Tambriz v. Taste & Sabor LLC

• Decision Date: 29 December 2021
• Docket Number: 20-CV-5409 (AJN) (RWL)
• Parties: Leonardo Xum TAMBRIZ, Octaviano Xum Tambriz, Ruben Romero Robles, and on behalf of others similarly situated, Plaintiffs, v. TASTE AND SABOR LLC (d/b/a Taste and Sabor), Jacob R. Selechnik, and Nurkia DeLeon, Defendants.
• Court: U.S. District Court — Southern District of New York

577 F.Supp.3d 314

Leonardo Xum TAMBRIZ, Octaviano Xum Tambriz, Ruben Romero Robles, and on behalf of others similarly situated, Plaintiffs,
v.
TASTE AND SABOR LLC (d/b/a Taste and Sabor), Jacob R. Selechnik, and Nurkia DeLeon, Defendants.

20-CV-5409 (AJN) (RWL)

United States District Court, S.D. New York.

Signed December 29, 2021

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Catalina Sojo, Khalil Patrick Huey, CSM Legal P.C., New York, NY, Michael Antonio Faillace, Michael Faillace & Associates, P.C., New York, NY, Gennadiy Naydenskiy, Naydenskiy Law Firm, LLC, Spotswood, NJ, for Plaintiffs.

Jacob R. Selechnik, Bronx, NY, Pro Se.

REPORT AND RECOMMENDATION TO HON. ALISON J. NATHAN: DEFAULT JUDGMENT

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiffs Leonardo Tambriz ("Leonardo"), Octaviano Xum Tambriz ("Octaviano"), and Ruben Romero Robles ("Robles") (together "Plaintiffs"), bring this action for violations of the Fair Labor Standards Act (the "FLSA") and the New York Labor Law (the "NYLL"). The Clerk of Court has issued certificates of default, and Plaintiffs have moved for default judgment. The matter has been referred to me for report and recommendation. For the reasons set forth below, I recommend that the Court enter default judgment in favor of Plaintiffs and award damages, pre-judgment interest, and reasonable attorneys’ fees and costs as set forth below.

FACTS¹

Plaintiffs are former employees of a restaurant operated by Defendant Taste and Sabor LLC, d/b/a Taste and Sabor) (the "Restaurant"). Plaintiffs each worked as a cook at the Restaurant, which is located at 318 W. 231 Street in the Bronx. Defendant

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Nurkia DeLeon ("DeLeon") is a manager of the Restaurant who had the authority to hire and fire employees and determine employee compensation and work schedules. The Restaurant and DeLeon are referred collectively herein as Defendants.²

Leonardo was employed by Defendants from approximately June 15, 2018 until February 12, 2020. He claims to have regularly worked in excess of 40 hours per week but provides his hours only for the period between September 1, 2019 and February 12, 2020.³ Specifically, Leonardo asserts that during that period, he worked from approximately 7:00 am or 8:00 a.m. until on or about 7:00 p.m. or 8:00 p.m., six or seven days a week, resulting in a typical work week of approximately 78 hours.⁴

Octaviano was employed by Defendants from approximately June 1, 2018 until on or about February 12, 2020. Like Leonardo, Octaviano claims to have worked in excess of 40 hours per week and provides his hours only for the period between September 1, 2019 and February 12, 2020. Specifically, Octaviano asserts that during that period he worked from approximately 2:00 p.m. to 10:00 p.m. six days a week and from approximately 10:00 a.m. until 10:00 p.m. two Sundays per month, resulting in a typical work week of 54 hours.⁵

Robles was employed by Defendants from approximately May 1, 2018 until February 11, 2020. Robles typically worked 27 hours per week, from approximately 5:30 p.m. until 10:00 p.m. six days per week.⁶ Defendants paid Robles $15.00 per hour.

All three Plaintiffs assert that they were not paid at all for the last several weeks of their employment with Defendants. For Leonardo, that period was approximately ten weeks, from December 2019 until February 12, 2020; for Octaviano, the period was approximately six weeks, from January 2020 until February 12, 2020; for Robles, the period was approximately eight weeks, from December 20, 2019 to February 11, 2020.

Each also asserts that they never received any notice in English and Spanish (their native language) of their rate of pay, any information about minimum wage requirements, or any wage statements detailing their wages.

PROCEDURAL HISTORY

Plaintiffs commenced this action on July 14, 2020. (Dkt. 1.) Although filed as a collective action, Octaviano, Leonardo, and Robles are the only plaintiffs. In September 2020, Plaintiffs served Defendant DeLeon personally and the Restaurant

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through the New York State Secretary of State. (See Dkts. 12.) None of the Defendants filed an answer or other response to the Complaint. On July 13, 2021, Plaintiffs filed applications for certificates of default against the Defendants, which the Clerk of Court entered that same day. (Dkts. 34-38.) Plaintiffs then moved for default judgement on July 15, 2021. (Dkt. 39.) On November 5, 2021, the motion was referred to me for report and recommendation. (Dkt. 44.) Plaintiffs’ default motion papers included exhibits relating to damages and legal fees but did not contain any attestation as to those exhibits. Accordingly, the Court requested a supplemental affirmation attesting to damages and legal fees, which the Plaintiffs filed on December 6, 2021. (Dkt. 50.)

DEFAULT JUDGMENT REQUIREMENTS ARE MET

Federal Rule Of Civil Procedure ("Rule") 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Au Bon Pain Corp. v. Artect, Inc. , 653 F.2d 61 (2d Cir. 1981). Rule 55 establishes a two-step process for obtaining a judgment against a defaulting party. See Priestley v. Headminder, Inc. , 647 F.3d 497, 504-05 (2d Cir. 2011) ; City of New York v. Mickalis Pawn Shop , LLC, 645 F.3d 114, 128 (2d Cir. 2011) (quoting New York v. Green , 420 F.3d 99, 104 (2d Cir. 2005) ). A plaintiff must first obtain from the Clerk of Court a certification of default indicating that a party has "failed to plead or otherwise defend." Fed. R. Civ. 55(a). Second, upon obtaining a certification of default, a plaintiff must move for default judgment pursuant to Rule 55(b). Green , 420 F.3d at 104. Here, Plaintiffs satisfied both the first steps by obtaining certificates of default and then moving for default judgment.

The decision to grant a motion for default judgment is left to the sound discretion of the district court. Cement And Concrete Workers District Council Welfare Fund v. Metro Foundation Contractors. Inc. , 699 F.3d 230, 233 (2d Cir. 2012) (quoting Finkel v. Romanowicz , 577 F.3d 79, 88 (2d Cir. 2009) ) (" Rule 55(b) commits this decision to the sound discretion of the district court"). To determine whether a motion for default judgment is warranted, courts within this district consider three factors: (1) whether the defendant's default was willful; (2) whether the defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment. Guggenheim Capital, LLC v. Birnbaum , 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment); Santana v. Latino Express Restaurants, Inc. , 198 F.Supp. 3d 285, 291 (S.D.N.Y. 2016) (same).

Here, all three factors weigh in Plaintiffs’ favor. First, Defendants’ non-appearance and failure to respond to the Complaint or otherwise appear indicate willful conduct. See Santana , 198 F.Supp.3d at 291 n.2 ; Indymac Bank, F.S.B. v. National Settlement Agency, Inc. , No. 07-CV-6865, 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007). Second, the Court is unable to determine that Defendants would be able to present any meritorious defense to Plaintiffs’ claims because Defendants have failed to appear. See Santana , 198 F. Supp. 3d at 291 n.2 (reaching same conclusion); Fermin v. Las Delicias Peruanas Restaurant, Inc. , 93 F. Supp. 3d 19, 31 (E.D.N.Y. 2015) (reasoning that a meritorious defense cannot be established where the defendant has not filed an answer, made an appearance and responded to the claims in the case). Third, "Plaintiff[s] will be prejudiced if, in light of Defendants’ default, [they are] unable

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to vindicate [their] rights and receive appropriate compensation for [their] hours worked." Santana , 198 F. Supp. 3d at 291 n.2.

The Court thus finds that default judgment should be entered in favor of Plaintiffs and against Defendants. That is not the end of the story, however. The Court also needs to address liability and damages.

When, as here, a defendant defaults, all well-pled facts alleged in the complaint, except those relating to the amount of damages, must be accepted as true. Mickalis Pawn Shop , 645 F.3d at 137 ("It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint" (internal quotations marks omitted)); Finkel , 577 F.3d at 84 (trial court is required to "accept all of [the plaintiff's] factual allegations as true and draw all reasonable inferences in its favor.") "This principle applies regardless of whether default is entered as a discovery sanction or for failure to defend." Walpert v. Jaffrey , 127 F. Supp.3d 105, 129 (S.D.N.Y. 2015). The court may also rely on factual allegations pertaining to liability contained in affidavits and declarations submitted by the plaintiff. See, e.g. , Tamarin v. Adam Caterers, Inc. , 13 F.3d 51, 54 (2d Cir. 1993) ; Fustok v. ContiCommodity Services, Inc. , 873 F.2d 38, 40 (2d Cir. 1989). Nonetheless, the court "must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed." Shld, LLC v. Hall , No. 15-CV-6225, 2017 WL 1428864, at *3 (S.D.N.Y. April 20, 2017) ; see Finkel , 577 F.3d at 84.

Once liability has been established, a plaintiff must provide admissible evidence establishing the amount of damages with reasonable certainty. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., Division of Ace Young Inc. , 109 F.3d 105, 111 (2d Cir. 1997) ; see also Lenard v. Design Studio , 889 F. Supp.2d 518, 527 (S.D.N.Y. 2012) (in an inquest following a default, "[a] plaintiff must ... substantiate a claim with evidence to prove the extent of damages").

To assess whether the plaintiff has established a sufficient basis for damages, a court has the discretion, but is not required, to hold a hearing. See Fed. R. Civ. P. 55(b)(2) ; F...