Victor v. Sam's Deli Grocery Corp.

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PASTOR NESTOR VICTOR, individually and on behalf of all others similarly situated, Plaintiff, v. SAM'S DELI GROCERY CORP. D/B/A SAM'S DELI, SAMEER ALI, WALID MOHAMED SEIDI, AND LOU DOE, Defendants.

Civil Action No. 19 Civ. 2965 (SLC)

United States District Court, S.D. New York

August 25, 2022

OPINION & ORDER

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

On March 3, 2021, Plaintiff Pastor Nestor Victor (“Nestor”) filed this putative collective action under the Fair Labor Standards Act (the “FLSA”) 29 U.S.C. § 201 et seq., New York Labor Law (“NYLL”) §§ 190 et seq. and 650 et seq., and New York's Wage Theft Prevention Act, NYLL § 195 et seq. (“WTPA”), seeking payment of unpaid wages and related relief against Defendants Sam's Deli Grocery Corp. (d/b/a Sam's Deli) (the “Deli”), Sameer Ali (“Ali”), Walid Mohamed Seidi (“Seidi”), and Lou Doe (“Doe”), the Deli, Ali, Seidi, and Doe, “Defendants”). (ECF No. 1 (the “Complaint”)). Nestor alleges that during his employment at the Deli, Defendants failed to pay him proper minimum, overtime, and spread-of-hours wages, and failed to keep adequate records of his hours worked and provide him with required wage notices and statements. (Id. ¶¶ 5-8, 45-49, 64-89). The Deli and Seidi (“Defaulting Defendants”) appeared and defended against Nestor's claims,^[1] but after their counsel withdrew and they failed to respond to the Court's orders, the Clerk of Court entered certificates of default against them, and Nestor filed a motion for default judgment (the “Motion”), accompanied by his counsel's declaration and exhibits (the “Sojo Declaration”), his declaration (the “Nestor Declaration”), and a damages computation (“Nestor's Computation”), with the Motion, Sojo Declaration, and Nestor Declaration, the “Damages Submission”)). (ECF Nos. 34-35; 47; 86; 90; 100-03; 103-1 - 103-7).

For the following reasons, Nestor's Motion is GRANTED IN PART and DENIED IN PART, and the Court awards him the following:

(1) $169,258.54 in damages against Defaulting Defendants, comprised of: (i) $79,629.27 in unpaid overtime wages; (ii) $79,629.27 in liquidated damages; and (iii) $10,000.00 in statutory damages;

(2) post-judgment interest pursuant to 28 U.S.C. § 1961;

(3) attorneys' fees in the amount of $5,137.50;

(4) costs in the amount of $400; and

(5) pursuant to NYLL § 198(4), if any amounts remain unpaid on the expiration of 90 days following issuance of judgment, or 90 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 15%.

II. BACKGROUND

A. Factual Background

Unless otherwise indicated, the Court draws the facts from the Complaint and the Damages Submission (see § II.B infra). (ECF Nos. 1; 102-03; 103-1 - 103-7). Given Defaulting Defendants' default, the Court accepts as true all well-pleaded factual allegations in the Complaint, except as to damages. See City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004)); Whitehead v. Mix Unit, LLC, No. 17 Civ. 9476 (VSB) (JLC), 2019 WL 384446, at *1 (S.D.N.Y. Jan. 31, 2019).

Defendants operated the Deli, located on 7 East 170th Street in the Bronx. (ECF Nos. 1 ¶¶ 2-3, 16-20; 103-4 ¶ 3). Defendants had the power to hire and fire Nestor, control his terms and conditions of employment, and determine the rate and method of his compensation. (ECF No. 1 ¶¶ 24-28). Defendants were engaged in interstate commerce; for example, “numerous items that were used in the [D]eli on a daily basis [were] goods produced outside of the State of New York.” (Id. ¶ 30; see ECF No. 103-4 ¶ 7).

From July 2011 until October 2014, and from December 2017 until February 2019, Nestor worked at the Deli as a sandwich maker, but also had other responsibilities including food preparation and taking customers' orders. (ECF Nos. 1 ¶ 1, 4, 14, 33-44; 103-4 ¶¶ 4-5). During his employment, Nestor regularly worked more than 40 hours per week. (ECF Nos. 1 ¶ 37; 1034 ¶ 9). From April 2013 through October 2014, and from December 2017 through February 2018, Nestor worked from 7:00 a.m. until 5:00 p.m., six days per week, totaling 60 hours per week.

(ECF Nos. 1 ¶ 38; 103-4 ¶ 10). From March 2018 through February 2019, Nestor worked from 5:00 p.m. until 3:00 a.m. three days per week, and from 5:00 p.m. until 6:00 a.m. three days per week, totaling 69 hours per week. (ECF Nos. 1 ¶ 39; 103-4 ¶ 11).

Defendants paid Nestor his wages in cash in the following amounts: from April 2013 until July 2014, $500 per week; from August 2014 until October 2014, $600 per week; from December 2017 until February 2018, $700 per week; and from March 2018 until February 2019, $750 per week. (ECF Nos. 1 ¶¶ 40-44, 54; 103-4 ¶¶ 12-16). Defendants did not give Nestor meal breaks and neither required him to keep track of his time nor used any timekeeping device to record his hours. (ECF No. 1 ¶¶ 45-46).

Defendants did not provide Nestor with accurate wage statements. (ECF Nos. 1 ¶¶ 48, 59; 103-4 ¶ 18). Defendants did not provide Nestor any notice, posted or otherwise, in English or Spanish (his primary language) regarding overtime and wages under the FLSA and NYLL. (ECF Nos. 1 ¶¶ 47, 49, 55, 60; 103-4 ¶ 19).

B. Procedural Background

On April 3, 2019, Nestor filed the Complaint asserting claims under the FLSA, NYLL, and WTPA. (ECF No. 1 ¶¶ 64-89). On June 17, 2019, Nestor served the Summons and Complaint on the Deli through its authorized agent, the New York Secretary of State, and on Ali, Seidi, and Doe through service on Ali Abdul Seidi, their co-worker, at the Deli. (ECF Nos. 12; 13; 15; 16). After Defendants failed to appear, the Clerk of the Court entered certificates of default against Defendants. (ECF Nos. 23-26). Nestor moved by order to show cause for entry of default judgment. (ECF Nos. 27-28). On August 1, 2019, the Honorable Valerie E. Caproni issued an order directing Defendants to show cause why a default judgment should not be entered against them. (ECF No. 29 (the “OTSC”)). After Nestor served the OTSC on Defendants, the Deli and Seidi appeared through counsel, Harold H. Weisberg (“Weisberg”). (ECF Nos. 30-36). After several extensions and adjournments, on January 31, 2020, Judge Caproni entered a case management plan setting a fact discovery deadline of May 5, 2020. (ECF No. 45). On February 13, 2020, the Deli and Seidi filed their Answer. (ECF No. 47). On February 14, 2020, Nestor voluntarily dismissed his claims against Ali and Doe. (ECF Nos. 50-51).

After Defaulting Defendants failed to respond to Nestor's discovery requests, Judge Caproni granted Nestor's request for an extension of the fact discovery deadline to May 26, 2020, and warned Defaulting Defendants that she would consider sanctions if they could not “show good cause for failing to respond to discovery requests served three months ago.” (ECF No. 53). After Judge Caproni referred the matter for settlement, the undersigned scheduled, and rescheduled (three times) a settlement conference. (ECF Nos. 54-59, 63). On July 17, 2020, the Court directed Defaulting Defendants to either retain new counsel, because the Deli could not appear pro se, or for Seidi to notify the Court by August 17, 2020 if he intended to proceed pro se. (ECF No. 59). After Seidi failed to do so, the Court directed the parties to file a joint letter by August 31, 2022, advising the Court whether Weisberg planned to continue representing Defaulting Defendants or planned to withdraw, and whether new counsel would appear. (ECF No. 60). On August 31, 2020, Enrique A. Leal (“Leal”) appeared on behalf of Defaulting Defendants. (ECF No. 61). On September 30, 2020, the Court held a settlement conference at which Defaulting Defendants' representative, David Nasser, and counsel appeared, and during which the parties reached an agreement in principle. (ECF min. entry Sept. 30, 2020).

On October 2, 2020, Judge Caproni notified the parties that they could not dismiss the action with prejudice unless the Court or Department of Labor (“DOL”) approved any settlement, and directed the parties to file a letter requesting court approval or providing proof of DOL approval. (ECF No. 68). Judge Caproni extended the parties' deadline to submit their request for settlement approval. (ECF Nos. 70). On November 13, 2020, the parties consented to Magistrate Judge jurisdiction for all purposes. (ECF No. 75). On November 24, 2020, the Court held a telephone status conference with the parties, at which Defaulting Defendants' counsel appeared. (ECF min. entry Nov. 24, 2020).

Nine months passed with no substantive action by the parties, and on August 9, 2021, the Court directed the parties to file a status report. (ECF No. 81). On August 13, 2021, the parties reported that Leal intended to file a motion to withdraw as counsel for Defaulting Defendants, and the Court set a deadline of September 2, 2021 for Leal's motion. (ECF Nos. 83-84). On September 2, 2021, Leal filed a letter-motion in which he and Weisberg, who became ill during the case sought to withdraw from representing Defaulting Defendants, who had not responded to, cooperated with, or paid Leal and Weisberg since at least August 2020. (ECF No. 85). On September 3, 2021, the Court granted the motion to withdraw, reminding the Deli that it could not appear pro se and setting a deadline of October 4, 2021, for the Deli to retain new counsel and for new counsel to enter a notice of appearance. (ECF No. 86 at 2 (the “Sept. 3 Order”)). The Court warned Defaulting Defendants that...