Pareja v. 184 Food Corp.

Jose Pareja, individually and on behalf of all others similarly situated, Plaintiff, v. 184 Food Corp. et al., Defendants.

No. 1:18-cv-05887 (JPO) (SDA)

United States District Court, S.D. New York

July 22, 2021

ORDER AND REPORT AND RECOMMENDATION

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE J. PAUL OETKEN, UNITED STATES DISTRICT JUDGE:

Before the Court is an application, pursuant to Federal Rule of Civil Procedure 55(b)(2), by Plaintiff Jose Pareja (“Plaintiff” or “Pareja”) for entry of a default judgment against Defendants 184 Food Corp., 231 Food Corp., DG 231 Food Corp., 0113 Food Corp., 640 Pelham Food Corp., G&G Pelham Food Corp., Rafael Montes Deoca Rafael Montes Deoca Jr., Giovanni Marte, Jose Marte, Gustavo Marte and Gregory Gonzalez (collectively “Defendants”). (5/18/2021 Mot. for Default J. ECF No. 262.) For the reasons set forth below, it is hereby Ordered that Plaintiff's motion is GRANTED with respect to Defendants 0113 Food Corp., Giovanni Marte, Jose Marte and Gustavo Marte, which are the Defendants that appeared in this action and consented to my jurisdiction (the “Appearing Defendants”). In addition, I respectfully recommend that Plaintiff's motion be GRANTED with respect to Defendants 184 Food Corp., 231 Food Corp., DG 231 Food Corp., 640 Pelham Food Corp., G&G Pelham Food Corp., Rafael Montes Deoca, Rafael Montes Deoca Jr. and Gregory Gonzalez, which are the Defendants that never appeared in this action (the “Non-Appearing Defendants”).^[1]

BACKGROUND

I. Established Facts As A Result Of Defendants' Default ^[2]

Defendants 184 Food Corp., 231 Food Corp., DG 231 Food Corp., 0113 Food Corp., Rafael Montes Deoca, Rafael Montes Deoca Jr., Giovanni Marte, Jose Marte and Gustavo Marte own, operate or control a supermarket located at 184 West 231st Street Bronx, New York 10463 under the name “Bravo Supermarket, ” which formerly was known as “Pioneer Supermarket.”^[3] (Second Am. Compl. (“SAC”), ECF No. 123, ¶ 2.) Defendants 184 Food Corp., 231 Food Corp., DG 231 Food Corp. and 0113 Food Corp. are New York corporations with their principal places of business at 184 West 231st Street Bronx, New York 10463. (Id. ¶¶ 20-23.) Defendants Rafael Montes Deoca, Rafael Montes Deoca Jr., Giovanni Marte, Jose Marte and Gustavo Marte (together with Defendant Gregory Gonzalez, the “Individual Defendants”) are the owners, officers and/or agents of Defendants 184 Food Corp., 231 Food Corp., DG 231 Food Corp. and 0113 Food Corp. (Id. ¶¶ 26-30.) Defendant Gregory Gonzalez also is an owner, officer and/or agent of Defendant DG 231 Food Corp. (Id. ¶ 31.)

Defendants 640 Pelham Food Corp., DG 231 Food Corp., G&G Pelham Food Corp., Rafael Montes Deoca and Gregory Gonzalez own, operate or control another supermarket located at 640 Pelham Parkway South, Bronx, New York 10462 under the name “C-Town, ” which formerly was known as “Green Apple.” (SAC ¶ 3.) 640 Pelham Food Corp. and G&G Pelham Food Corp. are New York corporations each with their principal place of business at 640 Pelham Parkway South, Bronx, New York 10462. (Id. ¶¶ 24-25.) Defendants Rafael Montes Deoca and Gregory Gonzalez are the owners, officers and/or agents of 640 Pelham Food Corp. and G&G Pelham Food Corp. (Id. ¶¶ 26, 31.)

Pareja was employed by the Defendants at C-Town from approximately February 2015 until February 2017 and then at Bravo Supermarket from approximately February 2017 until on or about June 23, 2018. (SAC ¶ 16.) The Individual Defendants determined the wages and compensation of employees, including Pareja; established schedules; maintained employee records; and had authority to hire and fire employees. (Id. ¶¶ 26-31.)

Pareja commenced working for the Defendants in February 2015 as a fruit stocker and his employment continued in this capacity until on or about June 23, 2018. (SAC ¶¶ 49-50.) Throughout his employment with Defendants, Pareja regularly worked more than forty hours per week. (Id. ¶ 53.) During the period February 2015 through February 2017, Pareja worked at C-Town from approximately 7:00 a.m. until between 5:00 p.m. and 6:00 p.m., four days a week, and from approximately 4:00 a.m. until between 5:00 p.m. and 6:00 p.m., two days per week. (Id. ¶ 54.) During the period from approximately February 2017 until on or about June 23, 2018, Pareja worked as a fruit stocker at Bravo Supermarket from approximately 7:00 a.m. until between 3:00 p.m. and 4:00 p.m. six days a week. (Id. ¶ 55.)

From approximately February 2015 until February 2017, Pareja's wages were fixed at $550 per week. (SAC ¶ 57.) From approximately February 2017 until on or about June 23, 2018, Pareja's wages were fixed at $600 per week. (Id. ¶ 58.) Pareja's pay did not vary, even though he regularly was required to work extra hours. (Id. ¶¶ 59-60.) Defendants did not grant Pareja any breaks or meal periods. (Id. ¶ 61.) Defendants did not use any time keeping system and Pareja was not required to keep track of his time, though to get paid he was required to sign a document falsely stating the hours he worked per week. (Id. ¶¶ 62-63.) Plaintiff was not provided with any notification regarding overtime and wages under the Fair Labor Standards Act (“FLSA”) or the New York Labor Law (“NYLL”) and was not provided an accurate statement of wages under the NYLL. (Id. ¶¶ 64-65.)

II. Procedural History

Plaintiff initiated this action on June 29, 2018. (Compl., ECF No. 1.) He filed an Amended Complaint on October 31, 2018 and a Second Amended Complaint on January 28, 2019. (Am. Compl., ECF No. 46; SAC, ECF No. 123.) Service upon Defendants was completed between February 6 and 16, 2019. (See Affs. of Service, ECF Nos. 148 to 159.) On March 20, 2019, after none of the Defendants entered an appearance or responded to the operative pleading within the allotted time, Plaintiff secured Certificates of Default against each Defendant. (See Certificates of Default, ECF Nos. 177 to 188.) Plaintiff filed a motion for default judgment on March 21, 2019. (3/21/2019 Mot. for Default J., ECF No. 190.) On April 30, 2019, the Appearing Defendants (i.e., 0113 Food Corp., Giovanni Marte, Jose Marte and Gustavo Marte) filed a belated Answer, and on June 11, 2019 filed a motion to set aside the judgment, which District Judge Oetken granted on July 3, 2019. (Answer, ECF No. 195; Mot. to Set Aside J., ECF No. 197; 7/3/2019 Order, ECF No. 198.)

On January 17, 2020, Plaintiff and the Appearing Defendants consented to proceed before the undersigned for all purposes. (See Consent; see also 4/27/2021 Order, ECF No. 258.) Following discovery, the Appearing Defendants reached a settlement in principle. (9/24/2020 Letter, ECF No. 235.) The Court directed Plaintiff and the Appearing Defendants to file a motion for settlement approval and directed Plaintiff to renew any motion for default judgment against the Non-Appearing Defendants (i.e., 184 Food Corp., 231 Food Corp., DG 231 Food Corp., 640 Pelham Food Corp., G&G Pelham Food Corp., Rafael Montes Deoca, Rafael Montes Deoca Jr. and Gregory Gonzalez). (9/29/2020 Order, ECF No. 237; 11/10/2020 Order, ECF No. 238.) Plaintiff filed both motions on November 17, 2020. (See Settlement Agreement, ECF No. 239; 11/17/2020 Mot. for Default J., ECF No. 240.)

On November 18, 2020, the Court preliminarily approved the proposed settlement agreement (which had not yet been signed by the Appearing Defendants) and set a deadline for the parties to file a stipulation of dismissal attaching the fully executed copy of the agreement. (11/18/2020 Order, ECF No. 243.) After the parties failed to file the stipulation, despite one extension of time, the Court ordered counsel for the Appearing Defendants to either file the anticipated stipulation or file a motion to withdraw as counsel. (2/2/2021 Order, ECF No. 248.) On February 9, 2021, counsel for the Appearing Defendants filed a motion to withdraw, which the Court granted on March 1, 2021, after giving the Appearing Defendants an opportunity to respond. (See Mot. to Withdraw, ECF No. 249; 2/10/2021 Order, ECF No. 250; 3/1/2021 Order, ECF No. 252.) The March 1, 2021 Order gave the Appearing Defendants thirty days to secure new counsel and directed Plaintiff to seek a Certificate of Default with respect to Defendant 0113 Food Corp. if it did not appear by counsel within that time. (3/1/2021 Order.) The Court also scheduled a telephone conference and warned Defendants Giovanni Marte, Gustavo Marte and Jose Marte that failure to appear may result in the imposition of sanctions, up to and including entry of a default judgment against them. (Id.)

On April 22, 2021, Plaintiff secured a Certificate of Default against Defendant 0113 Food Corp. (4/22/2021 Certificate of Default, ECF No. 257.) On April 22, 2021, Defendants Giovanni Marte, Gustavo Marte, and Jose Marte failed to appear for the scheduled telephone conference. (See 4/27/2021 Order, ECF No. 259.) On May 17, 2021, Plaintiff withdrew his prior partial motion for default judgment and on May 18, 2021 filed the instant motion for default judgment against all Defendants. (Not., ECF No. 260; 5/18/2021 Mot. for Default J., ECF No. 262.) Plaintiff served copies of his motion papers on May 20, 2021. (See Certificate of Service, ECF No. 267.) Defendants' response was due no later than June 1, 2021 (see 4/27/2021 Order), but as of the date of this Order and Report and Recommendation, no response has been filed.

DISCUSSION

I. Legal Standard For Default Judgment

Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process for obtaining a default judgment against a defendant that fails to appear in an action. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) (“Federal Rule of Civil Procedure 55 is the basic procedure to be...