Serrano Perez v. Mesa Azteca Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SANTIAGO SERRANO PEREZ,

Plaintiff,

REPORT AND

-against- RECOMMENDATION

23-CV-9374 (HG) (TAM)

MESA AZTECA CORP., d/b/a/ MESA

AZTECA and JOAQUIN F.

VELAZQUEZ,

Defendants.

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TARYN A. MERKL, United States Magistrate Judge:

Plaintiff Santiago Serrano Perez commenced this action against Defendants Mesa

Azteca Corp., d/b/a Mesa Azteca (“Corporate Defendant”), Joaquin F. Velazquez,

Gustavo Rosas, and Cesar Reyes1 on December 20, 2023. (Compl., ECF No. 1.) Plaintiff

alleges various claims, including violations of the Fair Labor Standards Act, 29 U.S.C.

§201 et seq. (“FLSA”) and the New York Labor Law (“NYLL”), Article 6 Section 190 et

seq. (Id.)

On March 14, 2024, the Clerk of Court certified Defendants’ default pursuant to

Rule 55(a) of the Federal Rules of Civil Procedure, and Plaintiff subsequently moved for

a default judgment on April 3, 2024. (Clerk’s Entry of Default, ECF No. 13; Mot. for

Default J., ECF No. 15.) For the reasons set forth below, this Court recommends that

Plaintiff’s motion be granted in part and denied in part.

1 Plaintiff voluntarily dismissed Defendants Gustavo Rosas and Cesar Reyes on June 13,

2024. (Notice of Voluntary Dismissal, ECF No. 22; see also June 14, 2024 ECF Order Dismissing

Parties.)

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff alleges that Defendants employed him as a delivery worker,

dishwasher, and cook from February 2022 through on or about May 5, 2023. (Compl.,

ECF No. 1, ¶¶ 4, 15.) Plaintiff claims that he was paid $16.00 per hour from

approximately February 2022 until in or about April 2022, and $17.00 per hour from

approximately May 2022 until on or about May 5, 2023. (Id. ¶¶ 43, 44.) Plaintiff also

alleges that from February 2022 until on or about August 21, 2022, he worked five days

a week for an average of 50 to 54 hours per week, two weeks of the month and six days

a week averaging 60 to 70 hours per week for the remainder of the month. (Id. ¶ 39.)

Plaintiff claims that, from approximately mid-November 2022 until on or about

December 25, 2022, he worked three days a week for approximately 25 to 35 hours per

week. (Id. ¶ 40.) From approximately December 26, 2022, to May 5, 2023, Plaintiff

alleges he worked five days a week for an average of 50 to 54 hours per week. (Id. ¶ 41.)

Plaintiff further alleges that throughout his employment with Defendants, they did not

pay him appropriate overtime compensation and instead adjusted his paystubs to

reflect inaccurate wages and hours worked. (Id. ¶¶ 48, 50.)

According to the complaint, Corporate Defendant was an enterprise engaged in

interstate commerce. (Id. ¶ 31.) Plaintiff alleges that Defendant Joaquin F. Velazquez is

the owner, officer, and/or agent of Defendant Corporation. (Id. ¶ 19.)

Plaintiff asserts claims against Defendants for willfully violating the overtime

pay provisions of the FLSA and the NYLL, (id. ¶¶ 67–68, 71–72); for willfully violating

the spread of hours wage order of the NYLL and N.Y.C.R.R., (id. ¶¶ 75–76)2; for

violating the notice and recordkeeping requirements of the NYLL, (id. ¶ 79); and for

violating the wage statement provisions of the NYLL, (id. ¶ 82).

Service was made on Corporate Defendant by serving the New York Secretary of

State on December 22, 2023. (See Aff. of Service, ECF No. 6.) Service of the summons

and complaint upon Defendant Joaquin F. Velazquez was effected by in-person service

on a person identified as a coworker of Velazquez, at the location of Corporate

Defendant’s restaurant, i.e., 91 Wyckoff Avenue, Brooklyn, NY 11237, on January 30,

2024, and by mailing a copy of the summons to Defendant Velazquez to the address of

Corporate Defendant on January 31, 2024. (See Aff. of Service, ECF No. 10; see also

Compl., ECF No. 1, ¶¶ 2, 17 (specifying business address of Corporate Defendant as 91

Wyckoff Avenue, Brooklyn, NY 11237).) After Defendants failed to appear, Plaintiff

requested a Certificate of Default on March 6, 2024. (Request for Certificate of Default,

ECF No. 11.) The Clerk of Court entered default against Defendants on March 14, 2024.

(Clerk’s Entry of Default, ECF No. 13.)

On April 3, 2024, Plaintiff moved for a default judgment on Plaintiff’s overtime

compensation and liquidated damages claims under the FLSA and the NYLL, Plaintiff’s

claims brought under the New York Wage Theft Prevention Act (“WTPA”), and for

attorneys’ fees and costs. (Mot. for Default J., ECF No. 15; Decl. in Supp. of Mot. for

2 While the complaint includes a cause of action for failure to pay spread of hours wages,

(Compl., ECF No. 1, ¶¶ 10, 74–77), spread of hours violations are not discussed in the default

motion paperwork. (Decl. in Supp. of Mot. for Default J., ECF No. 16.) Accordingly, the Court

deems that this claim has been abandoned. Cf. Donohue v. Marsh, No. 19-CV-207 (RPK) (RML),

2022 WL 4111025, at *8 (E.D.N.Y. Sept. 8, 2022) (“Plaintiff’s acknowledgement of all his claims,

his specification of the four valid claims, and his defense of those fo[u]r claims alone are

sufficient to permit ‘a court [to] . . . infer’ that the remaining claims have been abandoned.”

(quoting Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014))).

Default J., ECF No. 16.) The Honorable Hector Gonzalez referred the motion to the

undersigned magistrate judge on April 4, 2024. (Apr. 4, 2024 ECF Order Referring Mot.)

That same day, Plaintiff filed an executed declaration in support of his motion, as the

declaration filed in support of the motion for default judgment on April 3, 2024, did not

include Plaintiff’s signature. (Letter, ECF No. 17; see Pl.’s Decl. in Supp. of Mot. for

Default J., ECF No. 16-10 (unsigned) & ECF No. 17-1 (signed).) On April 5, 2024,

Plaintiff certified that the default motion paperwork was sent to Defendants by mail to

the address of Corporate Defendant. (Certificate of Service, ECF No. 18.) On April 19,

2024, the Court scheduled a default hearing for May 16, 2024. (Apr. 19, 2024 ECF

Scheduling Order.)

At the default motion hearing on May 16, 2024, Defendants did not appear, and

Plaintiff confirmed that the default papers had only been mailed to one address of

Corporate Defendant. (May 16, 2024 ECF Min. Entry & Order.) Accordingly, the Court

directed Plaintiff to file a status report advising the Court as to their efforts to locate and

serve an individual in a position of authority at Corporate Defendant as well as any

progress made in determining the home addresses of the Individual Defendants. (Id.)

Plaintiff was further directed to file a supplemental declaration under E.D.N.Y. Local

Civil Rule 55.1, establishing that any Individual Defendant against whom Plaintiff was

moving for default was not serving in the military. (Id.) On May 28, 2024, Plaintiff’s

counsel filed a supplemental submission, as well as an affidavit confirming mailing of

the default paperwork and the supplemental submission to Defendant Velazquez at his

last known residential address. (Status Report, ECF No. 20; Suppl. Decl. in Supp. of

Mot. for Default J., ECF No. 20-1 (hereinafter “Suppl. Submission”); Affirmation of

Service, ECF No. 21.)

In the supplemental submission, Plaintiff indicated his intention to voluntarily

dismiss Defendants Gustavo Rosas and Cesar Reyes. (Status Report, ECF No. 20.) The

Court then directed Plaintiff to file a notice of voluntary dismissal and to advise the

Court as to his efforts to serve Corporate Defendant by serving an individual in a

position of authority. (May 31, 2024 ECF Order.) Plaintiff filed a notice of voluntary

dismissal on June 13, 2024, as to Defendants Rosas and Reyes. (Notice of Voluntary

Dismissal, ECF No. 22.) Judge Gonzalez dismissed Rosas and Reyes from the case on

June 14, 2024. (June 14, 2024 ECF Order Dismissing Parties.) On June 17, 2024, Plaintiff

filed another status report advising the Court that he served an individual identified as

a manager at Corporate Defendant with the default motion and related paperwork. (See

Status Report, ECF No. 23; Aff. of Service, ECF No. 24.) The affidavit of service shows

that service was made on an individual identified as an authorized agent of Corporate

Defendant by in-person service on June 14, 2024. (See Aff. of Service, ECF No. 24.)

Plaintiff also sent the supplemental affidavit and all documents identified in ECF No. 24

to the last known business address of Corporate Defendant. (See Certificate of Service,

ECF No. 25.)3 To date, nobody has appeared for Defendants.

DISCUSSION

Plaintiff has moved for a default judgment on his claims that Defendants

willfully violated (1) the overtime pay provisions of the FLSA and the NYLL, (2) the

notice and recordkeeping requirements of the NYLL, and (3) the wage statement

3 The following documents were identified in ECF No. 24: the “supplemental declaration

of Jesse Barton, Esq., in support of plaintiff’s motion for default judgment, exhibit A, notice of

motion for default judgment, complaint, default judgment, [and] exhibits.” (Aff. of Service, ECF

No. 24.)

provisions of the NYLL. Plaintiff seeks compensatory and liquidated damages under

the FLSA and the NYLL, as well as attorneys’ fees and costs.

I. Legal Standards for Default

Federal Rule of Civil Procedure 55 provides a “two-step process” for obtaining a

default judgment. Priestly v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The

Plaintiff must first obtain an entry of default when a defendant “has failed to plead or

otherwise defend” in an action. Fed. R. Civ. P. 55(a). Second, after the certificate of

default is entered, and on the plaintiff’s application, the district court may then enter a

default judgment. Fed. R. Civ. P. 55(b)(2); see also E.D.N.Y. Local Civ. R. 55.2(b). A

“plaintiff is not entitled to a default judgment as a matter of right simply because a

party is in default.” Finkel v. Universal Elec. Corp., 970 F. Supp. 2d 108, 118 (E.D.N.Y.

2013). Rather, the decision to grant a motion for default judgment is “left to the sound

discretion of [the] district court because it is in the best position to assess the individual

circumstances of a given case and to evaluate the credibility and good faith of the

parties.”4 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).

4 A plaintiff must also establish compliance with the procedural requirements of

E.D.N.Y. Local Civil Rules 7.1, 55.1, and 55.2. Having reviewed the filings in this case, the Court

finds that Plaintiff’s motion papers substantially comport with these rules. Specifically, Plaintiff

(1) requested a certificate of default largely in accordance with Local Rule 55.1(a) and later

represented that Defendant Velazquez was not in active military service as required by Local

Rule 55.1(a), (see Req. for Certificate of Default, ECF No. 11; Status Report, ECF No. 20);

(2) demonstrated that Defendants have failed to defend the action and that the pleadings were

properly served, in accordance with Local Rule 55.1(a)(2), (see Aff. of Service Mesa Azteca, ECF

No. 16-2; Aff. of Service Joaquin F. Velazquez, ECF No. 16-5; Decl. in Supp. of Mot. for Default

J., ECF No. 16, ¶¶ 5–16); and (3) certified the mailing of Plaintiff’s default judgment motion,

supporting documents, and supplemental submission to Defendant Velazquez at his last known

residential address, and the mailing of the default motion and supporting documents, as well as

The district court must also determine whether the plaintiff’s “allegations

establish [the defendant’s] liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79,

84 (2d Cir. 2009). In making this determination, the “court is required to accept all of the

. . . factual allegations as true and draw all reasonable inferences in [the plaintiff’s]

favor.” Id. It is “the plaintiff’s burden to demonstrate that those uncontroverted

allegations, without more, establish the defendant[s’] liability on each asserted cause of

action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012).

Moreover, while a default constitutes an admission of liability as to well-pleaded

allegations, a default is “not considered an admission of damages.” Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Under Federal

Rule of Civil Procedure 55(b)(2), courts have discretion to decide whether an

evidentiary hearing is necessary or whether the damages can be determined based on

detailed affidavits or documentary evidence. Action S.A. v. Marc Rich & Co., Inc., 951

F.2d 504, 509 (2d Cir. 1991). “The district court must instead conduct an inquiry in order

to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec.

(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Here, too, the “plaintiff bears

the “supplemental declaration of Jesse Barton, Esq., in support of plaintiff’s motion for default

judgment, exhibit A, notice of motion for default judgment, complaint, default judgment, [and]

exhibits” to Corporate Defendant at its business address, in accordance with Local Rule

55.2(a)(3), (see Affirmation of Service, ECF No. 21; Certificate of Service, ECF No. 25; see also

Certificate of Service, ECF No. 18).

Although Plaintiff did not submit a memorandum of law “in compliance with Local

Rule 7.1(a)(2), the Second Circuit has made it clear that the court has broad discretion to excuse

noncompliance with the Local Rules.” See Tr. of Loc. 813 Pension Trust Fund v. Argento Rubbish

Removal, Inc., No. 22-CV-5683 (FB) (PK), 2023 WL 5961658, at *3 (E.D.N.Y. Aug. 21, 2023)

(quotation marks omitted), report and recommendation adopted, 2023 WL 5956787 (E.D.N.Y. Sept.

13, 2023). Plaintiff’s counsel filed a declaration in support of Plaintiff’s default judgment motion

that “contains case law and legal analysis that would normally be provided in a Memorandum

of Law”; Plaintiff’s non-compliance with Local Rule 7.1 is therefore excused. See id. at *4.

the burden of presenting proof of damages, which may take the form of documentary

evidence or detailed affidavits.” Joe Hand Promotions, Inc. v. Benitez, No. 18-CV-6474

(ARR) (PK), 2020 WL 5519200, at *3 (E.D.N.Y. Aug. 27, 2020), report and recommendation

adopted, 2020 WL 5517240 (E.D.N.Y. Sept. 14, 2020); see also Tamarin v. Adam Caterers,

Inc., 13 F.3d 51, 53–54 (2d Cir. 1993) (explaining that courts can assess damages based on

“‘detailed affidavits and documentary evidence’” (quoting Fustok v. ContiCommodity

Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). In the default posture, the moving party is

“entitled to all reasonable inferences from the evidence offered.” Au Bon Pain Corp. v.

Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

Specific to FLSA cases, “in the absence of rebuttal by defendants, plaintiffs’

recollection and estimates of hours worked are presumed to be correct.” Ting Yao Lin v.

Hayashi Ya II, Inc., No. 08-CV-6071 (SAS) (AJP), 2009 WL 289653, at *3 (S.D.N.Y. Jan. 30,

2009), report and recommendation adopted, 2009 WL 513371 (S.D.N.Y. Feb. 27, 2009); see also

Chao v. Vidtape, Inc., 196 F. Supp. 2d 281, 293 (E.D.N.Y. 2002). Here, Plaintiff seeks

compensatory damages and attorneys’ fees and costs. (See Compl., ECF No. 1, ¶¶ 66–

67.) For the following reasons, the Court recommends entry of a default judgment in

Plaintiff’s favor and an award of damages and interest as detailed below.

II. Entry of Default

In determining whether a defendant’s conduct warrants entry of a default

judgment, courts apply the same factors applicable to a motion to set aside entry of

default. See Enron Oil, 10 F.3d at 96 (noting that “the factors examined in deciding

whether to set aside a default or a default judgment are the same”). These factors

include “1) whether the defendant’s default was willful; 2) whether [the] defendant has

a meritorious defense to [the] 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 Constr. Corp., No. 02-CV-9044 (LTS)

(GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Enron Oil, 10 F.3d at 96.

“Other relevant equitable factors may also be considered, for instance, whether the

failure to follow a rule of procedure was a mistake made in good faith and whether the

entry of default would bring about a harsh or unfair result.” Enron Oil, 10 F.3d at 96. In

this case, the court concludes that entry of a default judgment is appropriate.

A. Willfulness

In the context of default, willfulness “refer[s] to conduct that is more than merely

negligent or careless.” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). That said, a

defendant’s “failure to respond to a complaint evinces willful default.” Antoine v.

Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 80 (E.D.N.Y. 2020) (citing McNulty, 137 F.3d

at 738–39). Willfulness may also be presumed where, in addition to being properly

served with the complaint, the defendant is notified of court proceedings and yet fails

to respond. See, e.g., United States v. DiPaolo, 466 F. Supp. 2d 476, 482 (S.D.N.Y. 2006); see

also Antoine, 489 F. Supp. 3d at 81.

Defendants’ failure to respond or otherwise appear in this action supports a

finding of willfulness. Plaintiff adequately served Corporate Defendant by delivering

the summons and complaint to the New York Secretary of State, as permitted by New

York law. (Aff. of Service, ECF No. 6.) See N.Y. Bus. Corp. Law § 306(b)(1); Fed. R. Civ.

P. 4(e)(1), (h)(1); see also Jean-Louis v. Warfield, 898 F. Supp. 2d 570, 574 (E.D.N.Y. 2012)

(explaining that New York law permits service upon a corporation via the New York

Secretary of State). Plaintiff served Defendant Velazquez by in-person service on a

person identified as a coworker, at the location of Corporate Defendant’s restaurant, at

91 Wyckoff Ave., Brooklyn, NY 11237, on January 30, 2024, and by mail to the business

address on January 31, 2024. (Aff. of Service, ECF No. 10.) See N.Y. C.P.L.R. § 308(2)

(allowing service “to a person of suitable age and discretion at the actual place of

business . . . of the person to be served and by . . . mailing the summons to the person to

be served . . . at [their] actual place of business”).

Defendants failed to answer within 21 days of service. (See Affs. of Service, ECF

Nos. 6, 10; Entry of Default, ECF No. 13.) Defendants likewise failed to respond after

Plaintiff moved for a default judgment and after receiving notice of the motion both

from Plaintiff and the Court. (See Certificate of Service, ECF No. 18; April 19, 2024

Scheduling Order, ECF No. 19.) In addition, as set forth above, the motion paperwork

was formally served on Corporate Defendant on June 14, 2024, and mailed to the

business address of Corporate Defendant on July 15, 2024. (Aff. of Service, ECF No. 24;

Certificate of Service, ECF No. 25.) Moreover, as set forth above, default paperwork was

mailed to the residential address of Defendant Velazquez on May 23, 2024, and July 15,

2024. (Affirmation of Service, ECF No. 21; Certificate of Service, ECF No. 25.) In light of

Defendants’ failure to respond, despite being provided multiple notices of this

proceeding, the Court weighs this factor in favor of default.

B. Meritorious Defense

“To satisfy the criterion of a ‘meritorious defense,’ the defense need not be

ultimately persuasive at this stage.” Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d

Cir. 1996). Rather, “‘[a] defense is meritorious if it is good at law so as to give the

factfinder some determination to make.’” Id. (quoting Anilina Fabrique de Colorants v.

Aakash Chems. & Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). Here, Defendants have

entirely failed to respond to the complaint. In such instances, “courts are unable to

make a determination [of] whether the defendant has a meritorious defense.” Joseph v.

HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013). Accordingly, “this factor

weighs in favor of granting a default judgment.” Id.

C. Prejudice

“The final factor the Court must consider is whether the non-defaulting part[y]

would be prejudiced if the motion for default were to be denied.” Id. at 148. Denying a

motion for default is prejudicial to the plaintiff where “‘there are no additional steps

available to secure relief.’” Id. (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No.

06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008)).

In light of Defendants’ failure to respond to both Plaintiff’s and the Court’s

notices, “there is no indication that requiring Plaintiff[] to take further steps . . . would

be effective in eliciting a response from Defendants.” Mason Tenders, 2003 WL 1960584,

at *3. The Court therefore finds that Plaintiff would be unfairly prejudiced by denial of

the motion for default.

All three factors weigh in favor of default. Seeing no other equitable reason for

denying Plaintiff’s motion, the Court recommends entering a default judgment.

III. Liability and Damages

A. FLSA Liability

To establish liability under the FLSA, a “plaintiff must prove the following:

(1) the defendant is an employer subject to . . . [the] FLSA; (2) the plaintiff is an

‘employee’ within the meaning of . . . [the] FLSA; and (3) the employment relationship

is not exempted from . . . [the] FLSA.” Payamps v. M & M Convenience Deli & Grocery

Corp., No. 16-CV-4895 (LDH) (SJB), 2018 WL 3742696, at *4 (E.D.N.Y. May 18, 2018).

1. Employers Subject to the FLSA

An employer is subject to both the minimum wage and the overtime provisions

of the FLSA if (1) their employees are “engaged in commerce,” or (2) the employer is an

“enterprise engaged in commerce.” 29 U.S.C. § 206; see also Padilla v. Manlapaz, 643 F.

Supp. 2d 298, 299 (E.D.N.Y. 2009). These two methods of establishing FLSA coverage

are known as “individual coverage” and “enterprise coverage,” respectively. Jacobs v.

N.Y. Foundling Hosp., 483 F. Supp. 2d 251, 257 (E.D.N.Y. 2007). A defendant is an

“[e]nterprise engaged in commerce or in the production of goods for commerce” if the

defendant is an enterprise that:

Has employees engaged in commerce or in the production of goods for

commerce, or that has employees handling, selling, or otherwise working

on goods or materials that have been moved in or produced for commerce

by any person; and . . . whose annual gross volume of sales made or

business done is not less than $500,000.

29 U.S.C. §§ 203(s)(1)(A)(i)–(ii). “Commerce” is, in turn, defined as “trade, commerce,

transportation, transmission, or communication among the several States or between

any State and any place outside thereof.” 29 U.S.C. § 203(b).

Here, the Court finds that Plaintiff has adequately alleged that Corporate

Defendant is an “[e]nterprise engaged in commerce” and therefore subject to the FLSA.

29 U.S.C. § 203(s). Plaintiff alleges that Corporate Defendant is a restaurant and

employed him as a delivery worker, dishwasher, and cook and that “Defendants

and/or their enterprise were directly engaged in interstate commerce,” and that

“numerous items that were used in the restaurant on a daily basis are goods produced

outside of the State of New York.” (Compl., ECF No. 1, ¶ 31.) Plaintiff further alleges

that Corporate Defendant “had a gross annual volume of sales of not less than

$500,000.” (Id. ¶ 30.)

Although Plaintiff’s allegations are largely conclusory, courts have noted that

“‘virtually every enterprise in the nation doing the requisite dollar volume of business

is covered by the FLSA.’” Archie v. Grand Cent. P’ship, Inc., 997 F. Supp. 504, 530

(S.D.N.Y. 1998); see also Jacobs, 577 F.3d at 99 n.7. In addition, even “local business

activities fall within the reach of the FLSA when an enterprise employs workers who

handle goods or materials that have moved or been produced in interstate commerce.”

Archie, 997 F. Supp. at 530. Here, the Court may safely infer that such goods were used

in the operation of Defendant’s restaurant business, Mesa Azteca. (See Compl., ECF No.

1, ¶¶ 31, 36). See Romanowicz, 577 F.3d at 84 (“In light of [a defendant’s] default, a court

is required to accept all of [plaintiff’s] factual allegations as true and draw all reasonable

inferences in its favor. . . .”); Shim v. Millennium Grp., No. 08-CV-4022 (FB) (VV), 2009

WL 211367, at *3 (E.D.N.Y. Jan. 28, 2009) (finding that employer was engaged in

interstate commerce where it was “simply inconceivable that none of the [goods] used”

in its business “originated outside of New York”).

Given the nature of Corporate Defendant’s business, it is reasonable to infer that

the materials used in operating the restaurant were not exclusively sourced in New

York. Accordingly, the Court finds that Plaintiff’s allegations are sufficient to establish

that Corporate Defendant is subject to the FLSA.

With respect to Defendant Velazquez, the FLSA defines “employer” to include

“any person acting directly or indirectly in the interest of an employer in relation to an

employee.” 29 U.S.C. § 203(d). “An individual may be liable as an employer under the

FLSA so long as he exercises ‘operational control’ over the employee in question[,] . . .

and individuals who are found to be ‘employers’ under the FLSA may be held jointly

and severally liable to the plaintiff.” Saucedo v. On the Spot Audio Corp., No. 16-CV-451

(CBA) (CLP), 2016 WL 8376837, at *5 (E.D.N.Y. Dec. 21, 2016) (citation omitted), report

and recommendation adopted, 2017 WL 780799 (E.D.N.Y. Feb. 28, 2017), vacated by

stipulation on other grounds, 2018 WL 4347791 (E.D.N.Y. Jan. 23, 2018). Here, Plaintiff

alleges that Defendant Velazquez “determine[d] the wages and compensation of the

employees of Defendants, including Plaintiff Serrano, establishe[d] the schedules of the

employees, maintain[ed] employee records, and ha[d] the authority to hire and fire

employees.” (Compl., ECF No. 1, ¶ 19.) Taking these allegations as true in the context of

this default, the Court finds that Defendant Velazquez was an employer subject to the

FLSA. See, e.g., Lopez v. Royal Thai Plus, LLC, No. 16-CV-4028 (NGG) (SJB), 2018 WL

1770660, at *4 n.4 (E.D.N.Y. Feb. 6, 2018), report and recommendation adopted, 2018 WL

1770555 (E.D.N.Y. Apr. 12, 2018).

2. Employees Covered by the FLSA

Under the FLSA, an “employee” generally means “any individual employed by

an employer.” 29 U.S.C. § 203(e)(1); see generally id. § 203(e). “In light of [this] broad

definition . . . , the Second Circuit has found allegations which simply ‘state where the

plaintiffs worked, outline their positions, and provide their dates of employment,’

sufficient to support a finding of employee status . . . .” Suggs v. Crosslands Transp., Inc.,

No. 13-CV-6731 (ARR) (MDG), 2015 WL 1443221, at *3 (E.D.N.Y. Mar. 27, 2015) (quoting

Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 91 (2d Cir. 2013)).

Here, Plaintiff alleges that he “was employed by Defendants at Mesa Azteca” in

Brooklyn. (Compl., ECF No. 1, ¶ 15.) “It follows, therefore, that for purposes of this

default, [Plaintiff] qualifies as an ‘employee’ under the FLSA.” Garcia v. Badyna, No. 13-

CV-4021 (RRM) (CLP), 2014 WL 4728287, at *5 (E.D.N.Y. Sept. 23, 2014); see also Velu v.

Velocity Exp., Inc., 666 F. Supp. 2d 300, 306 (E.D.N.Y. 2009) (stating that the “ultimate

question is . . . ‘whether, as a matter of economic reality, the worker[] depend[s] upon

someone else’s business for the opportunity to render service or [is] in business for

[himself]’” (alterations in original) (quoting Godoy v. Rest. Opportunity Ctr. of N.Y., Inc.,

615 F. Supp. 2d 186, 192–93 (S.D.N.Y. 2009))). Taking these allegations as true in the

context of this default, the Court finds that Plaintiff was an employee covered by the

FLSA. See id.

3. FLSA Exemptions

Finally, the Court does not find any basis for exempting the employment

relationship at issue here from the FLSA’s provisions. See 29 U.S.C. § 213(a) (setting

forth the relevant exemptions). As noted above, Plaintiff alleges that Defendants

employed him as a delivery worker, dishwasher, and cook — a class of employment not

contemplated by any of the statutory exemptions. (Compl., ECF No. 1, ¶ 35.) See 29

U.S.C. § 213(a). For the purposes of this default motion, Plaintiff has therefore

adequately alleged facts establishing applicability of the FLSA, as a predicate to his

claims under that statute.

B. Liability Under the NYLL

To recover under the NYLL, Plaintiff must first “prove that he was an employee

and that Defendants were employer[s] as defined by the statute and accompanying

regulations.” Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 360 (E.D.N.Y. 2015)

(quotation marks omitted) (alteration in original) (citing NYLL § 650 et seq.; N.Y. Comp.

Codes R. & Regs. tit. 12, § 142-2.2); see also Lauria v. Heffernan, 607 F. Supp. 2d 403, 407–

08 (E.D.N.Y. 2009). “The NYLL’s definitions are nearly identical to the FLSA’s.” Glatt v.

Fox Searchlight Pictures Inc., 293 F.R.D. 516, 526 (S.D.N.Y. 2013), rev’d on other grounds,

811 F.3d 528 (2d Cir. 2016); see Ethelberth, 91 F. Supp. 3d at 360 (explaining that the

NYLL’s definition of an employer is broader than the FLSA’s). Having already found

that Plaintiff has sufficiently pleaded that Defendants were employers and that Plaintiff

was an employee under the FLSA, the Court finds that Plaintiff has also adequately

alleged an employee relationship with Defendants under the NYLL.

C. Violations of the FLSA and the NYLL

Having determined Defendants’ liability, the Court must now decide whether

Plaintiff is entitled to a default judgment and damages. As a preliminary matter, the

Court notes that Plaintiff’s claims fall within the relevant statutes of limitation.5 See 29

U.S.C. § 255(a) (two years for ordinary FLSA violations); NYLL § 198(3) (six years).

1. Overtime Violation

Plaintiff alleges that Defendants violated the FLSA by failing to pay him

overtime wages for hours worked in excess of 40 hours per week. (See Compl., ECF No.

1, ¶¶ 63–68.) Accepting Plaintiff’s factual allegations as true, the Court recommends

finding that Defendants’ default amounts to an admission of liability for violating the

overtime provisions of the FLSA and the NYLL.

Under both the FLSA and the NYLL, an employee must “be compensated at a

rate of no less than one and one-half times the regular rate of pay for any hours worked

in excess of forty per week.” Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723

F.3d 192, 200 (2d Cir. 2013) (citing 29 U.S.C. § 207(a)); see N.Y. Comp. Codes R. & Regs.

tit. 12, § 142-2.2 (“An employer shall pay an employee for overtime at a wage rate of one

and one-half times the employee’s regular rate in the manner and methods provided in

. . . the [FLSA].”). Accordingly, to establish liability under the FLSA for an unpaid

overtime claim, the “plaintiff must sufficiently allege 40 hours of work in a given

workweek as well as some uncompensated time in excess of the 40 hours.” Lundy v.

Cath. Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). Plaintiffs must also

5 The Court notes that Plaintiff alleges “willful” violations of the FLSA by Defendants.

(Compl., ECF No. 1, ¶¶ 55, 61, 68, 72.) Willful FLSA claims present a higher pleading burden

than ordinary FLSA claims but allow plaintiffs to take advantage of a three-year statute of

limitations. See Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 320–25 (2d Cir. 2021) (discussing 29

U.S.C. § 255). As stated above, Plaintiff filed his claims within the two-year statute of limitations

for ordinary FLSA claims. The Court therefore need not assess whether Plaintiff has adequately

established willfulness “as an independent element of [his] claims.” Id. at 322.

show “that the[ir] employer had actual or constructive knowledge” of their overtime

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

From February 2022 to April 2022, Plaintiff alleges he was paid $16.00 per hour,

and from May 2022 to May 5, 2023, he alleges he was paid $17.00 per hour. (Compl.,

ECF No. 1, ¶¶ 43–44.) For any hours worked in excess of 40 per week, Plaintiff claims he

was entitled to overtime pay at a rate of $24.00 per hour during the first period ($16.00 x

1.5) and $25.50 per hour during the second period ($17.00 x 1.5). (Id. ¶¶ 43–44, 71.)6

Plaintiff provided a proposed damages calculation in support of his motion, alleging a

total wage deficiency of $6,378,00. (See Damages Chart, ECF No. 16-11.)

The Court has independently calculated Plaintiff’s damages based on the

allegations in the complaint and information supplied in Plaintiff’s damages chart. The

Court’s calculation starts with the claims in the complaint, in which Plaintiff details his

hours as follows. From February 2022 to on or about August 21, 2022, Plaintiff states

that he worked five days per week for two weeks of each month, averaging 50 to 54

hours per week. (Compl., ECF No. 1, ¶ 39.) During the other two weeks of each month

in that time period, he claims he worked six days per week, averaging 60 to 70 hours

per week. (Id.) From mid-November 2022 until on or about December 25, 2022, Plaintiff

alleges that he worked three days per week, averaging 25 to 35 hours per week. (Id.

6 The Court notes that because Plaintiff worked in the hospitality industry, the Court has

considered the applicability of the New York Hospitality Industry Wage Order. See N.Y. Comp.

Codes R. & Regs. tit. 12, § 146 et seq. The Hospitality Wage Order provides that “[i]f an

employer fails to pay an employee an hourly rate of pay, the employee’s regular hourly rate of

pay shall be calculated by dividing the employee’s total weekly earnings . . . by the lesser of 40

hours or the actual number of hours worked by that employee during the work week.” Id.

§ 146-3.5(b). Here, the complaint alleges that Plaintiff was paid at an hourly rate of pay and

further alleges his overtime rate; the Court thus relies on Plaintiff’s allegations to calculate the

wage deficiency. (Compl., ECF No. 1, ¶¶ 43–44.)

¶ 40.) From December 26, 2022, to May 5, 2023, Plaintiff claims he worked five days per

week, averaging 50 to 54 hours per week. (Id. ¶ 41.) Using the average weekly hours for

each of the relevant periods, the Court estimates that Plaintiff is entitled to overtime

wages for 234 hours at $24.00 per hour and for 524 hours at $25.50 per hour. This

estimate is derived from Plaintiff’s claim that he worked specific ranges of hours over

two-week periods during the relevant time frames. Specifically, the Court estimates the

number of overtime hours worked in each period by taking the mean amount of

overtime Plaintiff worked per week and multiplying that number by the number of

weeks within the period. For example, for the two-week period between February 1,

2022, and February 14, 2022, Plaintiff alleged he worked, on average, between 50 to 54

hours per week (Compl., ECF No. 1, ¶ 39), or 10 to 14 hours of overtime per week, with

a mean of 12 hours per week. The Court thus estimates that Plaintiff worked 24 hours of

overtime during that two-week period and so on.

From there, to determine the excess wages owed, the weekly pay Plaintiff

received is subtracted from the total amount due per week, with the exception of

periods when Plaintiff may have been paid more than the estimates suggest was due.7

7 As set forth below, for some periods, Plaintiff appears to have been paid more than the

average hours estimates suggest was due, often at the rate of one hour per two-week period.

These “overpayments” are represented by negative values in the Total Underpayment column

in the chart below. It is unclear whether these payments represent actual compensation for

hours worked and paid at a non-overtime rate, spread-of-hours compensation, or another

accounting practice. In any event, the Court’s damages calculation does not offset Plaintiff’s

damages from one week by deducting an overage from another week. See generally Guan v. Long

Island Bus. Inst., Inc., No. 15-CV-2215 (CBA) (VMS), 2017 WL 11703860, at *5 (E.D.N.Y. Sept. 30,

2017) (declining to offset deficient overtime compensation by overpayments made during a

different work week); cf. Harold Levinson Assocs., Inc. v. Chao, 37 F. App’x 19, 21–22 (2d Cir. 2002)

(summary order) (rejecting “defendants’ argument that their purported ‘overpayments’ of

overtime in certain weeks should offset their liability for other weeks”). As set forth below, the

total amount of “overpayments” equals $124.00, which the Court does not deduct from the

overall total due to Plaintiff.

Plaintiff provided the amount that he was paid per week in his proposed damages

calculation, and those amounts are credited against the total pay due in the chart below.

(See Damages Chart, ECF No. 16-11; Decl. in Supp. of Mot. for Default J., ECF No. 16,

¶ 45 (describing weekly “credited” pay as “the amount of wages Defendants actually

paid” Plaintiff).)

To recap, using the average weekly hours for each of the relevant periods, the

Court estimates that Plaintiff is entitled to overtime wages for 234 hours at $24.00 per

hour and for 524 hours at $25.50 per hour. As further detailed in the chart below, the

Court accordingly finds that Plaintiff is entitled to overtime damages totaling $6,346.00.

($35,180.00 in total non-overtime pay owed to Plaintiff + ($24.00 x 234 hours) + ($25.50 x

524 hours)) – $47,936.00 in total credited pay + $124.00 in total “overpayments” =

$6,346.00.)

P RDe ar a ni to ged e W Pepe ree iork ds R Ra Pt e ae g y o . f ( pP P 4 ea 0 xR e rr y a h rr we te i o eg p o geu ). e .e d r kr s RO aT te PH eO po reu iT orr ds ( xDO OP Ou TeT T e r h iP roop aa ud tey err s ) +P (RP a OT eey po Tgr e .D it pora p aul d a y ye )

C P Pr a ee y rd ipi ot ee drd pU PaT y en po rmd e it ora e e l r dn - t

2/1/22 - 2 $16.00 $1,280 $24.00 24 $576 $1,856 $1,872.00 -$16.00

2/14/22

2/15/22 - 2 $16.00 $1,280 $24.00 50 $1,200 $2,480 $1,872.00 $608.00

2/28/22

3/1/22 - 2 $16.00 $1,280 $24.00 24 $576 $1,856 $1,872.00 -$16.00

3/14/22

3/15/22 - 2 $16.00 $1,280 $24.00 50 $1,200 $2,480 $1,872.00 $608.00

3/28/22

3/29/22 - 2 $16.00 $1,280 $24.00 24 $576 $1,856 $1,872.00 -$16.00

4/11/22

4/12/22 - 2 $16.00 $1,280 $24.00 50 $1,200 $2,480 $1,872.00 $608.00

4/25/22

4/26/22 - 1 $16.00 $640 $24.00 12 $288 $928 $936.00 -$8.00

5/2/22

5/3/22 - 1 $17.00 $680 $25.50 12 $306 $986 $994.50 -$8.50

5/9/22

5/10/22 - 2 $17.00 $1,360 $25.50 50 $1,275 $2,635 $1,989.00 $646.00

5/23/22

5/24/22 - 2 $17.00 $1,360 $25.50 24 $612 $1,972 $1,989.00 -$17.00

6/6/22

6/7/22 - 2 $17.00 $1,360 $25.50 50 $1,275 $2,635 $1,989.00 $646.00

6/20/22

6/21/22 - 2 $17.00 $1,360 $25.50 24 $612 $1,972 $1,989.00 -$17.00

7/4/22

P RDe ar a ni to ged e W Pepe ree iork ds R Ra Pt e ae g y o . f ( pP P 4 ea 0 xR e rr y a h rr we te i o eg p o geu ). e .e d r kr s RO aT te PH eO po reu iT orr ds ( xDO OP Ou TeT T e r h iP roop aa ud tey err s ) +P (RP a OT eey po Tgr e .D it pora p aul d a y ye )

C P Pr a ee y rd ipi ot ee drd pU PaT y en po rmd e it ora e e l r dn - t

7/5/22 - 2 $17.00 $1,360 $25.50 50 $1,275 $2,635 $1,989.00 $646.00

7/18/22

7/19/22 - 2 $17.00 $1,360 $25.50 24 $612 $1,972 $1,989.00 -$17.00

8/1/22

8/2/22 - 2 $17.00 $1,360 $25.50 50 $1,275 $2,635 $1,989.00 $646.00

8/15/22

8/16/22 - 1 $17.00 $680 $25.50 12 $306 $986 $994.50 -$8.50

8/22/22

18 1/ /2 13 2/ /2 22 2 - 8

12 n/a n/a n/a n/a n/a n/a n/a n/a

1 11 2/ /1 23 4/ /2 22 2 9– 6 $17.00 $3,060 $25.50 0 $0.00 $3,060 $3,060.00 $0.00

228 (12

12 5/ /2 55 // 22 32 10 – 19 $17.00 $12,920 $25.50 h pou err s $5,814 $18,734 $16,796.00 $1,938.00

week)

Sub-Totals $35,180 $18,978 $54,158 $47,936 $6,222.00

Total = Total Pay Due ($54,158.00) – Credited Pay ($47,936.00) + $124.00 “overpayment” $6,346.00

8 Plaintiff did not allege unpaid overtime wages for the period between August 22, 2022,

and mid-November 2022.

9 Plaintiff alleged that he worked an average of 30 hours per week during this period.

(See Compl., ECF No. 1, ¶ 40; Decl. in Supp. of Mot. for Default J., ECF No. 16, ¶ 54.) As he did

not work any overtime, he is not entitled to any overtime pay for this period. Additionally,

Plaintiff alleged in his motion for default judgment that this period occurred “[f]rom

approximately mid-November 2022 until on or about December 25, 2022.” (Decl. in Supp. of

Mot. for Default J., ECF No. 16, ¶ 29.) While Plaintiff uses November 15, 2022, as the starting

date for this period in his damages calculation (see Damages Chart, ECF No. 16-11), the

November 13, 2022 date is used here instead to keep each week whole. The date adjustment has

no material impact on the damages calculation.

10 Plaintiff alleges that he worked 50 to 54 hours per week “[f]rom approximately

December 26, 2022, until on or about May 5, 2023.” (Decl. in Supp. of Mot. for Default J., ECF

No. 16, ¶ 30; Damages Chart, ECF No. 16-11.) The December 25, 2022 date is used here instead

to keep each week whole. As set forth above, the Court estimates the average overtime per

week at 12 hours, resulting in 228 hours worked during this period. (12 x 19 = 228.) Starting the

pay period one day before Plaintiff’s estimate to keep the week whole has no material impact on

the damages calculation.

2. New York Wage Theft Prevention Act Violations

a. Wage Theft Prevention Act

Plaintiff further requests a default judgment with respect to Defendants’ alleged

violations of the NYLL’s wage notice and statement requirements, which were codified

as part of the WTPA. See NYLL §§ 195, 195-3. Under these provisions, an employer must

provide its employees:

(1) A notice at the time of hiring “in writing in English and in the

language identified by each employee as the primary language of such

employee” containing specific information, including, inter alia, the rate of

pay and basis thereof, the method of payment, allowances claimed as part

of the minimum wage, the regular pay day, and the identity of the

employer; and (2) statements with every payment of wages listing specific

information, including, inter alia, the dates of work covered by that

payment of wages, the name, address and phone number of employer,

rate of pay and basis thereof, gross wages, deductions, any allowances

claimed as part of the minimum wage, and net wage.

Imbarrato v. Banta Mgmt. Servs. Inc., No. 18-CV-5422 (NSR), 2020 WL 1330744, at *8

(S.D.N.Y. Mar. 20, 2020) (footnote omitted) (quoting NYLL § 195(1), (3)). An employer

who fails to provide the required notices and statements is liable for statutory damages.

See NYLL §§ 198(1-b), (1-d).

b. Article III Standing

A plaintiff must establish Article III standing with respect to each claim alleged

and cannot rely on a district court’s supplemental jurisdiction over state-law claims to

do so. See Guthrie v. Rainbow Fencing, Inc., 113 F.4th 300, 302, 304 (2d Cir. 2024)

(analyzing Article III standing in the context of NYLL wage notice and statement

claims). “The requirements of Article III standing are well established: ‘[A] plaintiff

must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial

decision.’” Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 141 (2d Cir. 2021)

(alteration in original) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). These

requirements are “an indispensable part of [a] plaintiff’s case” and must be established

“with the manner and degree of evidence required at the successive stages of the

litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). “At the default

judgment stage, as at the motion to dismiss stage, the plaintiff ‘bears the burden of

alleging facts that affirmatively and plausibly suggest that the plaintiff has standing to

sue.’” Hennessy ex rel. Hennessy v. Poetica Coffee Inc., No. 21-CV-5063 (KAM) (RML), 2022

WL 4095557, at *2 (E.D.N.Y. Sept. 7, 2022) (quoting Calcano v. Swarovski N. Am. Ltd., 36

F.4th 68, 75 (2d Cir. 2022)).

Importantly, “a plaintiff must demonstrate standing for each claim he seeks to

press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). This includes any state

law claim filed in federal court pursuant to the court’s supplemental jurisdiction. In

other words, the court cannot “exercise supplemental jurisdiction over a [state law]

claim that does not itself satisfy [the] elements of the Article III inquiry.” Id. at 335; see

Sharehold Representative Servs. LLC v. Sandoz Inc., No. 12-CV-6154 (DLC), 2013 WL

4015901, at *7 (S.D.N.Y. Aug. 7, 2013) (“The fact that the claims arise from a common set

of facts does not relieve the plaintiff of its obligation to demonstrate constitutional

standing to sue for each one.”); see also Guthrie, 113 F.4th at 304 (finding that

supplemental jurisdiction does not excuse a plaintiff from needing to demonstrate

standing for a state law statutory damages claim); Deng v. Frequency Elecs., Inc., 640 F.

Supp. 3d 255, 264–67 (E.D.N.Y. 2022) (concluding that NYLL § 195 creates distinct

causes of action for wage notice and statement claims, that Article III standing is

required for each, and that the court lacked subject matter jurisdiction over the claims).

The Supreme Court has also “rejected the proposition that ‘a plaintiff

automatically satisfies the injury-in-fact requirement whenever a statute grants a person

a statutory right and purports to authorize that person to sue to vindicate that right.’”

TransUnion LLC v. Ramirez, 594 U.S. 413, 414 (2021) (quoting Spokeo, 578 U.S. at 341).

“Only those plaintiffs who have been concretely harmed by a defendant’s statutory

violation may sue that private defendant over that violation in federal court.” Id.

(emphasis in original). In the context of claims brought under the WTPA, the alleged

concrete injury-in-fact must “result[] from the failure to provide the wage notices and

wage statements to maintain a claim for statutory damages under New York Labor Law

§ 195.” Guthrie, 113 F.4th at 302–03. Without a concrete injury fairly traceable to the

alleged statutory violation, a plaintiff lacks Article III standing, and, in turn, the district

court cannot enter a default judgment with respect to the corresponding statutory cause

of action. See, e.g., Sevilla v. House of Salads One LLC, No. 20-CV-6072 (PKC) (CLP), 2022

WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022).

Here, although Plaintiff alleges that Defendants failed to provide the required

wage notices and statements, he has not articulated any concrete injury-in-fact resulting

from this failure. (Compl., ECF No. 1, ¶¶ 78–80, 81–83.) Plaintiff does not allege any

injuries that flowed from Defendants’ purported WTPA violations; he only alleges that

he was not provided wage notices and wage statements, and that such failure violated

the law. (Id.) Absent any allegation of facts that detail how Plaintiff was harmed, or how

his harm was fairly traceable to Defendants’ failure to provide wage notices and

statements, Plaintiff has failed to plead “facts that affirmatively and plausibly suggest

that [he] has standing” with respect to his wage notice and statement claims. Hennessy,

2022 WL 409557, at *2 (quotation marks omitted); see Soule ex rel. Stanescu v. Conn. Assoc.

of Schs., Inc., 57 F.4th 43, 50 (2d Cir. 2022) (“[C]ourts ‘need not credit a complaint’s

conclusory statements without reference to its factual context.’” (quoting Conn. Parents

Union v. Russell-Tucker, 8 F.4th 167, 172 (2d Cir. 2021)); see also Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007) (requiring that plaintiff’s allegations “nudge[] their claims

across the line from conceivable to plausible”).

Accordingly, the Court finds that as presently pleaded, Plaintiff has failed to

state facts from which to plausibly infer that he suffered a concrete injury under Article

III as to his WTPA claims. See Guthrie, 113 F.4th at 310. Therefore, the Court respectfully

recommends dismissal of Plaintiff’s NYLL wage notice and statement claims without

prejudice, for lack of Article III jurisdiction. See, e.g., Lopez v. Martha’s Cocina Mexicana,

LLC, No. 23-CV-2053 (LDH) (TAM), 2023 WL 9603828, at *12 (E.D.N.Y. Dec. 27, 2023),

report and recommendation adopted, Jan. 30, 2024 ECF Order Adopting R. & R.; Neor v.

Acacia Network, Inc., No. 22-CV-4814 (ER), 2023 WL 1797267, at *4 (S.D.N.Y. Feb. 7,

2023); Sevilla, 2022 WL 954740, at *7; Beh v. Cmty. Care Companions Inc., No. 19-CV-1417

(JLS) (MJR), 2022 WL 5039391, at *7–9 (W.D.N.Y. Sept. 29, 2022); Metcalf v. TransPerfect

Translations Int’l, Inc., 632 F. Supp. 3d 319, 339–41 (S.D.N.Y. 2022).

D. Liquidated Damages and Interest

1. Liquidated Damages

Under the FLSA, an employee is entitled to recover “the amount of their unpaid

minimum wages, or their unpaid overtime compensation” and “an additional equal

amount as liquidated damages.” 29 U.S.C. § 216(b). An employee is also entitled to

recover liquidated damages under the NYLL. See Garcia v. Giorgio’s Brick Oven & Wine

Bar, No. 11-CV-4689 (LLS) (FM), 2012 WL 3339220, at *4 (S.D.N.Y. Aug. 15, 2012)

(“Effective April 9, 2011, Sections 198(1-a) and 663(1) of the NYLL were amended to

provide for liquidated damages equal to one-hundred percent of the amounts

underpaid.”), report and recommendation adopted, 2012 WL 3893537 (S.D.N.Y. Sept. 7,

2012). Because plaintiffs cannot obtain a double recovery, courts award liquidated

damages for unpaid wages under either the FLSA or the NYLL, whichever provides for

a greater recovery. Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018) (per curiam) (“We

therefore interpret the NYLL and FLSA as not allowing duplicative liquidated damages

for the same court of conduct.”); see, e.g., Morales v. Mw Bronx, Inc., No. 15-CV-6296

(TPG), 2016 WL 4084159, at *10 (S.D.N.Y. Aug. 1, 2016). Under these provisions, the

Court recommends an award of liquidated damages equivalent to Plaintiff’s

compensatory damages under the NYLL, i.e., $6,346.00.

2. Prejudgment Interest

As to Plaintiff’s request for prejudgment interest, “‘[i]t is well settled that in an

action for violations of the [FLSA] prejudgment interest may not be awarded in

addition to liquidated damages.’” Begum v. Ariba Disc., Inc., No. 12-CV-6620 (DLC), 2015

WL 223780, at *3 (S.D.N.Y. Jan. 16, 2015) (alteration in original) (quoting Brock v.

Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988) (per curiam)). Because FLSA

liquidated damages are intended to be compensatory and not punitive, prejudgment

interest is not needed to restore plaintiffs to a position they would have been in absent

the wage-protection violation. See Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp.

3d 19, 48 (E.D.N.Y. 2015); see also Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583

(1942).

In contrast to the FLSA, the NYLL permits the award of both liquidated damages

and prejudgment interest. Begum, 2015 WL 223780, at *3. This is because New York state

law views liquidated damages as punitive, not compensatory; prejudgment interest is

thus not considered a duplicative damages award. See Janus v. Regalis Constr., Inc., No.

11-CV-5788 (ARR) (VVP), 2012 WL 3878113, at *8–9 (E.D.N.Y. July 23, 2012) (explaining

that liquidated damages under the NYLL are “punitive in purpose”), report and

recommendation adopted, 2012 WL 3877962 (E.D.N.Y. Sept. 4, 2012).

The availability of both liquidated damages and prejudgment interest under the

NYLL “remains true even where liability is found not only under the NYLL but also

under the FLSA.” Begum, 2015 WL 223780, at *3 (citing Thomas v. iStar Fin., Inc., 652 F.3d

141, 150 n.7 (2d Cir. 2011)). Prejudgment interest is calculated “on the unpaid wages

due under the NYLL, not on the liquidated damages awarded under the state law.”

Mejia v. E. Manor USA Inc., No. 10-CV-4313 (NG) (SMG), 2013 WL 3023505, at *8 n.11

(E.D.N.Y. Apr. 19, 2013), report and recommendation adopted, 2013 WL 2152176 (E.D.N.Y.

May 17, 2013). Here, since Plaintiff is entitled to an equivalent award of compensatory

overtime damages under either the NYLL or the FLSA, the Court finds that Plaintiff is

entitled to prejudgment interest.

The statutory rate of interest in New York is nine percent per annum. N.Y.

C.P.L.R. § 5004. Where damages were incurred at various times, interest may be

calculated from a “single reasonable intermediate date.” Id. § 5001(b). The midpoint of a

plaintiff’s employment is a reasonable intermediate date for purposes of calculating

prejudgment interest. See Fermin, 93 F. Supp. 3d at 49 (collecting cases); see Ying Ying

Dai v. ABNS NY Inc., 490 F. Supp. 3d 645, 662 (E.D.N.Y. 2020). “Most courts in this

district calculate simple prejudgment interest in NYLL actions from the midpoint date

of the claims through the date judgment is entered.” Perez Campos v. Quentin Market

Corp., No. 16-CV-5303 (DLI) (RER), 2018 WL 9945754, at *8 (E.D.N.Y. Oct. 17, 2018)

(citing Fermin, 93 F. Supp. 3d at 49), report and recommendation adopted, Mar. 31, 2019 ECF

Order Adopting R. & R. Under this approach, interest is to be accrued at the simple rate,

from “[the] midpoint date . . . through the date judgment is entered.” Gortat v. Capala

Bros., 949 F. Supp. 2d 374, 386 (E.D.N.Y. 2013).

Here, given that the relevant dates of Plaintiff’s employment are February 2022

to May 5, 2023, the midpoint of Plaintiff’s employment by Defendant was

approximately September 18, 2022. (See Compl., ECF No. 1, ¶ 15.) Accordingly, the

Court recommends that prejudgment interest be awarded under the NYLL on Plaintiff’s

compensatory damages award of $6,346.00 from September 18, 2022, to the date

judgment is entered at a per diem interest rate of $1.56 ($6,346.00 x 0.09 / 365).

3. Post-Judgment Interest

Plaintiffs are also generally entitled to post-judgment interest under 28 U.S.C.

§ 1961(a). Section 1961 provides that “[i]nterest shall be allowed on any money

judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a). Under the

statute, interest is calculated “‘from the date of the entry of judgment, at a rate equal to

the weekly average 1-year constant maturity Treasury yield, as published by the Board

of Governors of the Federal Reserve System, for the calendar week preceding[] the date

of the judgment.’” Guauque Castiblanco v. Don Alex Peru, Inc., No. 20-CV-2235 (MKB)

(RML), 2021 WL 4755701, at *8 (E.D.N.Y. Aug. 20, 2021) (alteration in original). In

Fermin, the court awarded post-judgment interest on all sums awarded pursuant to the

plaintiffs’ FLSA and NYLL wage-and-hour claims. Fermin, 93 F. Supp. 3d at 53. The

same approach is appropriate here. The Court therefore respectfully recommends an

award of post-judgment interest, to be calculated from the date the Clerk of Court

enters judgment in this action until the date of payment, using the federal rate

established by 28 U.S.C § 1961(a).

E. Attorneys’ Fees and Costs

The FLSA and the NYLL allow for prevailing plaintiffs to recover reasonable

attorneys’ fees and costs. 29 U.S.C. § 216(b); NYLL § 663(4). Plaintiff requests $2,693.75

in attorneys’ fees and $680.00 in costs. (Proposed Order of Default J., ECF No. 16-13, at

1.) Courts “us[e] their experience with the case, as well as their experience with the

practice of law, to assess the reasonableness of each component of a fee award.” Century

21 Real Estate LLC v. Bercosa Corp., 666 F. Supp. 2d 274, 298 (E.D.N.Y. 2009) (quotation

marks and citation omitted).

1. Attorneys’ Fees

The Court has “broad discretion to determine the amount of attorneys’ fees

awarded.” Chen v. Oceanica Chinese Rest., Inc., No. 13-CV-4623 (NGG) (PK), 2023 WL

2815742, at *18 (E.D.N.Y. Feb. 28, 2023), report and recommendation adopted, 2023 WL

2583856 (E.D.N.Y. Mar. 21, 2023). In the Second Circuit, district courts may use the

lodestar to determine a “‘presumptively reasonable fee.’” Millea v. Metro-North R. Co.,

658 F.3d 154, 166 (2d Cir. 2011). Courts calculating the lodestar multiply “the number of

hours reasonably spent by counsel on the matter by a reasonable hourly rate.” Rotthoff v.

N.Y. State Cath. Health Plan, Inc., No. 19-CV-4027 (AMD) (CLP), 2021 WL 1310220, at *3

(E.D.N.Y. Apr. 8, 2021).

In determining a reasonable number of hours, “[t]he relevant issue . . . is not

whether hindsight vindicates an attorney’s time expenditures, but whether, at the time

the work was performed, a reasonable attorney would have engaged in similar time

expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Courts “must make ‘a

conscientious and detailed inquiry into the validity of the representations that a certain

number of hours were usefully and reasonably expended.’” Hernandez v. Quality

Blacktop Servs., Inc., No. 18-CV-4862 (RJD) (RML), 2021 WL 1413246, at *11 (E.D.N.Y.

Mar. 10, 2021) (quoting Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC),

2012 WL 1669341, at *13 (S.D.N.Y. May 14, 2012)).

Courts in this circuit determine a reasonable hourly rate “us[ing] the prevailing

hourly rates in the district in which they sit.” Cortes v. Juquila Mexican Cuisine Corp., No.

17-CV-3942 (RER), 2021 WL 1193144, at *2 (E.D.N.Y. Mar. 29, 2021). In FLSA cases,

recent decisions within the Eastern District of New York approved hourly rates of $300

to $450 for partners, $200 to $325 for senior associates, $100 to $200 for junior or more

inexperienced associates, and $70 to $100 for paralegals. See, e.g., Jimenez v. Green Olive

Inc., ___ F. Supp. 3d ___, No. 23-CV-8805 (AMD) (JAM), 2024 WL 3763467, at *23

(E.D.N.Y. Aug. 13, 2024); Gao v. Jian Song Shi, No. 18-CV-2708 (ARR) (LB), 2021 WL

1949275, at *17 (E.D.N.Y. Apr. 30, 2021) (collecting cases), report and recommendation

adopted sub nom. Bin Gao v. ABC Corp., 2021 WL 1946322 (E.D.N.Y. May 15, 2021).

Jesse Barton, Plaintiff’s counsel, submitted billing records reflecting a total of

13.31 hours worked by himself, his co-counsel Ms. Catalina Sojo, and the firm’s

paralegals on this matter. (Att’ys Fees, ECF No. 16-12.) Based on the submitted records,

the Court finds that the total number of hours and the requested rates are reasonable.

Specifically, Mr. Barton requests an hourly rate of $375 for his work, $350 for Ms. Sojo,

and $125 for support staff. (Decl. in Supp. of Mot. for Default J., ECF No. 16, ¶ 65.) Mr.

Barton is of counsel at CSM Legal and graduated from law school in 2012. (Id.) Ms. Sojo

is the Managing Member of CSM Legal and received her L.L.M. in 2019. (Id.) The billing

records submitted indicate that Mr. Barton billed 2.5 hours on this matter, Ms. Sojo

billed 1.8 hours, and support staff billed 9.01 hours. (Att’ys Fees, ECF No. 16-12.) The

rates billed by Mr. Barton and Ms. Sojo fall within the regularly approved hourly rates

for partners on FLSA cases and the number of hours worked is entirely reasonable

given the procedural history of this case. Although the requested rate of $125 for

paralegal services is somewhat higher than the paralegal rate typically awarded in this

district, it is not inconsistent with prior awards. See Guinea v. Garrido Food Corp., No. 19-

CV-5860 (BMC), 2020 WL 136643, at *2 (E.D.N.Y. Jan. 13, 2020) (approving paralegal

hourly rates of $125 to $175 but noting the top-billed paralegal had specialized skills

and advanced training). Overall, the Court concludes that the hourly rates and fee

requested in this case are reasonable in light of the amount of work performed and the

outcome achieved. See Muratov v. Mama Shnitzel, Inc., No. 22-CV-3785 (HG) (TAM), 2023

WL 5152511, at *12 (E.D.N.Y. July 21, 2023), report and recommendation adopted, Aug. 29,

2023 ECF Order Adopting R. & R. (approving a fee of $4,712.50 in an FLSA default

case); Fermin, 93 F. Supp. 3d at 52 (approving a fee of $7,700.00 in an FLSA default case).

For all these reasons, the Court concludes that awarding counsel $2,693.75 in fees

is reasonable and recommends that Plaintiff’s fee request be granted.

2. Costs

Plaintiff seeks $680.00 in costs. (Decl. in Supp. of Mot. for Default J., ECF No. 16

¶ 64; Att’ys Fees, ECF No. 16-12, at ECF p. 2.) “Ordinarily, plaintiffs may recover costs

relating to filing fees, process servers, postage, and photocopying.” Pichardo v. El Mismo

Rincon Latino Corp., No. 17-CV-7439 (FB) (SJB), 2018 WL 4101844, at *11 (E.D.N.Y. Aug.

7, 2018) (quotation marks and modification omitted), report and recommendation adopted,

2018 WL 4100480 (E.D.N.Y. Aug. 28, 2018). Plaintiff seeks to recover $405.00 for the

filing fee and $275.00 for service costs. (Att’ys Fees, ECF No. 16-12, at ECF p. 2.) The

Court may take judicial notice of the $405.00 filing fee. However, Plaintiff has not

submitted supporting documentation for the entirety of the remaining $275.00 in

service costs. Plaintiff has submitted sufficient documentation for a $40.00 fee paid to

the Secretary of State for service of process (see Aff. of Service, ECF No. 16-2), but has

not submitted the requisite documentary evidence for the other service costs. Without

supporting documentation, such as billing records or receipts, denial of the remaining

costs is warranted. Mulligan Funding LLC v. Tommy Interior Contracting Group, No. 23-

CV-8808 (RER) (JAM), 2024 WL 3513456, at *11 (E.D.N.Y. July 23, 2024). Therefore, the

Court recommends that Plaintiff be awarded costs of $445.00 based on the filing fee and

service costs paid to the Secretary of State.

CONCLUSION

For the foregoing reasons, the Court recommends finding that entry of default is

warranted and that, under the default judgment standard, Plaintiff has established that

Defendants violated the FLSA and the NYLL with respect to Plaintiff’s overtime claims.

The Court further respectfully recommends dismissal of Plaintiff’s NYLL wage notice

and statement claims without prejudice for lack of Article III standing.

Accordingly, the Court respectfully recommends that Plaintiff’s motion be

granted in part and that a default judgment be entered against Defendants Mesa Azteca

Corp. and Joaquin F. Velazquez. With respect to damages, the Court recommends that

Plaintiff be awarded a sum of $12,692.00, comprised of $6,346.00 in compensatory

damages and $6,346.00 in liquidated damages. The Court further recommends that

Plaintiff be awarded $3,138.75, comprised of $2,693.75 in attorneys’ fees and $445.00 in

costs. In addition, the Court recommends (1) an award of prejudgment interest on

Plaintiff’s unpaid overtime wages at a per diem interest rate of $1.56 from September

18, 2022, to the date final judgment is entered; and (2) an award of post-judgment

interest, to be calculated from the date the Clerk of Court enters judgment in this action

until the date of payment, using the federal rate established by 28 U.S.C § 1961(a).

Finally, the Court recommends that Plaintiff be awarded a fifteen-percent increase in

damages under the NYLL, not including post-judgment interest, for any amounts that

are not paid within ninety days of judgment or the expiration of time to appeal.11

* * * * *

This report and recommendation will be filed electronically and a copy will be

sent by mail to Defendants Mesa Azteca Corp. and Joaquin F. Velazquez. As a courtesy,

the Court also respectfully directs Plaintiff to provide a copy of this report and

recommendation to Defendants forthwith and to file proof of same on ECF by

December 12, 2024. Objections to this report and recommendation must be filed, with a

courtesy copy sent to the Honorable Hector Gonzalez at 225 Cadman Plaza East,

Brooklyn, New York 11201, within fourteen (14) days of filing. Failure to file objections

within the specified time waives the right to appeal both before the district court and

appellate courts. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P.

6(a) (providing the method for computing time). Failure to file objections within the

specified time waives the right to appeal the District Court’s order. See, e.g., Caidor v.

11 The New York Labor Law provides that “[a]ny judgment or court order awarding

remedies under this section shall provide that if any amounts remain unpaid upon the

expiration of ninety days following issuance of judgment, or ninety days after expiration of the

time to appeal and no appeal is then pending, whichever is later, the total amount of judgment

shall automatically increase by fifteen percent.” NYLL § 198(4); see also Rodriguez v. Solares Corp.,

No. 16-CV-3922 (CBA) (SMG), 2019 WL 7252949, at *12 (E.D.N.Y. Aug. 14, 2018), report and

recommendation adopted, 2019 WL 486883 (E.D.N.Y. Feb. 7, 2019). The increase applies only to

damages awarded under state law. See Rodriguez, 2018 WL 7252949, at *12 (recommending that

the fifteen-percent increase provided for under NYLL § 198(4) be limited to amounts “awarded

exclusively under the NYLL”); De la Cruz Casarrubias v. Surf Ave Wine & Liquor Inc., No. 20-CV-

3003 (AMD) (RLM), 2021 WL 2227977, at *13 (E.D.N.Y. May 11, 2021) (citing Rodriguez and

limiting conditional fifteen percent increase to damages awarded under the NYLL), report and

recommendation adopted, 2021 WL 2223275 (E.D.N.Y. June 2, 2021). Accordingly, Plaintiff’s

damages under the NYLL should be increased by fifteen percent for any amounts unpaid after

ninety days following the issuance of judgment or the expiration of the time to appeal. See

Gonzalez-Diaz v. Daddyo’s Mgmt. Grp. Inc., No. 16-CV-1907 (ENV) (RML), 2017 WL 7625319, at *7

(E.D.N.Y. Nov. 7, 2017) (finding that the total amount of the judgment would automatically

increase if any amount remained unpaid upon the expiration of ninety days following issuance

of the judgment).

Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object

timely to a... report [and recommendation] operates as a waiver of any further judicial

review of the magistrate[ judge’s] decision” (quotation marks omitted)).

SO ORDERED.

Dated: Brooklyn, New York

December 5, 2024 yz J. Wer fl

TARYN x cERKL

UNITED STATES MAGISTRATE JUDGE

33