Cooper v. Fire & ICE Trucking, Corp.

MEMORANDUM & ORDER

KIYO A. MATSUMOTO UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF NEW YORK

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-halftimes 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

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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 noncompliance 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...