Cooper v. Fire & Ice Trucking, Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DEMITRUS COOPER, on behalf of

himself and others similarly

situated in the proposed FLSA

Collective Action,

Plaintiff,

MEMORANDUM & ORDER

- against – 23-CV-1675 (KAM)(TAM)

FIRE & ICE TRUCKING, CORP., and

CHERYL OWENS,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Demitrus Cooper (“Cooper” or “Plaintiff”) brought

this action against Defendants Fire & Ice Trucking, Corp., and

Cheryl Owens (together, “Defendants”) pursuant to the Fair Labor

Standards Act (“FLSA”), 29 U.S.C § 201 et seq. and the New York

State Labor Law (“NYLL”) § 190 et seq. Plaintiff seeks unpaid

wage and overtime pay, unpaid spread-of-hours pay, FLSA liquidated

damages, NYLL liquidated damages, damages for failure to provide

written notice of rate of pay or wage statements, attorneys’ fees

and costs, and pre- and post-judgment interest. (See generally

ECF No. 1, Complaint (“Compl.”).) Defendants failed to appear or

otherwise defend this action. After the Clerk of the Court entered

default against defendants pursuant to Rule 55(a) of the Federal

Rules of Civil Procedure, Plaintiff filed the instant motion for

entry of default judgment. For the reasons stated herein,

Plaintiff’s motion for entry of a default judgment is GRANTED in

part and DENIED in part pursuant to Rule 55(b)(2) of the Federal

Rules of Civil Procedure. Plaintiff is awarded $68,278.73 in

damages, $13,379.38 in pre-judgment interest, $6,279.38 in

attorneys’ fees, and $749.00 in costs, plus post-judgment interest

as prescribed in 28 U.S.C. § 1961.

BACKGROUND

The following facts are taken from Plaintiff’s Complaint,

Motion for Default Judgment, supporting memorandum, and supporting

declaration and affidavits. (See Compl.; ECF No. 26, Mem. in Supp.

of Mot. for Default J. (“Mem.”); ECF No. 27, Decl. of Jason Mizrahi

(“Mizrahi Decl.”); ECF No. 28, Aff. of Demitrus Cooper (“Cooper

Aff.”); ECF No. 33, Supplemental Aff. of Demitrus Cooper (“Cooper

Supp. Aff.”).) Given Defendants’ default, the Court accepts as

true all well-pleaded factual allegations in the Complaint, except

as to damages. See City of New York v. Mickalis Pawn Shop, LLC,

645 F.3d 114, 137 (2d Cir. 2011).

I. Factual Background

Plaintiff alleges that Defendant Fire & Ice Trucking, Corp.

(“Fire & Ice”) is a New York corporation with its principal place

of business in Brooklyn, New York. (Compl. at ¶¶ 9–10.) Fire &

Ice has employees engaged in commerce and an annual gross sales

volume of at least $500,000. (Id. at ¶ 11.) Plaintiff also

alleges that Defendant Cheryl Owens (“Owens”) has “operational

control over,” has an ownership interest in, and “control[s]

significant functions of” Fire & Ice. (Id. at ¶¶ 14-18, 25.)

Plaintiff Cooper worked as a driver and general worker at Fire &

Ice, which the Complaint describes as a courier company. (Id. at

¶ 6.) Cooper worked for Defendants from May 2017 to December 2018,

again from July 2021 to December 2021, and again from June 2022 to

January 4, 2023. (Id.; see also ECF 33-1, Cooper Supp. Aff.

Ex. A.)

According to Plaintiff’s complaint, Defendants had the power

to hire and fire Plaintiff, control the terms and conditions of

Plaintiff’s employment, and determine the rate and method of

Plaintiff’s compensation. (Compl. at ¶ 32.) Further, both Fire

& Ice and Owens “possessed substantial control over” Plaintiff’s

working conditions and the policies and practices regarding

Plaintiff’s employment and compensation. (Id. at ¶ 27.) Defendant

Owens set employees’ schedules and maintained employee records.

(Id. at ¶ 17.) Plaintiff was not required to keep track of his

time and is unaware of Defendants having used sign-in sheets, punch

cards, or any other time tracking methods that would have reflected

the actual number of hours he worked. (Id. at ¶ 44.)

From May 1, 2017, through December 31, 2018, Cooper worked at

Defendants’ courier company five days per week, eleven hours per

day, for approximately 55 hours per week, each week. (Compl. at

¶ 36; see also Cooper Supp. Aff. Ex. A.) Cooper worked the same

schedule, for 55 hours per week, each week, between July 1, 2021,

and Decembre 31, 2021. (Compl. at ¶ 37; see also Cooper Supp.

Aff. Ex. A.) Cooper also worked 55 hours per week, on the same

schedule, between June 1, 2022, through September 1, 2022. (Compl.

at ¶ 38; see also Cooper Supp. Aff. Ex. A.) Between October 1,

2022, and January 4, 2023, Cooper worked between six and seven

days per week, eleven hours per day, for approximately 71.5 hours

per week. (Compl. at ¶ 39; see also Cooper Supp. Aff. Ex. A.)

During all relevant periods that Cooper worked for Defendants, he

was “paid a flat salary of $750 per week.” (Compl. at ¶ 40.)

Defendants required Plaintiff to work in excess of 40 hours

per week, but never paid an overtime premium of one- and one-half-

times the regular rate of pay for those hours worked in excess of

40. (Id. at ¶ 41.) Defendants also did not provide Plaintiff

wage statements in accordance with Section 195(3) of the NYLL.

(Id. at ¶ 46.) Finally, Defendants did not give Plaintiff notice

of his rates of pay, Defendants’ courier company’s regular pay

day, or “such other information” required by Section 195(1) of the

NYLL. (Id. at ¶ 47.)

Plaintiff’s work for Fire & Ice consisted of loading a vehicle

at the company’s dispatch location, driving the vehicle within New

York City to deliver packages, and then returning the vehicle to

the dispatch location. (Cooper Supp. Aff. at ¶ 5.) Plaintiff’s

typical route was in Harlem, NY, and his duties and

responsibilities did not require him to travel outside the state

of New York. (Id. at ¶¶ 8-10.)

II. Procedural Background

Plaintiff commenced this action against Defendants Fire & Ice

and Owens, as well as a third defendant, Pedro J. Fortunato, on

March 5, 2023. (See generally Compl.) Plaintiff subsequently

withdrew the claims against Fortunato via a notice of voluntary

dismissal entered pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), which

was so ordered by the Court on May 5, 2023. (ECF No. 14.) The

first four counts of Plaintiff’s Complaint allege violations of

the FLSA’s and the NYLL’s minimum wage and overtime regulations.

(See Compl. at ¶¶ 53–72.) The next three counts allege violations

of the NYLL’s wage notice, wage statement, and spread-of-hours pay

regulations. (See id. at ¶¶ 73–83.) Plaintiff seeks certification

of this action as a FLSA collective action, declaratory relief,

unpaid wages, damages, pre-judgment and post-judgment interest,

attorneys’ fees, and costs. (See id. at pp. 13–14.)

On March 8, 2023, the Clerk of Court issued three summons for

each defendant at each of the following addresses: (1) 300 Maspeth

Ave., Brooklyn, NY 11211; (2) 540 Osborn St., #1D, Brooklyn, NY

11212; (3) 514 Crescent St., Brooklyn, NY 11208. (ECF No. 5.) On

March 21, 2023, Plaintiff filed an affidavit of service stating

that the summons and Complaint had been served on Fire & Ice

through the New York Secretary of State on March 20, 2023. (ECF

No. 9.) On March 22, 2023, Plaintiff filed an affidavit of service

stating that the summons and Complaint had been served on Owens

via personal service at 540 Osborn St., #1D, Brooklyn, NY 11212 on

March 17, 2023. (ECF No. 10.) Subsequently, on April 17, 2023,

Plaintiff filed a request for a certificate of default against

Defendants Owens and Fire & Ice, based on their failure to answer

or otherwise respond to the complaint. (ECF No. 11.) The Clerk

of Court entered a certificate of default against both defendants

on April 21, 2023. (ECF No. 12.)

As previously mentioned, on May 5, 2023, Plaintiff filed a

notice of voluntary dismissal without prejudice as to Defendant

Pedro J. Fortunato, which was accepted by the Court on the same

day. (ECF Nos. 13, 14.) Subsequently, Plaintiff filed requests

for several extensions of time to file a motion for default

judgment before ultimately filing the motion on October 2, 2023.

(ECF Nos. 15-22.) On December 19, 2023, the Court denied

Plaintiff’s motion without prejudice, noting that the attached

affidavit in support was from an individual, purporting to be the

plaintiff, who was not a party to the case, and referred to an

employer also not a party to the case. (Docket Order dated

December 19, 2023.) The Court Ordered Plaintiff to Show Cause as

to why Plaintiff’s counsel’s conduct in the matter did not violate

Fed. R. Civ. P. 11(b), and should not be subject to sanctions.

(Id.) Plaintiff’s counsel responded to the Order to Show Cause on

January 5, 2024, and the Court “reluctantly excuse[d] the errors

made in counsel’s filing, but caution[ed] counsel that future non-

compliance with Rule 11 is likely to result in sanctions.” (Docket

Order dated January 5, 2024.)

Plaintiff subsequently filed his renewed motion and corrected

supporting materials on January 11, 2024, and served the Defendants

with the motion papers. (See ECF No. 25, Mot. for Default J.;

Mem.; Mizrahi Decl.; Cooper Aff.) On May 22, 2024, the Court

ordered Plaintiff to submit a supplemental affidavit “providing

additional factual information to allow the Court to determine

whether Plaintiff falls within the Motor Carrier Act of 1935

(‘MCA’) Exemption to the FLSA and NYLL,” along with an alternate

damages spreadsheet calculating Plaintiff’s damages “based on the

method prescribed in 12 N.Y. Comp. Codes R. & Regs. § 142-2.16.”

(Docket Order dated May 22, 2024.) Plaintiff filed the

supplemental response on June 25, 2024, (Cooper Supp. Aff.), and

filed proof of service of the supplemental submission on the

Defendants on June 26, 2024, (ECF No. 34, Affidavit of Service).

LEGAL STANDARD

Pursuant to Rule 55, courts follow a two-step process to enter

default judgment. City of New York v. Mickalis Pawn Shop, LLC,

645 F.3d 114, 128 (2d Cir. 2011). First, when the defendant fails

to plead or otherwise defend and that failure is shown by affidavit

or otherwise, the clerk of court enters the defendant’s default.

See Fed. R. Civ. P. 55(a). A court considers an entry of default

against a party to be an admission of all the well-pleaded

allegations in the complaint regarding liability. Cement &

Concrete Workers Dist. Council Welfare Fund v. Metro Found.

Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). Second, if

the defaulting party fails to appear or move to set aside the entry

of default under Rule 55(c), the opposing party may move the court

to enter a default judgment to establish liability and damages.

See Fed. R. Civ. P. 55(b)(2). Before entering a default judgment,

the court “must ensure that (1) jurisdictional requirements are

satisfied; (2) the plaintiff took all the required procedural steps

in moving for default judgment; and (3) the plaintiff's

allegations, when accepted as true, establish liability as a matter

of law.” Jian Hua Li v. Chang Lung Grp. Inc., No. 16-CV-6722 (PK),

2020 WL 1694356, at *4 (E.D.N.Y. Apr. 7, 2020) (citations omitted).

The court also must find a basis for the damages specified in the

default judgment. Jeremiah v. 5 Towns Jewish Times, Inc.,

No. 1:22-cv-5942 (NGG), 2023 WL 5703698, at *3 (E.D.N.Y. Sept. 5,

2023).

Although the court accepts as true all well-pleaded

allegations in the complaint, the court must still ensure the

allegations provide a basis for liability and relief, and the court

has discretion to require further proof of necessary facts. Finkel

v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). If the unchallenged

facts establish the defendant’s liability, the court determines

the amount of damages due. See Credit Lyonnais Sec. (USA), Inc.

v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The court may

determine damages without an in-person hearing based on the

plaintiff’s affidavits so long as it can ensure a basis for the

damages specified in the default judgment. Transatlantic Marine

Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc.,

109 F.3d 105, 111 (2d Cir. 1997).

DISCUSSION

I. Jurisdiction

The Court may not enter a default judgment unless it has both

subject-matter jurisdiction over the action and personal

jurisdiction over each defendant. See Covington Indus., Inc. v.

Resintex A.G., 629 F.2d 730, 732 (2d Cir. 1980) (“A judgment

entered against parties not subject to the personal jurisdiction

of the rendering court is a nullity.”).

A. Subject-Matter Jurisdiction

Federal district courts have original subject-matter

jurisdiction over all civil actions “arising under” the laws of

the United States. 28 U.S.C. § 1331. The FLSA, a federal statute,

creates the cause of action for the first and second counts in

Plaintiff’s Complaint. (See Compl. at ¶¶ 53–62.) Nothing in the

record suggests that Plaintiff’s FLSA claims are immaterial, made

solely for the purpose of obtaining jurisdiction, or wholly

insubstantial or frivolous.1 See A&B Alt. Mktg. Inc. v. Int’l

Quality Fruit Inc., 35 F.4th 913, 915 n.2 (2d Cir. 2022) (listing

foregoing reasons why subject-matter jurisdiction may not exist

even where the complaint contains claims technically arising under

federal law). Plaintiff’s Complaint thus arises under the laws of

the United States, which gives the Court federal question subject-

matter jurisdiction over this action. See, e.g., Rocha v. Bakhter

Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 345 (E.D.N.Y.

2014).

The Court has supplemental jurisdiction over Plaintiff’s NYLL

claims. Supplemental jurisdiction extends to state law claims

that so relate to the claims within the court’s original

jurisdiction that they form part of the same case or controversy.

28 U.S.C. § 1367(a). Here, supplemental jurisdiction clearly

extends to Plaintiff’s third and fourth claims, which seek to

recover for unpaid minimum wages and overtime premiums under the

NYLL, because they virtually overlap with Plaintiff’s first two

claims, which seek to recover for closely related violations under

1 The Court notes that a subset of Plaintiff’s FLSA claims are time-barred, as

“[t]he FLSA's limitations period for minimum wage and overtime claims is two

years, unless the employer's violation is willful, in which case the period is

three years.” Mendez v. MCSS Rest. Corp., 564 F. Supp. 3d 195, 208 (E.D.N.Y.

2021); see also 29 U.S.C. § 255(a). Plaintiff filed his claim on March 5, 2023,

so any claims prior to March 5, 2020, would be time-barred under the FLSA. (See

Compl.) Nonetheless, Plaintiff’s claims beginning in July 2021 through January

2023 are timely, and provide federal question jurisdiction for this action.

the FLSA. (See Compl. at ¶¶ 63-72.) Plaintiff’s fifth through

seventh claims, which allege violations of the NYLL’s wage notice,

wage statement, and spread-of-hours pay regulations under the

NYLL, (see id. at ¶¶ 73–83), lack precise analogues in the FLSA.

Still, those claims form part of the same case or controversy

because “[r]esolving all of these claims requires[s] considering

evidence of the hours Plaintiff worked, the rate and method by

which he was paid, the amounts he was paid, and the parties'

records (or lack thereof) on these subjects.” See Jenkins v.

Yellowstone Props., Inc., No. 17-CV-7764 (VEC), 2019 WL 4392955,

at *2 (S.D.N.Y. Sept. 12, 2019) (citing Lyndonville Sav. Bank &

Tr. Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000)).

The Court ultimately lacks subject-matter jurisdiction over,

and dismisses without prejudice, Plaintiff’s wage notice and wage

statement claims under the NYLL, (see Compl. at ¶¶ 73–79), however,

because Plaintiff failed to allege facts to establish his standing

to pursue those claims in federal court. Article III of the

federal Constitution restricts federal court power to hearing

“cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. A

“case” or “controversy” cannot exist if the plaintiff lacks a

personal stake, or “standing.” TransUnion LLC v. Ramirez, 594

U.S. 413, 423 (2021). To have Article III standing, the plaintiff

must have suffered an injury-in-fact likely caused by the

defendant’s allegedly unlawful conduct and redressable by a

favorable court decision. Id. The injury must be “concrete and

particularized,” id., which means some specific harm to the

plaintiff beyond the defendant’s technical violation of a

statutory mandate, id. at 440. Standing is not “dispensed in

gross.” Id. at 431. Rather, the plaintiff must show standing

separately for each claim he or she presses. Id.

Here, Plaintiff does not link any legally cognizable injury

that he personally experienced to Defendants’ failure to provide

wage statements and wage notices under the NYLL. The Complaint

merely alleges that Defendants failed to comply with these

statutory mandates. (See Compl. at ¶¶ 75, 78.) Plaintiff Cooper’s

supporting affidavit elaborates that “Defendants’ failure to

provide accurate wage notices and accurate wage statements denied

me of my statutory right to receive true and accurate information

about the nature of my employment and related compensation

policies,” however, he still fails to establish an injury-in-fact.

(See Cooper Aff. at ¶ 13.) Without some tangible downstream harm

flowing from the statutory violations Plaintiff cannot have

suffered a concrete injury resulting from Defendants’ violations

of the NYLL’s wage statement and wage notice requirements. Thus,

he lacks Article III standing to pursue those claims in this

Court.2 Multiple courts in this district have reached similar

2 The Court notes that it made the same finding in Proano v. Melrose Home

Improvement Corp., No. 22-CV-6050 (KAM), 2023 WL 8003303, at *4 (E.D.N.Y. Nov.

17, 2023), a case brought by the same counsel as the instant case, and with

results after the Supreme Court’s decision in TransUnion clarified

the requirements to establish standing, beyond bare allegations of

statutory violations. See, e.g., Quieju v. La Jugeria Inc.,

No. 23-CV-264 (BMC), 2023 WL 3073518, at *2 (E.D.N.Y. Apr. 25,

2023); Guthrie v. Rainbow Fencing Inc., No. 21-CV-5929 (KAM),

2023 WL 2206568, at *6 (E.D.N.Y. Feb. 24, 2023); Sevilla v. House

of Salads One LLC, 20-CV-6072 (PKC), 2022 WL 954740, at *7

(E.D.N.Y. Mar. 30, 2022). Thus, because Plaintiff lacks standing,

the Court lacks subject matter jurisdiction over his wage notice

and wage statement claims under the NYLL.

B. Personal Jurisdiction

The Court finds that it has personal jurisdiction over each

defendant. Personal jurisdiction must comport with both state law

and the Due Process Clause of the federal Constitution. Relevant

Sports, LLC v. U.S. Soccer Fed’n, Inc., 61 F.4th 299, 305 (2d Cir.

2023). New York law authorizes personal jurisdiction over domestic

corporations, N.Y. C.P.L.R. (“CPLR”) § 301, and over non-

domiciliary defendants who transact business within the state,

CPLR § 302(a)(1).

The Due Process Clause is satisfied if the court has general

or specific personal jurisdiction over the defendant. Ford Motor

Co. v. Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021);

identical language regarding the impact of the violation in the Plaintiff’s

affidavit.

see U.S. Const. amend. XIV, § 1. A court has “general” personal

jurisdiction over an individual defendant sued in his or her place

of domicile and over a corporate defendant sued in its state of

incorporation or principal place of business. Ford, 592 U.S. at

358-59. A court has “specific” personal jurisdiction over a

defendant that purposefully avails itself of the privilege of doing

business in the forum state where the plaintiff’s claim arises out

of the defendant’s contacts with the forum. Id. at 359.

Fire & Ice is a New York corporation with its principal place

of business in Brooklyn, New York. (See Compl. at ¶¶ 9-10.) Thus,

the Court may exercise general personal jurisdiction over Fire &

Ice in accordance with state law and the Due Process Clause. See

CPLR § 301; Ford, 592 U.S. at 359. Plaintiff does not allege

Defendant Owens’ citizenship; however, they allege that she

transacted business within New York as the owner and manager of

Fire & Ice, which is the conduct that gave rise to Plaintiff’s

claims against her. (See Compl. at ¶¶ 14–16, 24-25.) Thus, the

Court may exercise specific personal jurisdiction over her. See

CPLR § 302(a)(1); Ford, 592 U.S. at 359.

II. Procedural Requirements

Before the court will enter a default judgment, the plaintiff

must show that entry of default was appropriate, which itself

requires showing that the defendant was effectively served with

process. Sik Gaek, Inc. v. Yogi’s II, Inc., 682 F. App’x 52, 54

(2d Cir. 2017) (summary order). Local Rule 55.2 imposes the

additional requirements that the plaintiff attach certain

materials to the motion for default judgment and file proof that

all motion papers were mailed to the defendant.

A. Service of Process

The Court finds that Plaintiff properly served each defendant

with the summons and complaint. Federal Rule of Civil Procedure

4(e)(1) and 4(h)(1)(A) permit a party to effect service in

accordance with the rules of the state where the district is

located or where service is made.

As to Fire & Ice, state law permits a party to effect service

by delivering the summons and complaint to the New York Secretary

of State as an agent of the corporation. N.Y. Bus. Corp. Law

§ 306(b)(1). Here, Plaintiff served Fire & Ice with notice of

this action by his process server delivering the summons and

Complaint to Nancy Doughtery, an agent in the Office of the

Secretary of State authorized to accept service for Fire & Ice.

(See ECF No. 9.) Thus, Plaintiff properly served Fire & Ice.

As to Defendant Owens, state law permits a party to effect

service by delivering the summons within the state to the person

to be served. CPLR § 308(1). Here, Plaintiff served Defendant

Owens with notice of this action by his process server delivering

the summons and Complaint to Owens at 540 Osborn St., #1D,

Brooklyn, NY 11212, and leaving those documents with Defendant

Owens herself. (See ECF No. 10.) Thus, Plaintiff properly served

Defendant Owens.

B. Entry of Default

The Court next finds that the Clerk of Court properly entered

a certificate of default against each defendant. Because Fire &

Ice was served on March 20, 2023, (see ECF No. 9), it was required

to answer or otherwise respond to the Complaint by April 10, 2023.

See Fed. R. Civ. P. 12(a)(1)(A)(i). When it failed to do so,

Plaintiff filed a request for a certificate of default and the

other materials required by Local Rule 55.1 on April 17, 2023.

(See ECF No. 11.) The Clerk of Court entered a certificate of

default against Fire & Ice on April 21, 2023. (ECF No. 12.)

Because Defendant Owens was served on March 17, 2023, (see

ECF No. 10), she was required to answer or otherwise respond to

the Complaint by April 7, 2023. See Fed. R. Civ. P.

12(a)(1)(A)(i). When she failed to do so, Plaintiff filed a

request for a certificate of default and the other materials

required by Local Rule 55.1 on April 17, 2023. (See ECF No. 11.)

The Clerk of Court entered a certificate of default against

Defendant Owens on April 21, 2023. (ECF No. 12.)

C. Local Rule 55.2

Local Rule 55.2(b) requires that a plaintiff attach to a

motion for default the Clerk’s certificate of default, a copy of

the complaint, and a proposed form of default judgment. Local

Rule 55.2(c) requires that all papers submitted in connection with

a motion for a default judgment be mailed to the “last known

residence” of an individual defendant or “last known business

address” of a corporate defendant.

Plaintiff’s Motion for Default Judgment is supported by an

affirmation that declares Fire & Ice and Owens were served with

all required documents at their last known addresses3: (1) 300

Maspeth Ave., Brooklyn, NY 11211; (2) 540 Osborn St., #1D,

Brooklyn, NY 11212; (3) 514 Crescent St., Brooklyn, NY 11208. (See

Mizrahi Decl. Ex. G.) Accordingly, Plaintiff has met the

requirements of Local Rule 55.2(c).

III. Liability

Having assured itself that the jurisdictional and procedural

prerequisites to enter a default judgment are met, except as to

Plaintiff’s claims for NYLL wage statement and wage notice

violations, the Court now must assess whether Plaintiff’s well-

pleaded factual allegations establish Defendants’ liability as a

matter of law. As a threshold matter, Plaintiff must show an

employer-employee relationship between himself and Defendants to

prevail on his FLSA and NYLL claims. Chang v. Loui Amsterdam,

Inc., No. 19-CV-3056 (RER), 2022 WL 4586100, at *5 (E.D.N.Y.

3 The Court notes that the Osborn St. and Crescent St. addresses are consistent

with the addresses on record with the Secretary of State for Fire & Ice, see

https://apps.dos.ny.gov/publicInquiry/ (last visited May 17, 2024), and

Defendant Owens was served personally at Osborn St, (ECF No. 10).

Sept. 29, 2022). Because district courts in the Second Circuit

interpret “employer” under the NYLL coextensively with the

definition the FLSA uses, the Court analyzes this threshold issue

based on the FLSA’s definitions. See Sanchez v. Clipper Realty,

Inc., 638 F. Supp. 3d 357, 372 (S.D.N.Y. 2022).

The FLSA defines “employee” as “any individual employed by an

employer,” 29 U.S.C. § 203(e)(1), and “employer” as “any person

acting directly or indirectly in the interest of an employer in

relation to an employee,” 29 U.S.C. § 203(d). The Second Circuit

uses a four-factor test based on “economic reality” to determine

whether an employer-employee relationship exists. Irizarry v.

Catsimatidis, 722 F.3d 99, 104–05 (2d Cir. 2013). The test asks

whether the defendant (1) had the power to hire and fire the

plaintiff, (2) supervised and controlled the plaintiff’s work

schedules or conditions of employment, (3) determined the

plaintiff’s rate and method of payment, and (4) maintained

employment records. Id. at 105. The court must consider the

totality of the circumstances, and no single factor is dispositive.

Id. at 106.

Here, Plaintiff has shown that he had an employer-employee

relationship with Defendants. Plaintiff Cooper alleges that he

was employed as a driver and general worker at Defendants’ courier

company. (Compl. at ¶¶ 6–7.) Plaintiff alleges that Defendants

had the power to hire and fire employees. (Id. at ¶¶ 17, 24-28,

32.) Plaintiff further alleges that Defendant Owens, as the

courier business’s owner and manager, set Plaintiff’s work

schedule and that each of the Defendants controlled the conditions

of Plaintiff’s employment. (Id. at ¶¶ 15, 17, 27.) Plaintiff

also alleges that each defendant determined Plaintiff’s rate and

method of payment. (Id. at ¶ 32.) Finally, Plaintiff alleges

that Defendant Owens, as the courier business’s owner and manager,

maintained employment records. (Id. at ¶ 17.) Thus, all four

factors support a finding that as a matter of economic reality,

the plaintiff had an employer-employee relationship with each

defendant. By the same token, the Court finds that Defendants are

jointly and severally liable for the FLSA and NYLL violations

discussed below. See Pineda v. Masonry Constr., Inc.,

831 F. Supp. 2d 666, 685–66 (S.D.N.Y. 2011) (finding allegations

that defendant was an “owner, partner, or manager” of plaintiff’s

corporate employer was enough to qualify him as an FLSA and NYLL

employer and to impose joint and several liability with corporate

defendant).

Plaintiff has also shown that he is not exempt from the FLSA.

The FLSA does not extend minimum wage or overtime protections to

an employee in a “bona fide executive, administrative, or

professional capacity . . . or in the capacity of outside

salesman.” 29 U.S.C. § 213(a)(1). How the plaintiff spent his or

her time is a factual question, but whether the employee’s

activities trigger one of the FLSA’s exemptions is a legal one.

Isett v. Aetna Life Ins. Co., 947 F.3d 122, 129–30 (2d Cir. 2020).

Here, Plaintiff alleges that he worked at Defendants’ courier

company as a “driver and general worker.” (Compl. at ¶ 6.)

Although Plaintiff’s work as a driver would not fall under any of

the enumerated exemptions to the FLSA set forth in 29 U.S.C. §

213(a)(1), it does raise separate questions regarding whether

Plaintiff falls within the Motor Carrier Act of 1935 ("MCA")

Exemption to the FLSA and NYLL.

“The purpose of the motor carrier exemption is to avoid

subjecting employers to overlapping regulatory regimes.” Fox v.

Commonwealth Worldwide Chauffeured Transp. of NY, LLC, 865 F. Supp.

2d 257, 264 (E.D.N.Y. 2012) (citing Levinson v. Spector Motor

Serv., 330 U.S. 649, 661 (1947)); Khan v. IBI Armored Servs., Inc.,

474 F. Supp. 2d 448, 451 (E.D.N.Y. 2007) (explaining that the

“[MCA] exemption was adopted . . . to avoid any problems that might

arise if two government agencies had overlapping jurisdiction”).

The motor carrier exemption “provides that the FLSA's overtime

provision shall not apply to any employee with respect to whom the

Secretary of Transportation has power to establish qualifications

and maximum hours of service.” Chaohui Tang v. Wing Keung

Enterprises, Inc., 210 F. Supp. 3d 376, 390 (E.D.N.Y. 2016)

(citation omitted). “[A]n employee will fall within the MCA

exemption if (1) the employer qualifies as a ‘motor carrier’ or

‘motor private carrier’ as defined under the MCA; (2) the employee

is engaged in ‘safety-affecting activities’; and (3) is on a

vehicle involved in interstate commerce.” Id. at 400 (citing 29

C.F.R. § 782.2(a)).

Even assuming arguendo that Fire & Ice qualifies as a “motor

carrier” or “motor private carrier” as defined under the MCA, the

facts alleged in the Complaint and supplemental affidavits do not

establish that the goods being transported by Plaintiff “were part

of a practical continuity of interstate movement, so that

plaintiffs would fall under the MCA exemption regardless of the

activities performed.” Id. at 397. Because Plaintiff Cooper has

alleged in his supplemental affidavit that his ”duties and

responsibilities did not require [him] to travel out-of-state,”

the Court finds that his work does not fall under the MCA

exemption. (Cooper Supp. Aff. at ¶10.)

Having found that Plaintiff is not exempt from the FLSA or

NYLL, the Court next turns to the FLSA’s interstate commerce

requirement.4 The FLSA requires that the plaintiff be either

(1) engaged in commerce or the production of goods for commerce or

(2) employed in an enterprise engaged in commerce or in the

production of goods for commerce. 29 U.S.C. §§ 206, 207(a). An

employer is considered an “enterprise engaged in commerce” if it

4 The NYLL lacks this requirement. Gangadharan v. GNS Goods & Servs., No. 18-

CV-7342 (KAM), 2022 WL 824135, at *11 (E.D.N.Y. Mar. 18, 2022).

has an annual gross sales volume of at least $500,000 and employees

who handle, sell, or otherwise work on goods or materials that

have been moving in, or produced for commerce by any person.

29 U.S.C. § 203(s)(1)(A).

Here, Plaintiff alleges the statutory requirements without

providing any specific examples. (See Compl. ¶ 11.) Still, based

on Plaintiff’s allegations that Defendants’ courier company has an

annual gross sales volume of at least $500,000 and has employees

“engaged in commerce or in the production of goods and services

for commerce and handling, selling, or otherwise working on goods

or materials that have been moved in or produced for commerce by

any person,” the Court can reasonably infer that at least some of

the equipment, goods, materials, and supplies used by Defendants

have moved or engaged in interstate or international commerce.

See Kilmchak v. Cardona, Inc., No. 09-CV-4311 (MKB), 2014 WL

3778964, at *5 (E.D.N.Y. July 31, 2014) (noting that several courts

in this district have inferred FLSA enterprise coverage based on

the nature of the defendant’s business notwithstanding such

pleading deficiencies).

Finding these threshold requirements satisfied, the Court

proceeds to consider whether Defendants’ alleged conduct violated

the FLSA and NYLL.

A. Minimum Wage

The FLSA and NYLL each require an employer to pay an employee

at least a minimum hourly rate for each hour the employee works.

For the entire relevant period, the federal minimum wage was $7.25

per hour. 29 U.S.C. § 206(a)(1)(C). The New York City minimum

wage varied during the relevant period but was $10.50 per hour for

small employers5 in 2017, $12.00 per hour for small employers in

2018, and $15 per hour in 2020 and thereafter. NYLL § 652(a).

The plaintiff has the burden to prove that he or she was

improperly compensated for the work he or she performed. Kuebel

v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011). If the

defendant has defaulted, however, the court may presume that the

plaintiff’s recollection and estimates of the hours he or she

worked are accurate. Cabrera v. Canela, 412 F. Supp. 3d 167, 181

(E.D.N.Y. 2019). An employer has a non-delegable duty to maintain

accurate records of its employees’ hours. Kuebel, 643 F.3d at

363. Thus, it would be unfair to require more substantial proof

when the defendant is not participating in the case and the

plaintiff lacks the ability to obtain the defendant’s employment

records through discovery. See Cabrera, 412 F. Supp. 3d at 181.

5 Because Plaintiff does not allege any facts showing that Defendants employed

more than ten employees, the Court assumes for purposes of its analysis that

Defendants constitute a small employer for purposes of the New York Labor Law.

See Campos Marin v. J&B 693 Corp., No. 19-CV-569 (JGK)(KHP), 2022 WL 377974, at

*7 (S.D.N.Y. Jan. 21, 2022) (applying lower, small employer rate where plaintiff

failed to allege that employer had eleven or more employees).

Moreover, Plaintiff here states that he was not required to keep

track of his time and that he is unaware of Defendants having used

any time tracking device that would have reflected his actual hours

worked, so more precise evidence may not even exist in this case.

(Compl. at ¶ 44.)

“For purposes of determining whether Plaintiff was paid the

prevailing minimum wage, the Court must determine his regular

hourly rate of pay.” Sanchez v. Ms. Wine Shop Inc., 643 F. Supp.

3d 355, 371 (E.D.N.Y. 2022) (internal quotation marks and citation

omitted). “Because Plaintiff is not covered by the New York

Hospitality Industry Wage Order . . . the regular hourly rate of

pay equals the Plaintiff’s total weekly pay divided by the total

number of hours worked in a given week.” Id. Here, Defendants

appear to have complied with the FLSA and NYLL minimum wage

mandates when they paid Plaintiff Cooper $750 weekly for 55 hours

per week, working out to approximately $13.64 per hour, for the

time he worked prior to December 31, 2018. (See Cooper Supp. Aff.

at ¶¶ 11–13.)

Defendants fell out of compliance, however, when they

continued to pay Plaintiff the same weekly rate of pay for his

similar work in July 2021 and thereafter, despite the increase in

minimum wage in New York City6 to $15 per hour and Plaintiff

6 “When a state's minimum wage is higher than the federal minimum wage, the

employer must pay the state minimum wage to satisfy the FLSA's minimum wage

requirement.” Sevilla v. House of Salads One LLC, No. 20-CV-6072 (PKC), 2022

Cooper’s increased hours from October 2022 forward. (See Cooper

Supp. Aff. at ¶¶ 11–13.) Therefore, the Court finds Defendants

liable for violating the FLSA’s and NYLL’s minimum wage provisions.

B. Overtime

The FLSA and the NYLL’s implementing regulations require an

employer to pay an employee an overtime premium of one and one-

half times the employee’s regular rate for each hour the employee

works above forty each week. 29 U.S.C. § 207(a); 12 N.Y.C.R.R. §§

142-2.2, 146-1.4. Like with the FLSA’s and NYLL’s minimum wage

mandates, the Court may presume the accuracy of Plaintiff’s

recollections and estimates of the hours they worked because

Defendants have defaulted. Cabrera, 412 F. Supp. 3d at 181.

Here, Plaintiff alleges that Defendants him $750 weekly,

regardless of how many hours he worked. (Cooper Supp. Aff. at ¶

13.) Plaintiff typically worked 55 hours per week during the

relevant period prior to October 2022, and 71.5 hours per week

during the relevant period from October 2022 forward. (Id. at

¶¶11-13.) Plaintiff states in his Complaint that he “never

received an overtime premium of one and one-half times his regular

rate of pay” for the hours he worked in excess of 40 hours per

week. (Compl. at ¶ 41.) Thus, the Court finds Defendants liable

for violating the FLSA’s and NYLL’s overtime provisions.

WL 954740, at *5 (E.D.N.Y. Mar. 30, 2022) (citing 29 C.F.R. § 778.5); see also

29 U.S.C. § 218(a).

C. Spread-of-Hours Pay

The NYLL’s implementing regulations require an employer to

pay an employee a “spread-of-hours” premium of one additional

hour’s pay at the basic minimum hourly rate for each workday that

lasts longer than ten hours. 12 N.Y.C.R.R. § 142-2.4. Here,

Plaintiff alleges that he worked at least eleven hours per day for

each day that he was employed by Defendants’ courier company.

(Compl. at ¶¶ 36-39.) As mentioned previously, Plaintiff was paid

a fixed weekly wage, and he explicitly claims that Defendants never

paid him the required spread-of-hours premium. (Id. at ¶ 81.)

Thus, the Court finds Defendants liable for violating the NYLL’s

spread-of-hours provision.

IV. Relief

Because Plaintiff has established Defendants’ liability as to

Plaintiff’s minimum wage, overtime, and spread-of-hours claims,

the Court must determine whether Plaintiff is entitled to the

relief he requests.

A. Collective Action Certification

Plaintiff’s Complaint states that he seeks to prosecute this

action as an FLSA “collective action.” (See Compl. at ¶¶ 49–52,

p. 13.) The FLSA authorizes an employee to sue on behalf of him

or herself and all other similarly situated employees. 29 U.S.C.

§ 216(b). To join in the action, other employees must “opt in” by

written consent. Id. If the plaintiff makes a factual showing

that he or she and the potential opt-in plaintiffs were victims of

a common unlawful policy or plan, the court conditionally certifies

the action as a FLSA collective action and authorizes the plaintiff

to send notice to potential plaintiffs who may be similarly

situated. Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010).

After those plaintiffs have opted in, the court determines whether

they are in fact similarly situated to the named plaintiff. Id.

Because Plaintiff did not reiterate his collective action

certification request in his Motion for Default Judgment, the Court

considers the collective action abandoned. See, e.g., Galicia v.

63-68 Diner Corp., No. 13-CV-3689 (PKC), 2015 WL 1469279, at *1

(E.D.N.Y. Mar. 30, 2015). Additionally, in situations where the

plaintiff seeks to certify a FLSA collective action and the

defendant defaults, other courts in this circuit have entered

default judgments in favor of only the named plaintiffs and have

left the defendants the opportunity to defend themselves against

claims by future plaintiffs. See, e.g., Lopic v. Mookyodong

Yoojung Nakjie, Inc., No. 16-CV-4179 (KAM), 2017 WL 10845064, at

*2 (E.D.N.Y. Sept. 30, 2017); Charvac v. M & T Project Managers of

N.Y., Inc., No. 12-CV-5637 (CBA), 2013 WL 6711485, at *3 (E.D.N.Y.

Dec. 18, 2013). The Court’s decision applies only to Plaintiff

Cooper and not to any of Defendants’ other employees.

B. Damages

The measure of damages in a FLSA or NYLL case is the amount

the plaintiff should have been paid minus the amount the plaintiff

was actually paid. Ramos v. Guaba Deli Grocery Corp., No. 20-CV-

4904 (PAE), 2021 WL 5563714, at *9 (S.D.N.Y. Nov. 29, 2021). The

plaintiff may not recover double damages for the same injury under

both the FLSA and NYLL, though the plaintiff is entitled to relief

under whichever statute provides the greater measure of damages.

Ventura v. Putnam Gardens Parking Corp., No. 20-CV-119 (JKG)(VF),

2023 WL 3603589, at *3 (S.D.N.Y. Mar. 20, 2023), report and

recommendation adopted, 2023 WL 3601649 (S.D.N.Y. May 23, 2023).

Plaintiff Cooper worked the following hours while employed by

the Defendants:

•

“From May 2017 to, through and including December 2018, Cooper

regularly worked five (5) days per week, from approximately

9:00 a.m. to 8:00 p.m. (i.e., for a total of approximately 11

hours each day), and for a total period of approximately 55

hours during each of the weeks, respectively.” (Compl. at ¶

36; Cooper Supp. Aff. at ¶ 11.)

•

“From July 2021 to, through and including December 2021,

Cooper regularly worked five (5) days per week, from

approximately 9:00 a.m. to 8:00 p.m. (i.e., for a total of

approximately 11 hours each day), and for a total period of

approximately 55 hours during each of the weeks,

respectively.” (Compl. at ¶ 37; Cooper Supp. Aff. at ¶ 11.)

•

“From June 2022 to, through and including September 2022,

Cooper regularly worked five (5) days per week, from

approximately 9:00 a.m. to 8:00 p.m. (i.e., for a total of

approximately 11 hours each day), and for a total period of

approximately 55 hours during each of the weeks,

respectively.” (Compl. at ¶ 38; Cooper Supp. Aff. at ¶ 11.)

•

“From October 2022 to, through and including January 4, 2023,

Cooper regularly worked six (6) or seven (7) days per week,

from approximately 9:00 a.m. to 8:00 p.m. (i.e., for a total

of approximately 11 hours each day), and for a total period

of approximately 66 to 77 hours during each of the weeks,

respectively.” (Compl. at ¶ 39; Cooper Supp. Aff. at ¶ 12.)

1. Minimum Wage, Overtime, and Spread of Hours

The amount of unpaid minimum and overtime wages is calculated

by subtracting the amount Plaintiff was actually paid from the

amount that he should have been paid under the FLSA and NYLL. The

greater of Plaintiff’s regular rate of pay7 or the applicable

lawful minimum wage for each period—$10.50 per hour in 2017, $12.00

per hour in 2018, and $15 per hour in 2021 and thereafter—is

7 Because the Court does not find Plaintiff to fall under New York’s Hospitality

Industry Wage Order, it calculates his regular rate of pay “by dividing the

total hours worked during the week into the employee's total earnings,”

resulting in $13.64 prior to October 2022, and $10.50 thereafter. 12

N.Y.C.C.R.R. § 142-2.16

multiplied by 40 to account for the appropriate weekly pay for

Plaintiff’s regular, full-time work hours. Next, any weekly hours

worked in excess of 40 are multiplied by the applicable overtime

wage rate—1.5 times the applicable wage8—and added to the amount

of regular wages. Spread-of-hours pay is calculated by multiplying

the legal minimum wage rate by the number of days that Plaintiff

worked in excess of 10 hours per day in each period, and is added

to the amount of wages Plaintiff should have been paid.

Subtracted from the above combined amounts is the pay that

Plaintiff actually received, which is calculated by multiplying

the $750-per-week rate by the total number of weeks Plaintiff

Cooper worked. This resulting dollar value is the total unpaid

minimum wages, overtime wages, and spread-of-hours pay owed to

Plaintiff. (See Cooper Supp. Aff. Ex. A, Plaintiff’s Damages

Chart.)

The Court’s calculations of the amount Plaintiff should have

been paid for his regular hours (up to 40 each week) is as follows:

8 “The FLSA provides that overtime pay should be calculated based on the

employee's regular rate of pay or the minimum wage, whichever is greater.”

Martinez v. Alimentos Saludables Corp., No. 16-CV-1997 (DLI)(CLP), 2017 WL

5033650, at *16 (E.D.N.Y. Sept. 22, 2017) (citing 29 U.S.C. § 207; 29 C.F.R. §

778.107). “New York law also requires that employees be compensated at “one

and one-half times the employee's regular rate of pay” and provides that the

regular rate should be calculated “in the manner and methods provided in” the

FLSA.” Id. (citing 12 N.Y.C.C.R.R. § 142-2.2.).

Time Period Regular Regular Regular Weeks Pay Owed for

Rate of Hours Pay Owed Worked Regular Hours

Pay or Per Week in

Minimum Period

Wage

May 2017 $13.64 40.0 $545.45 34.9 $19,012.99

through

December 2017

January 2018 $13.64 40.0 $545.45 52.0 $28,363.64

through

December 2018

July 2021 $15.00 40.0 $600.00 26.1 $15,685.71

through

December 2021

June 2022 $15.00 40.0 $600.00 17.3 $10,371.43

through

September 2022

October 2022 $15.00 40.0 $600.00 13.6 $8,142.86

through

January 4,

2 023

Total: $81,576.62

The Court’s calculations of the amount Plaintiff should have

been paid for his overtime hours in excess of 40 each week is as

follows:

Time Period Lawful Over- Overtime Weeks Lawful Pay

Overtime time Pay Owed Worked for Overtime

Wage Hours Per Week in Hours

Period

May 2017 $20.45 15.0 $306.82 34.9 $ 10,694.81

through

December 2017

January 2018 $20.45 15.0 $306.82 52.0 $ 15,954.55

through

December 2018

July 2021 $22.50 15.0 $337.50 26.1 $ 8,823.21

through

December 2021

June 2022 $22.50 15.0 $337.50 17.3 $ 5,833.93

through

September 2022

October 2022 $22.50 31.5 $708.75 13.6 $ 9,618.75

through

January 4,

2 023

Total: $ 50,925.24

The Court’s calculations of the amount Plaintiff should have

been paid for spread-of-hours pay is as follows:

Time Period Lawful Days Weekly Weeks Lawful

Minimum Worked Spread of Worked Spread-of-

Wage per Hours Pay in Hours Pay

Week Period

May 2017 $10.50 5 $ 52.50 34.9 $ 1,830.00

through

December 2017

January 2018 $12.00 5 $ 60.00 52.0 $ 3,120.00

through

December 2018

July 2021 $15.00 5 $ 75.00 26.1 $ 1,960.71

through

December 2021

June 2022 $15.00 5 $ 75.00 17.3 $ 1,296.43

through

September 2022

October 2022 $15.00 6.5 $ 97.50 13.6 $ 1,323.21

through

January 4,

2 023

Total: $ 9,530.36

Combined together, the Court calculates the amount that

Plaintiff Cooper should have been paid during the relevant period

as $142,032.22. Next, the Court calculates the amount that

Plaintiff Cooper was actually paid during the relevant period:

Time Period Weeks Weekly Pay Actual Pay for Period

Worked

May 2017 through 34.9 $750.00 $ 26,142.86

December 2017

January 2018 52.0 $750.00 $ 39,000.00

through December

2018

July 2021 26.1 $750.00 $ 19,607.14

through December

2021

June 2022 17.3 $750.00 $ 12,964.29

through

September 2022

October 2022 13.6 $750.00 $ 10,178.57

through January

4 , 2023

Total: $107,892.86

Subtracting the amount that Plaintiff Cooper was paid

($107,892.86) from the amount that he should have been paid during

the relevant period ($142,032.22), the Court calculates his unpaid

wages as $34,139.37, and awards to Plaintiff Cooper damages in the

amount of $34,139.379.

2. Liquidated Damages

Both the FLSA and NYLL generally provide for double (or

“liquidated”) damages unless the defendant proves a good faith

basis to have believed it was complying with the law. See

29 U.S.C. § 260; NYLL § 663(1). Here, Plaintiff repeatedly

alleges that Defendants’ misconduct was willful, and that

Defendants were not acting in good faith. (See Compl. ¶¶ 54-55,

61-62, 64-65, 71-72, 81-83.) Moreover, Defendants have not

9 The Court notes that this calculation differs from the wage table proffered

by Plaintiff’s counsel. Plaintiff’s table erroneously states the lawful minimum

wage for 2018 as $15.00 and fails to include spread-of-hours pay for 2017.

(Cooper Supp. Aff. Ex. A.) New York City’s minimum wage did not reach $15 per

hour until on and after December 31, 2018, for large employers, and on and after

December 31, 2019, for small employers. NYLL § 652(a).

answered or otherwise appeared in this action, so they have

forfeited their opportunity to prove good faith. Chen v. Oceanica

Chinese Rest., No. 13-CV-4623 (NGG), 2023 WL 2583856, at *16

(E.D.N.Y. Mar. 21, 2023). Thus, the Court finds Plaintiff is

entitled to liquidated damages for Defendants’ violations of the

FLSA and NYLL.

The Second Circuit has interpreted the NYLL to preclude the

duplicate award of liquidated damages under both the NYLL and FLSA.

Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018). Because “the law

providing the greatest recovery will govern,” Plaintiff is awarded

liquidated damages under the NYLL, calculated at 100% of total

wages owed under the minimum wage and overtime claims, available

under both the FLSA and NYLL, and spread-of-hours claims, available

only under the NYLL. Charvac v. M & T Project Mgrs. of N.Y., Inc.,

No. 12-CV-5637 (CBA)(RER), 2015 WL 5475531, at *4 (E.D.N.Y. June

17, 2015), report and recommendation adopted as modified, 2015 WL

5518348 (E.D.N.Y. Sept. 17, 2015). The Court therefore awards

liquidated damages to Plaintiff Cooper in the amount of $34,139.37.

3. Pre- and Post-Judgment Interest

Though the FLSA does not permit awarding pre-judgment

interest in addition to liquidated damages, the NYLL does. Fermin

v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 48–49

(E.D.N.Y. 2015). To avoid giving the plaintiff a windfall,

however, courts award pre-judgment interest only on compensatory

damages and not on any liquidated damages award. Id. at 49.

Courts calculate pre-judgment interest on a NYLL award at a rate

of 9% per year. CPLR § 5004. For cases where damages were incurred

at various times, the court may compute interest either upon each

item from the date it was incurred or upon all the damages from a

single reasonable intermediate date. CPLR § 5001(b). Courts have

discretion to determine a reasonable intermediate date from which

to award pre-judgment interest, and the median date between the

earliest and latest that the plaintiff’s NYLL claim accrued is

considered a reasonable single intermediate date. Elghourab v.

Vista JFK, LLC, No. 17-CV-911 (ARR), 2019 WL 2431905, at *12

(E.D.N.Y. June 11, 2019).

Here, for ease of calculation and transparency, the Court

sets March 3, 2020, as the intermediate date for Plaintiff Cooper

because that date marks the halfway point in his employment with

Defendants during the relevant period. Defendants owe Plaintiff

Cooper daily pre-judgment interest in the amount of $8.42

(($34,139.37 x 0.09 annual rate) / 365 days), starting from the

March 3, 2020, midpoint through the date the Clerk of Court enters

judgment in this case. The number of days between March 3, 2020,

and the date of entry of judgment, July 9, 2024, is 1,589.

Accordingly, the prejudgment interest owed to Plaintiff Cooper is

$13,379.38 (1,589 days x $8.42).

4. Attorneys’ Fees and Costs

The FLSA and NYLL each authorize an award of “reasonable”

attorneys’ fees. 29 U.S.C. § 216(b); NYLL § 663(1). The standard

method for determining reasonable attorneys’ fees is “the number

of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate,” or a “presumptively reasonable fee.”

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Arbor Hill

Concerned Citizens Neighborhood Ass'n v. Cty. Of Albany and Albany

Cty. Bd. Of Elections, 522 F.3d 182, 188-90 (2d Cir. 2007). “The

party seeking reimbursement of attorney's fees bears the burden of

proving the reasonableness and the necessity of the hours spent

and rates charged.” Fermin v. Las Delicias Peruanas Rest., Inc.,

93 F. Supp. 3d 19, 51 (E.D.N.Y. 2015). The applicant also must

provide contemporaneous records indicating “for each attorney, the

date, the hours expended, and the nature of the work done.” New

York State Ass'n for Retarded Child., Inc. v. Carey, 711 F.2d 1136,

1148 (2d Cir. 1983). The court may look to fees awarded in recent

FLSA and NYLL cases in the Eastern District of New York to

determine the reasonableness of a fee request. Fermin,

93 F. Supp. 3d at 52.

Here, Plaintiff has provided a spreadsheet showing the number

of hours that each attorney and staff member expended litigating

this case along with each person’s hourly rate. (See Mizrahi Decl.

Ex. B.) This spreadsheet shows that associate Jason Mizrahi

completed 29.15 hours of work on this case and that paralegal

Alexis Abrego completed 1.7 hours. The Court omits the two one-

hour entries for process servers and filing fees, which are listed

under Ms. Abrego’s name but appear to reflect costs to the firm

and not hours of work she billed at her hourly rate. Plaintiff

requests hourly rates of $350 for Mr. Mizrahi and $50 for

Ms. Abrego. (Mem. at 20.) Plaintiff also requests an hourly rate

of $500 for partner Joshua Levin-Epstein, (id.), but the

spreadsheet does not reflect that he did any work on this case and

he is not entitled to fees, (see Mizrahi Decl. Ex. B).

The Court calculates Plaintiff’s total fee request at

$10,287.50, which represents ($350 hourly rate * 29.15 hours) +

($50 hourly rate x 1.7 hours). Puzzlingly, Plaintiff’s motion

requests $10,287.50 “[a]pplying the percentage method,” despite

having spent two pages discussing fees under the “lodestar” method

and attaching a spreadsheet to support the lodestar calculation.

(Mem. at 19-20.) As the Court has previously noted on several

other occasions involving Plaintiff’s counsel, this reference to

the percentage method appears to have been made in error by

counsel. See, e.g., Proano v. Melrose Home Improvement Corp., No.

22-CV-6050 (KAM), 2023 WL 8003303, at *11 (E.D.N.Y. Nov. 17, 2023);

Zabrodin v. Silk 222, Inc., No. 22-CV-7064 (KAM), 2023 WL 8009319,

at *13 (E.D.N.Y. Nov. 20, 2023). The Court encourages Plaintiff’s

counsel to rectify this erroneous reference to the “percentage

method” in future filings.

Similar to Zabrodin v. Silk 222, Inc., a case involving the

same counsel as the instant case, the Court finds the 30.85 hours

for which Plaintiff’s counsel seeks compensation to be

unreasonable, “especially given [Plaintiff’s] counsel's repeated

errors.” 2023 WL 8009319, at *13. A close review of Plaintiff’s

counsel’s billing records reveals inflated billing.

Plaintiff’s counsel billed 1.25 hours each for two half-page

letters requesting an extension of time to file the motion for

default judgment, and 1 hour for the third similar letter

requesting an extension. (Mizrahi Decl. Ex. B. at 2-3.)

Plaintiff’s counsel billed 2.25 hours for the drafting of his

declaration in support of the motion for default judgment despite

the fact that the declaration appears nearly identical to the

declaration filed in Proano v. Melrose Home Improvement Corp., No.

22-CV-6050 (KAM), as ECF No. 21. As mentioned in this Court’s

Memorandum and Order in Zabrodin v. Silk 222, Inc., “[g]iven the

striking similarities between the papers [Plaintiff’s] counsel

filed in these . . . relatively straightforward cases, it was

unreasonable that [Plaintiff’s] counsel could not litigate this

case more efficiently.” 2023 WL 8009319, at *14.

The Court exercises its discretion to deduct a reasonable

percentage of the inflated 30.85 hours for which Plaintiff’s

counsel seek compensation “as a practical means of trimming the

fat” from the fee request. See Gagasoules v. MBF Leasing LLC, 296

F.R.D. 107, 111–12 (E.D.N.Y. 2013) (quoting Kirsch v. Fleet Street,

Ltd., 148 F.3d 149, 173 (2d Cir. 1998)). Thus, the Court deducts

fifteen percent of the hours Mizrahi billed and awards fees for

approximately 24.8 hours of work by Mizrahi and 1.7 hours of work

by Abrego.

The Court also finds Mizrahi's requested hourly rate of $350

excessive because it is at the high end of what courts in this

district generally award for work by senior associates in FLSA and

NYLL cases. See Jones v. Pawar Bros. Corp., No. 17-CV-3018 (PKC),

2023 WL 6214213, at *8 (E.D.N.Y. Sept. 25, 2023) (describing the

hourly rates of senior associates in this District as ranging from

$200-$325). The Court observes that other courts in this district

recently have approved Mr. Mizrahi’s and Ms. Abrego’s hourly

rates, but Mr. Mizrahi’s rate generally has been approved at $325

rather than the $350 that Plaintiff seeks in this case. See, e.g.,

Sims v. Crown Waste Corp., No. 22-CV-6047 (BMC), 2023 WL 363070,

at *2 (E.D.N.Y. Jan. 23, 2023). Moreover, Plaintiff’s counsel

made several errors that needlessly complicated the Court’s

resolution of an otherwise routine default judgment motion.10 See

10 Errors included (1) initially filing the motion for default judgment with an

erroneous affidavit, which required the Court to issue an Order to Show Cause

why Fed. R. Civ. P. 11 sanctions should not be ordered, (Docket Order dated

December 19, 2023); (2) attaching a damages spreadsheet that incorrectly states

the applicable minimum wage, see supra n.9; and (3) making an unsupported

Gesualdi v. Stallone Testing Labs., Inc., No. 10-CV-646 (ENV),

2011 WL 2940606, at *1 (E.D.N.Y. July 19, 2011) (explaining that

filing, drafting, and calculation errors that waste judicial

resources may warrant a fee reduction). Thus, the Court reduces

Mr. Mizrahi’s hourly rate to $250 per hour and awards $6,279.38 in

attorney’s fees, which represents Plaintiff’s lodestar calculation

with a reduced hourly rate.

The Court awards $749.00 in costs, which include process

server charges of $324.00 plus $425.00 in filing fees. See

29 U.S.C. § 216(b); NYLL § 198(4). Plaintiff’s request for this

amount in costs, (Mem. at 20), is supported by documentation

attached to the motion, (see Mizrahi Decl. Ex. C).

5. Post-Judgment Interest

Plaintiff is entitled to post-judgment interest as of right.

28 U.S.C. § 1961. Thus, post-judgment interest shall accrue from

entry of judgment at the federal statutory rate until the judgment

is paid in full.

CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Default

Judgment is granted in part and denied in part.

Plaintiff Cooper is entitled to the principal balance of

$68,278.73 and pre-judgment interest at the daily rate of $8.42

request for attorney’s fees based on the percentage method, see supra p. 37.

Attorney errors pose special problems in the default judgment context, where

courts cannot rely on the adversarial process to reveal them.

from March 3, 2020, to the date of entry of judgment, July 9, 2024,

totaling $13,379.38, as well as post-judgment interest at the rate

set forth in 28 U.S. § 1961(a), from the date of the entry of

judgment until the date of payment in full.

Plaintiff is entitled to attorneys’ fees in the amount of

$6,279.38 and costs in the amount of $749.00.

The Court denies Plaintiff’s request to certify this action

as a FLSA collective action.

The Court dismisses without prejudice Plaintiff’s NYLL claims

for wage notice and wage statement violations.

The Clerk of Court is respectfully directed to enter judgment

awarding Plaintiff $88,686.49, along with statutory post-judgment

interest, in accordance with this Memorandum and Order. Plaintiff

is ordered to serve a copy of this Memorandum and Order and the

Judgment on all defendants and file declarations of service for

each defendant within two days after the Clerk of Court enters the

Judgment.

SO ORDERED. b “4 YY, _—_—

Dated: July 3, 2024 “Vy sip

Brooklyn, New York

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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