Bello v. Pro-Line Pumping Corp.

Docket Number22 CV 4081 (RPK)(RML)
Decision Date20 June 2023
PartiesFAUSTO BELLO and MELVIN CANO GALICIA, Plaintiffs, v. PRO-LINE PUMPING CORP., NICOLAS BARCIA a/k/a NICOLAS BARCIA ESCALANTE, NICOLAS ONOFRE BARCIA-ESCALANTE, or NICHOLAS and JESSICA LOPEZ-JARRIN a/k/a JESSICA PAOLA LOPEZ-JARRIN or JESSICA BARCIA, Defendants. Regular Hourly Rate of Pay Calculations - Both Plaintiffs Pay Period
CourtU.S. District Court — Eastern District of New York

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FAUSTO BELLO and MELVIN CANO GALICIA, Plaintiffs,
v.
PRO-LINE PUMPING CORP., NICOLAS BARCIA a/k/a NICOLAS BARCIA ESCALANTE, NICOLAS ONOFRE BARCIA-ESCALANTE, or NICHOLAS and JESSICA LOPEZ-JARRIN a/k/a JESSICA PAOLA LOPEZ-JARRIN or JESSICA BARCIA, Defendants.

No. 22 CV 4081 (RPK)(RML)

United States District Court, E.D. New York

June 20, 2023


REPORT AND RECOMMENDATION

ROBERT M. LEVY United States Magistrate Judge

By order dated October 19, 2022, the Honorable Rachel P. Kovner, United States District Judge, referred plaintiffs' motion for default judgment to me for report and recommendation. For the reasons stated below, I respectfully recommend that plaintiffs' motion be granted, and that plaintiff Fausto Bello be awarded $415,530.48 and plaintiff Melvin Cano Galicia be awarded $399,731.88 in damages, plus pre- and post-judgment interest, and $4,592 in attorney's fees and costs.

Background and Facts

Plaintiffs Fausto Bello (“Bello”) and Melvin Cano Galicia (“Galicia” or “Cano,” together with Bello, “plaintiffs”) commenced this wage and hour action on July 12, 2022, against defendants Pro-Line Pumping Corp. (“Pro-Line” or the “corporate defendant”), Nicolas Barcia (“Barcia”) and Jessica Lopez-Jarrin (“Lopez-Jarrin,” together with Barcia, the “individual defendants,” or together with the corporate defendant, “defendants”) asserting claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 301, et seq., and the New York Labor Law

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(“NYLL”) §§ 190, et seq. (Complaint, dated July 12, 2022 (“Compl.”), Dkt. No. 1.) The individual defendants are alleged to be owners, officers and/or agents of Pro-Line Pumping Corp., a domestic corporation maintaining a principal place of business at 1723 Stein Drive, Bay Shore, New York. (Id. ¶¶ 13-29.) Defendants allegedly employed Bello as a concrete pump operator, maintenance mechanic, and laborer from approximately June 2015 through approximately June 2021 (id. ¶¶ 12, 55) and Galicia as a driver and concrete pump machine operator from approximately 2012 through approximately April 2021. (Id. ¶¶ 11, 40.)

All defendants were properly served with the summons and the complaint. (See Affidavit of Service of Emily M. Corbett, sworn to July 15, 2022, Dkt. No. 5; Affidavits of Service of Joe DeRosa, sworn to July 19, 2022, Dkt. Nos. 6, 7.) Defendants have failed to answer or otherwise move with respect to the complaint. Plaintiffs moved for entry of default pursuant to Federal Rule of Civil Procedure 55(a) as to all three defendants on September 8, 2022. (See Request for Certificate of Default, filed Sept. 8, 2022, Dkt. No. 8.) On September 13, 2022, the Clerk of the Court noted the defaults of all defendants. (See Clerk's Entry of Default, dated Sept. 13, 2022, Dkt. No. 10.) On October 18, 2022, plaintiffs moved for default judgment. (See Motion for Default Judgment, dated Oct. 18, 2022, Dkt. No. 12.) Judge Kovner referred plaintiffs' motion to me on October 19, 2022. (See Order, dated Oct. 19, 2022.)

Plaintiffs seek default judgment on claims under the FLSA and NYLL for defendants' failure to (1) pay them minimum wages and overtime compensation, (2) pay them spread of hours wages, (3) provide proper wage notices and wage statements, and (4) timely pay wages owed. (See Affirmation of Colin Mulholland, Esq. in Support of Plaintiffs' Application for Default Judgment, dated Oct. 18, 2022 (“Mulholland Aff.”), Dkt. No. 12-1, ¶¶ 1, 2, 4; see also Compl. ¶¶ 70, 77, 81, 87, 90, 94, 97, 101.) Plaintiffs request an award of back pay in the

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form of unpaid minimum wages, overtime wages, and spread of hours wages; damages of late pay; liquidated damages; statutory damages; pre- and post-judgment interest; and attorney's fees and costs.[1](Mulholland Aff. ¶ 4.)

Discussion

The Federal Rules of Civil Procedure provide a two-step process for plaintiffs to obtain a default judgment. First, “[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, the clerk must enter the party's default,” as it has done here. FED. R. CIV. P. 55(a). Second, after a default has been entered against the defendant and the defendant fails to appear or move to set aside the default under Rule 55(c), the court may, on a plaintiff's motion, enter a default judgment. FED. R. CIV. P. 55(b)(2). To grant a default judgment, the court must ensure that the plaintiff took all the required steps in moving for default judgment, including providing proper notice to defendants of the lawsuit. Here, as explained above, plaintiffs have demonstrated that they properly served defendants with the summons and complaint. Plaintiffs have also demonstrated that they served the Motion for Default Judgment and accompanying submissions on defendants in compliance with Local Rule 55.2(c). (See Affirmation of Service of Default Judgment Motion and Supporting Exhibits, dated Oct. 18, 2022, Dkt. No. 12-12.)

A. Liability

An entry of default alone is insufficient to establish liability, “since a party in

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default does not admit mere conclusions of law.” Trs. of the Plumbers Loc. Union No. 1 Welfare Fund v. Philip Gen. Constr., No. 05 CV 1665, 2007 WL 3124612, at *3 (E.D.N.Y. Oct. 23, 2007) (citation omitted). A defendant's “default is deemed to constitute a concession of all well pleaded allegations of liability.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Where a plaintiff moves for default judgment, the court “is required to accept all of [the plaintiff's] factual allegations as true and draw all reasonable inferences in [the plaintiff's] favor.” Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). The court must also “determine whether [plaintiffs'] allegations establish [defendants'] liability as a matter of law.” Id.

Plaintiffs have sufficiently pleaded factual allegations that give rise to liability for unpaid minimum and overtime wages under the FLSA and NYLL (Compl. ¶¶ 70-71, 77-79, 8182, 86-88), unpaid spread of hours wages under the NYLL (Compl. ¶¶ 90-91), late payment of wages under NYLL (Compl. ¶¶ 101-102), and wage statement and notice violations. (Compl. ¶¶ 95, 97.) The extent to which plaintiffs can recover damages for these violations initially depends on whether: (1) their claims were timely; (2) they are covered employees under the FLSA and the NYLL; and (3) defendants were plaintiffs' employers under the FLSA and NYLL.

1. Timeliness

For claims to be timely under the FLSA, they must have arisen within the two years prior to filing of the complaint, or-for willful violations-within the three years prior. 29 U.S.C. § 255(a). Here, the complaint, which was filed on July 12, 2022, alleges willful violations of the FLSA. (See Compl. ¶¶ 71, 78.) Therefore, the FLSA's three-year statute of limitations applies. Because Galicia and Bello allege that they were not properly paid wages

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from July 12, 2019 through April 2022 and from July 12, 2019 through June 2022 respectively, I find that those claims are timely under the FLSA. However, the portions of plaintiffs' claims that occurred prior to July 12, 2019 are not timely under the FLSA.[2] Plaintiffs may only recover for the federal violations that occurred on or after July 12, 2019.

Regardless of willfulness, plaintiffs' claims must arise within six years prior to the filing of the complaint to be timely under the NYLL. See N.Y. LAB. L. §§ 198(3), 663(3). Plaintiffs argue that Governor Cuomo's Executive Order No. 202.8[3]tolled the statute of limitations for six months and fifteen days (198 days) from April 19, 2020 until November 3, 2020. (Memorandum of Law in Support of Plaintiffs' Application for Default Judgment, filed Oct. 18, 2022 (“Pls.' Mem.”), Dkt. No. 12-2, at 12.) Plaintiffs contend that they may therefore recover an additional six months and fifteen days under the NYLL. (Id.)

In support of their argument, plaintiffs cite to a Second Department opinion that considered Executive Order No. 202.8 and noted “[a] toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period.” (Id. (quoting Brash v. Richards, 149 N.Y.S.3d 560 (2d Dep't 2021)).) Courts in this Circuit have found that Executive Order 202.8 applies to federal

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cases involving New York state law statutes of limitations. See, e.g., Marquez v. Indian Taj, Inc., No. 20 CV 5855, 2022 WL 4485948, at *2 (E.D.N.Y. Aug. 5, 2022), report and recommendation adopted, 2022 WL 4485185 (E.D.N.Y. Sept. 27, 2022) (granting 228 days-worth of tolling on NYLL claims in federal court); Bowers v. City of Salamanca, No. 20 CV 1206, 2021 WL 2917672, at *6 (W.D.N.Y. July 12, 2021) (finding Executive Order 202.8 applicable to § 1983 cases brought in federal court); Citi Connect, LLC v. Loc. Union No. 3, No. 20 CV 5147, 2020 WL 5940143, at *3-4 (S.D.N.Y. Oct. 7, 2020) (holding that Executive Order 202.8 tolled the statute of limitations in a claim brought under the False Claims Act); Bonilla v. City of New York, No. 20 CV 1704, 2020 WL 6686531 (E.D.N.Y. Oct. 3, 2020). Accordingly, I find that plaintiff may recover under the NYLL for claims that occurred on or after December 27, 2015.[4]

2. Employee Coverage

Since the provisions of the FLSA and NYLL apply only to employees of covered employers, a plaintiff in a wage and hour action must show that they were defendants' employee, and that defendants were employers subject to the coverage of each statute. For purposes of the FLSA, an employee is “any individual employed by an employer,” meaning any individual whom an employer “suffer[s] or permit[s] to work.” 29 U.S.C. §§ 203(e)(1); (g). Absent a statutory exemption, such individuals are protected by the FLSA, so long as they work...

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