Villarrubia v. La Hoguera Paisa Rest. & Bakery Corp.

SEBASTIAN VILLARRUBIA, KEIBER APARCEDO,and MAURICIA MAYOR GOMEZ, Plaintiffs, v. LA HOGUERA PAISA RESTAURANT & BAKERY CORP.,LA HACIENDA DON JULIO CORP., JOSE RESTREPO,and NAHUM RODRIGUEZ, jointly and severally, Defendants.

18-CV-4929 (AMD) (PK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 13, 2020

REPORT AND RECOMMENDATION

Peggy Kuo, United States Magistrate Judge:

Plaintiffs Sebastian Villarrubia, Keiber Aparcedo, and Mauricia Mayor Gomez (collectively, "Plaintiffs") brought this action against defendants La Hoguera Paisa Restaurant & Bakery Corp., La Hacienda Don Julio Corp., Jose Restrepo, and Nahum Rodriguez alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq.; the New York Labor Law ("NYLL") §§ 198 and 663; Title VII of the Civil Rights Act of 1964 ("Title VII"); the New York City Human Rights Law ("NYCHRL") N.Y. Admin. Code. §§8-107(a); and the New York Human Rights Law ("NYHRL") N.Y. Executive Law § 296(1)(a). (See Compl., Dkt. 1.)

Before the Court on referral from the Honorable Ann Donnelly is Plaintiffs' Motion for Default Judgment (the "Motion") against defendant La Hoguera Paisa Restaurant & Bakery Corp. ("La Hoguera Paisa" or "Defendant").¹ (Notice of Motion for Default Judgment, Dkt. 16.) For thereasons stated herein, the undersigned respectfully recommends that the Motion be granted in part and denied in part.

FACTUAL BACKGROUND

La Hoguera Paisa, a domestic business corporation organized under the laws of the State of New York, owned and operated a Colombian restaurant at 40-12 Queens Boulevard in Sunnyside, New York. (Compl. ¶ 13.) La Hoguera Paisa was owned by Jose Restrepo ("Restrepo") and Nahum Rodriguez ("Rodriguez") until February 9, 2018, at which point an individual named "Julio" purchased all "assets, shares, and business" of La Hoguera Paisa. (Id. ¶¶ 12, 22.) Julio operated the restaurant together with Restrepo and Rodriguez for approximately one week before taking complete control on or around February 20, 2018. (Id. ¶ 75.) Throughout this transition, the restaurant continued operating without interruption, utilizing the same décor, menus, food items, equipment, and female personnel. (Id. ¶ 77.)

Plaintiffs worked at the restaurant. Plaintiff Sebastian Villarrubia ("Villarrubia") worked as a waiter and a grill man from August 2016 until February 2018. (Id. ¶ 40.) During that time, he worked five days a week for approximately 42-45 hours per week. (Id. ¶¶ 41-42.) Approximately 40% of those hours were spent working as a waiter, a role in which he was paid $7.50 per hour in 2016 and $8.00 per hour from January 2017 until he was terminated. (Id. ¶¶ 42-43.) When working as a grill man, he was paid $9.00 per hour in 2016 and $10.50 per hour from January 2017 until he was terminated. (Id. ¶ 43.)

Plaintiff Keiber Aparcedo ("Aparcedo") worked as a waiter and a grill man from October 2016 until February 2018. (Id. ¶ 46.) During that time, he worked four days a week for approximately 42-44 hours per week. (Id. ¶¶ 47, 49.) Approximately 50% of those hours were spent working as a waiter, a role in which he was paid $7.50 per hour in 2016 and $8.00 per hour fromJanuary 2017 until he was terminated. (Id. ¶¶ 49-50.) When working as a grill man, he was paid $9.00 per hour in 2016 and $10.50 per hour from January 2017 until he was terminated. (Id. ¶ 50.)

Plaintiff Mauricia Mayor Gomez ("Gomez") worked as a waiter from March 2017 until February 2018. (Id. ¶ 52.) During that time, he worked five days a week for approximately 43-46 hours per week and was paid $8.00 per hour. (Id. ¶¶ 52-55.)

Plaintiffs were paid exclusively in cash throughout their employment and were never provided with either wage statements or notices. (Id. ¶¶ 64-66.) They did not receive time-and-a-half for any overtime hours worked. (Id. ¶ 116.)

On February 20, 2018, Plaintiffs were informed that they were terminated. Villarrubia learned he was terminated through a phone call from a co-worker. (Id. ¶ 44.) The co-worker specifically mentioned that the new owner did not want male waiters at the restaurant. (Id.) Villarrubia went to the restaurant on February 22, 2018 and spoke directly with Julio, who confirmed that he did not want any male waiters working at the restaurant. (Id. ¶ 45.) Aparcedo learned he was terminated through a text message he received from a co-worker, informing him that the new owner "only wants women." (Id. ¶ 51.) Gomez was terminated in person, by Julio, who reiterated his desire to have only females as his waitstaff. (Id. ¶ 56.) All female employees at La Hoguera Paisa retained their positions. (Id. ¶ 76.) Plaintiffs were replaced with women. (Id. ¶ 70.)

Julio formed La Hacienda Don Julio Corp. on March 13, 2018. (Id. ¶¶ 12, 78.) La Hacienda Don Julio Corp. does business as La Hacienda Don Julio, a restaurant offering Columbian food at the same address as La Hoguera Paisa. (Id. ¶ 79.)

Plaintiffs filed complaints with the EEOC on March 21, 2018 and received their Right to Sue letters on June 4, 2018. (Id. ¶ 4.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on August 29, 2018. (Dkt. 1.) Defendant was served with the Summons and Complaint via the New York Secretary of State on September 27, 2018. (Affidavit of Service, Dkt. 10.) When Defendant failed to respond to the Complaint, Plaintiffs requested a Certificate of Default, which was entered by the Clerk of Court on January 10, 2019. (Dkts. 12, 13.) Plaintiffs filed the Motion on March 15, 2019. (Dkt. 16.)

On January 10, 2020, Plaintiffs were granted leave to supplement the Motion with updated calculations for their wage and hour claims and damages in their discrimination claims. (See Minute Order dated 1/20/2020.) Plaintiffs' supplemental filing ("Supp. Filing") was made on February 10, 2020, containing updated wage and hour calculations and attorney timesheets, but no information on damages related to discrimination. (Dkt. 26.)

DISCUSSION

I. Default Judgment Standard

Federal Rule of Civil Procedure 55 governs the procedure that applies in cases where there is a default during the course of litigation. See Fed. R. Civ. P. 55; see also City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011). It provides "a 'two-step process' for the entry of judgment against a party who fails to defend." Mickalis, 645 F.3d at 128; see also GuideOne Specialty Mut. Ins. Co. v. Rock Cmty. Church, Inc., 696 F. Supp. 2d 203, 208 (E.D.N.Y. 2010). First, when a defendant "has failed to plead or otherwise defend," the Clerk of Court enters the defendant's default. Fed. R. Civ. P. 55(a). Then, the plaintiff must "apply to the court for a default judgment." Fed. R. Civ. P. 55(b)(2).

"A default constitutes an admission of all well-pleaded factual allegations in the complaint and the allegations as they pertain to liability are deemed true." United States v. Myers, 236 F. Supp. 3d 702, 706 (E.D.N.Y. 2017) (citations omitted). However, "just because a party is in default, theplaintiff is not entitled to a default judgment as a matter of right." GuideOne, 696 F. Supp. 2d at 208. The Court must ensure that (1) jurisdictional requirements are satisfied, see Mickalis, 645 F.3d at 125-27, 133; (2) plaintiffs took all the required procedural steps in moving for default judgment, Local Civ. R. 55.2(c); and (3) plaintiffs' allegations, when accepted as true, establish liability as a matter of law. Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). The court exercises significant discretion in deciding whether to grant a default judgment, including whether the grounds for default are clearly established and the amount of damages. See GuideOne, 696 F. Supp. 2d at 208; see also Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999); Klideris v. Trattoria El Greco, No. 10-CV-4288 (JBW) (CLP), 2011 WL 7114003, at *2 (E.D.N.Y. Sept. 23, 2011), R&R adopted, 2012 WL 273078 (E.D.N.Y. Jan. 30, 2012); Mickalis, 645 F.3d at 129.

II. Jurisdictional and Procedural Requirements

a. Jurisdiction

The court from which default judgment is sought must assure itself that it has subject matter jurisdiction over the action. See Mickalis, 645 F.3d at 125-26; see also Jennifer Matthew Nursing & Rehab. Ctr. v. U.S. Dep't of Health & Human Servs., 607 F.3d 951, 955 (2d Cir. 2010). The court may also inquire as to whether it has personal jurisdiction. See Mickalis, 645 F.3d at 133; see Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010).

Subject matter jurisdiction is found pursuant to the FLSA, 29 U.S.C. §§ 201 et seq., and Title VII of the Civil Rights Act of 1964. See 28 U.S.C. § 1331. Additionally, this Court has supplemental jurisdiction over the related NYLL, NYCHRL, and NYHRL claims. See 28 U.S.C. § 1367.

This Court has personal jurisdiction over La Hoguera Paisa because it is a New York corporation with its principal place of business within the Eastern District of New York. (Compl. ¶ 5; Ex. G to Affirmation of Ariadne Anna Panagopoulou Alexandrou, NYS Department of State Division of Corporations Entity Information, Dkt. 18-7.) See Daimler AG v. Bauman, 571 U.S. 117,137 (2014) ("With respect to a corporation, the place of incorporation and principal place of business are 'paradig[m] . . . bases for general jurisdiction.'") (alteration in original).

b. Service

The Summons and Complaint must be properly served on the defaulting party. See Advanced Capital Commercial Grp., Inc. v. Suarez, No. 09-CV-5558 (DRH) (GRB), 2013 WL 5329254, at *2 (E.D.N.Y. Sept. 20, 2013). Plaintiffs have made a prima facie showing of proper service of the Summons and Complaint on Defendant by filing a process server's Affidavit of Service Through the Secretary of State pursuant to § 306 of the New York Business Corporation Law. (Dkt. 5.) See Old Republic Ins. Co. v. Pac. Fin. Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002).

c. Procedural Requirements

Plaintiffs have demonstrated that they have taken the...