Leon v. Zita Chen, Individually & DNC Doors & Cabinets Inc.

JOSE ROLANDO LEON, Individually and on behalf of others similarly situated, Plaintiff, v. ZITA CHEN, Individually and DNC DOORS & CABINETS INC. Defendants.

16-CV-480(KAM)(PK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 29, 2017

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

Plaintiff Jose Rolando Leon brought this action 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, FLSA liquidated damages, NYLL liquidated damages, damages for failure to provide written notice of rate of pay, attorneys' fees and costs, and post-judgment interest. 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 pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. Plaintiff is awarded $33,320.00 in damages and $4,728.50 in attorneys' fees and $504.00 in costs, plus post judgment interest as prescribed in 28 U.S.C. § 1961.¹

BACKGROUND

Plaintiff Jose Rolando Leon ("plaintiff") brought this action against Zita Chen ("Chen") and against DNC Doors & Cabinets Inc. ("DNC") under the Fair Labor Standards Act ("FLSA"), 29 U.S.C § 201 et seq., and the New York State Labor Law ("NYLL") § 190 et seq., by filing a complaint on January 29, 2016. (Complaint ("Compl."), ECF No. 1.)

Plaintiff alleges that he worked for defendant DNC from approximately December 2013 to December 16, 2015, as a factory worker. (Compl., ECF No. 1 at ¶ 3; Declaration of Jose Rolando Leon ("Leon Decl."), ECF No. 14-3 at ¶ 3.) DNC is a New York Corporation located in Flushing, New York with annual gross sales in excess of $500,000.00. (Compl., ECF No. 1 at ¶¶ 6-7.) At all relevant times, DNC was an employer engaged in commerce and/or in the production of goods. (Id. at ¶ 8.) Plaintiff also alleges that Chen is an owner and operator of DNC, and therefore, anemployer. (Id. at ¶ 10.) Chen is responsible for the day-to-day operations of DNC, including hiring, terminating, supervising, setting schedules, and pay rates for employees. (Id.)

Plaintiff alleges that Chen hired him to work for DNC, and fired him from DNC. (Leon Decl., ECF 14-3 at ¶¶ 7-8.) During 2013 and 2014, plaintiff's primary job responsibilities were delivering and installing DNC's products to its customers in New York, New Jersey and Connecticut. (Compl., ECF No. 1 at ¶¶ 21-22.) During 2015, plaintiff primarily worked in the factory, where he sanded marble, and prepared marble for installation. (Id. at ¶ 23.) Plaintiff frequently worked six days per week for defendants, between the hours of 8 a.m. to 6 p.m. (Leon Decl., ECF No. 14-3 at ¶¶ 10-11.) Plaintiff alleges that he was not required to sign in or out, when he arrived or left work. Nor was he otherwise required to record the time he spent at work. (Compl., ECF No. 1 at ¶ 26.) Plaintiff was paid $120.00 per day in cash, regardless of the hours he worked. (Id. at ¶ 29.) Plaintiff alleges that Chen terminated his employment with DNC, and that the last day he was employed by defendants was December 16, 2015. (Leon Decl., ECF No. 14-3 at ¶¶ 3, 7.) Plaintiff further alleges that defendants did not pay him for his last two weeks of work, from December 2, 2015 to December 16, 2015. (Compl., ECF No. 1at ¶ 30.)

Plaintiff filed the Complaint on January 29, 2016. (Compl., ECF No. 1.) Plaintiff alleges that: 1) Defendants failed to pay him minimum wage pursuant to FLSA and NYLL; 2) Defendants failed to pay him overtime pay pursuant to FLSA and NYLL; 3) Defendants failed to pay him spread-of-hours pay pursuant to New York State labor regulations, N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 12, § 142-2.4; and 4) Defendants failed to provide him with a written notice of rate of pay pursuant to NYLL. (Compl., ECF No. 1 at ¶¶ 36-62.)

On February 8, 2016, the summons and complaint were served on Suki Zhang, who self-identified as the co-worker of Chen, and as the general agent of DNC. (Ex. C, ECF No. 14-2 at 22-23.) Neither Chen nor DNC appeared or has otherwise defended this action. (Ex. D, ECF No. 14-2 at 26.) On April 15, 2016, the Clerk of the Court filed the Clerk's Certificate of Default against Chen and DNC pursuant to Fed. R. Civ. P. 55(a). (Id.; ECF No. 13.)

On May 10, 2016, plaintiff filed this motion for entry of a default judgment against Chen and DNC pursuant to Fed. R. Civ. P. 55(b)(2). (ECF No. 14.) Plaintiff seeks the following relief: 1) unpaid wage and overtime pay in the amount of $17,670; 2) FLSA liquidated damages in the amount of $17,670; 3) NYLLliquidated damages in the amount of $17,670; and 4) damages in the amount of $5,000 for failure to provide written notice of rate of pay. (Ex. A, ECF No. 14-3 at 6.) Additionally, plaintiff seeks $5,063.05 in attorneys' fees at an hourly rate of $400.00 (Ex. E, ECF No. 14-2 at 29), $400.00 in filing fees (Ex. D, ECF No. 14-2 at 25), and $104 in costs. (Ex. E, ECF No. 14-2 at 30.) Plaintiff also seeks post-judgment interest as provided by law. (Memo. of Law, ECF No. 14-1 at 6.)

DISCUSSION

I. Legal Standard

To obtain a default judgment under Rule 55 of the Federal Rules of Civil Procedure, a movant must complete a two-step process. Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 123 (E.D.N.Y. 2011); La Barbera v. Fed. Metal & Glass Corp., 666 F. Supp. 2d 341, 346-47 (E.D.N.Y. 2009). First, the Clerk of the Court must enter default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise." Fed. R. Civ. P. 55(a); Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Second, after the Clerk of the Court has entered default pursuant to Rule 55(a), the movant "may then make an application for entry of default judgmentpursuant to Fed. R. Civ. P. 55(b)." Rodriguez, 784 F. Supp. 2d at 123. If the defendant fails to appear, or move to set aside the default under Rule 55(c), the court may enter a default judgment. Fed. R. Civ. P. 55(b)(2).

On a motion for entry of a default judgment, the court "deems all the well-pleaded allegations in the pleadings to be admitted." Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); see also Finkel v. Universal Elec. Corp., 970 F. Supp. 2d 108, 119 (E.D.N.Y. 2013). The Second Circuit has an "oft-stated preference for resolving disputes on the merits," making default judgments "generally disfavored." Enron, 10 F.3d at 95-96. "Accordingly, just because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right." Mktg. Devs., Ltd. v. Genesis Imp. & Exp., Inc., No. 08-CV-3168 (CBA)(CLP), 2009 WL 4929419, at *2 (E.D.N.Y. Dec. 21, 2009) (citing Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)). Regardless of the assumption of truth of the complaint when a party is in default, the court has a "responsibility to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief." Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010)(citing Au Bon Pain Corp. v.Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).

An employee seeking to recover unpaid wages "has the burden of proving that he performed work for which he was not properly compensated." Jiao v. Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). An employer is required by federal and state law to maintain "records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him." 29 U.S.C. § 211(c); see also 12 NYCRR § 142-2.6(a) ("[e]very employer shall establish, maintain and preserve for not less than six years, weekly payroll records"). In the case of a default judgment, the "defaulting defendant deprive[s] the plaintiff of the necessary employee records required by the FLSA, thus hampering [the] plaintiff's ability to prove his damages" and, consequently, "a plaintiff may meet his burden of proof by relying on recollection alone to establish that he performed work for which he was improperly compensated." Kernes v. Global Structures, LLC, No. 15-CV-659 (CM) (DF), 2016 WL 880199, at *6 (S.D.N.Y. Mar. 1, 2016) (internal citations and quotation marks omitted) (alteration in original); Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195 (LLS) (JLC), 2012 WL 1669341, at *3 (S.D.N.Y. May 14, 2012), R&R adoptedby, Order dated Aug. 9, 2012 (Dkt. No. 20).

"[A] district court retains discretion [on a motion for entry of a default] . . . to require proof of necessary facts [,] and need not agree that the alleged facts constitute a valid cause of action." Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). If the unchallenged facts establish defendant's liability, the court then determines the amount of damages due. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (citing Transatlantic, 109 F.3d at 111) (citation omitted). An inquest on damages by affidavit, without an in-person hearing, may be conducted as long as the court can ensure "a basis for the damages specified in the default judgment." Transatlantic, 109 F.3d at 111; Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234(JGK)(JLC), 2016 WL 4704917, at *5 (S.D.N.Y. Sept. 8, 2016), R&R adopted sub nom., 2016 WL 6879258 (S.D.N.Y. Nov. 21, 2016) ("An affidavit that sets forth the number of hours worked and pay received is sufficient" to carry the employee's burden of proving that he was not compensated for the work performed.) (citation omitted).

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