20.) Defendants
William Hangan, John Doe, and Jane Doe are the owners,
directors, and/or officers of Hunt's Point. (Id.
¶ 13.) Defendants also engage in restaurant operations
at Hunt's Point by serving food and beverages to their
patrons. (Id. ¶ 30.) Sanchez estimates that
Hunt's Point grossed at least $500, 000 per year in
revenue, and claims that Defendants operate in interstate
commerce by selling liquor which has traveled across state
lines. (Id. ¶¶ 15, 29.)
worked at Hunt's Point from January 2005 until April
2013. (Id. ¶¶ 7, 20, 21.) Plaintiff
alleges that she “and all others similarly situated,
and members of the proposed New York Rule 23 Class have not
been paid minimum wage by Defendants.” (Id.
¶ 22.) Sanchez further asserts, “[t]his claim
arises from Defendants' willful violation of the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.,
for failure to pay a minimum wage and failure to pay for
hours in excess of 40 hours a week to Plaintiff.”
(Id. ¶ 54.) Defendants also required Sanchez
and Covered Employees to pay a “facilities use
fee” of thirty dollars at the beginning of each shift
and requested, demanded, and received a part of
Plaintiff's wages and gratuities through fines and
penalties for lateness and misconduct. (Id.
¶¶ 1, 23-25, 73.)
filed the instant action on May 15, 2015. (See
Compl., Docket Entry No. 1.) Sanchez served Hunt's Point
with the Summons and Complaint on June 29, 2015 through New
York's Secretary of State. (See Docket Entry No.
6.) Service was attempted on Hangan at the Hunt's Point
address on June 6, 2015 and was returned unexecuted.
(See Docket Entry No. 9.) The process server was
informed by neighbors that the “Hunt's Point
Triangle” enterprise was out of business. (See
Docket Entry No. 37-1 at ECF page 11.) Plaintiff later mailed
the summons to Hangan at the address for Hunt's Point.
(See Docket Entry No. 24.) Defendants failed to make
any formal appearance in this action or file any responsive
attempted to file a motion for default judgment on January
14, 2016, without leave of the Court. (See Docket
Entry No. 10.) On May 24, 2016, the Court terminated the
Motion for Default Judgment without prejudice and construed
the motion as a notification to the Court of the
Plaintiff's intention to seek a default judgment.
(See Docket Entry No. 14.) On May 24, 2016, the
Court stated that it accepted the initial motion as a
statement of intent to seek judgment by default in favor of
Plaintiff, individually, and that the following requirements
applied to any renewed motion practice:
 that Plaintiff's motion must be accompanied by
evidence, in admissible form, of such facts as she would have
proffered to meet her burden of proof on her direct case had
a trial been held in this action and a memorandum of law . .
.  that such motion for default judgment must be served on
the defendants and must be accompanied by copies of the
Clerk's Certificate and of proof of service of the
summons and complaint and the motion for default judgment as
provided by the undersigned's Individual Practice Rules .
. .  that said motion shall be briefed in accordance with
the schedule set forth in Local Civil Rule 6.1 and will be
taken on submission unless otherwise directed by the Court;
and . . .  Plaintiff must serve a copy of this Order on
defendants and file proof of such service within fourteen
(14) days from the date hereof.
October 18, 2016, the Court received Plaintiff's second
motion for default judgment accompanied by an affirmation and
exhibits, none of which addressed the merits of
Plaintiff's claim. (See Docket Entry No. 22,
23.) The court again denied the motion without prejudice,
directing Plaintiff to comply with the requirements set forth
in the May 24, 2016 Order. (See Docket Entry No.
26.) In this later Order, the Court noted that the second
motion for default judgment (Docket Entry No. 22) was not
accompanied by any relevant evidence or memorandum of law as
directed by the May 24, 2016 Order. (See Docket
Entry No. 26.) Plaintiff was further directed to re-file any
motion for default judgment by January 20, 2017 in accordance
with the requirements set forth in the May 24, 2016 Order,
and that failure to do so would result in dismissal of the
case with prejudice. (Id.) Plaintiff filed a
memorandum of law in support of default judgment (Docket
Entry No. 27), and after a filing error (see Docket
Entry No. 31) the Court granted an extension of time to
re-file the motion. (Docket Entry No. 32.) The third and
current motion for default judgment and associated memorandum
of law were filed along with an attorney's affirmation in
support of the motion and several documents relating to
service as exhibits, on August 21, 2017. (See Docket
Entry Nos. 35-37.)
determining whether to grant a motion for default judgment,
courts in this circuit consider three factors: “1)
whether the defendant's default was willful; 2) whether
defendant has a meritorious defense to plaintiff's
claims; and 3) the level of prejudice the non-defaulting
party would suffer as a result of the denial of the motion
for default judgment.” Mason Tenders Dist. Council
v. Duce Const. Corp., No. 02-CV-9044-LTS-GWG, 2003 WL
1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also
Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455
(2d Cir. 2013) (applying these factors in review of a lower
court's grant of default judgment). Once the court
determines that these factors favor the plaintiff, it must
decide whether the plaintiff has pleaded facts supported by
evidence sufficient to establish the defendant's
liability with respect to each cause of action asserted.
See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61,
65 (2d Cir. 1981); see also Gunawan v. Sake Sushi
Rest., 897 F.Supp.2d 76, 83 (E.D.N.Y. 2012) (“[A]
defendant's default does no more than concede the
complaint's factual allegations.” (citations
omitted)). The Court accepts as true all of the factual
allegations of the complaint, except those relating to
damages. Au Bon Pain Corp., 653 F.2d at 65.
FLSA minimum wage and overtime provisions apply to employees
who are “(1) personally engaged in interstate commerce
or in the production of goods for interstate commerce . . .
or (2) [were] employed in an enterprise engaged in interstate
commerce or in the production of goods for interstate
commerce.” Rodriguez v. Almighty Cleaning,
Inc., 784 F.Supp.2d 114, 120 (E.D.N.Y. 2011) (alteration
in original) (citation omitted); see also 29 U.S.C.
§§ 206(a), 207(a). Under the FLSA, employees are to
be paid a minimum wage, 29 U.S.C. § ...