Changxing v. Kai Xiang Dong, Ling Lin, Iron Sushi Third Ave., Inc.
| Decision Date | 07 March 2017 |
| Docket Number | 15 Civ. 7554 (GBD) (AJP) |
| Parties | CHANGXING LI, GUOMIN LI, JIAN LI, YUXIANG WANG, and MIN ZHANG, Plaintiffs, v. KAI XIANG DONG, LING LIN, IRON SUSHI THIRD AVENUE, INC. d/b/a IRON SUSHI, IRON SUSHI LOVE, INC. d/b/a IRON SUSHI, IRON SUSHI FUSION, INC. d/b/a IRON SUSHI, Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT & RECOMMENDATION
On August 8, 2016, Judge Daniels referred plaintiffs' initial motion for default judgment to me for an inquest. (Dkt. No. 24.) Plaintiffs thereafter withdrew their motion, filed and served an Amended Complaint (Dkt. No. 29), and on December 9, 2016, the Clerk of Court entered a default against defendants pursuant to Rule 55(a) of the Federal Rules of Civil Procedure (Dkt. No. 50). Presently before the Court is plaintiffs' December 16, 2016 renewed motion for default judgment. (Dkt. No. 51.)
For the reasons discussed below, the Court should grant plaintiffs' motion (Dkt. No. 51) and enter judgment for plaintiffs against defendants, jointly and severally, as follows: $88,763.10 for Changxing Li (plus continuing prejudgment interest of $3.92 per day); $100,203.32 for Guomin Li (plus continuing prejudgment interest of $6.60 per day); $37,607.89 for Jian Li (plus continuing prejudgment interest of $0.73 per day); $80,675.68 for Yuxiang Wang (plus continuing prejudgment interest of $2.74 per day); $48,055.17 for Min Zhang (plus continuing prejudgment interest of $0.72 per day), plus attorneys' fees and costs of $24,372.55.
"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).
The amended complaint (Dkt. No. 29) alleges as follows:
Defendants own and operate Iron Sushi, a restaurant located at 440 Third Avenue in Manhattan. (Am. Compl. ¶¶ 16-22.) Defendants Kai Xiang Dong and Ling Lin, as owners and/or managing agents of Iron Sushi, held the power to hire and fire plaintiffs, control the terms and conditions of their employment, maintain employment records and determine the rate and method of compensation. (Id. ¶¶ 16-19.)
During their employment, plaintiffs worked either six full day shifts, lasting eleven and a half hours per day, or five full day shifts plus two half day shifts, lasting six hours per day, for a total of at least sixty-nine hours per week. (Id. ¶¶ 11-15, 46.) Defendants paid plaintiffs wages of approximately $850 to $1,400 per month, excluding tips, violating the minimum wage and overtime compensation provisions of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). (Am. Compl. ¶¶ 45, 47-52, 59, 61-63.) Defendants did not pay spread of hours for each day that plaintiffs worked more than ten hours (id. ¶¶ 64-66) or inform plaintiffs of their intention to take tip credits against their wages (id. ¶ 58). Defendants failed to maintain sufficient time records, and required plaintiffs to purchase and maintain trade tools (electric bicycles and batteries) as a condition of their employment. (Id. ¶¶ 39-40, 67-70, 74, 86, 129-34.) Defendants did not provide plaintiffs with wage notices or wage statements as required by the NYLL. (Id. ¶¶ 57-58, 71-73, 122-27.)
The amended complaint alleges that defendants' violations of the FLSA and NYLL were willful. (Id. ¶¶ 87, 101, 107-08, 113-14, 118-19.) The amended complaint asserts claims for unpaid minimum and overtime wages pursuant to the FLSA and NYLL (id. ¶¶ 79-90, 92-101, 104-08, 110-14), spread of hours pursuant to the NYLL (id. ¶¶ 116-19), statutory damages for NYLL wage statement violations (id. ¶¶ 121-26), and costs to purchase and maintain bicycles (id. ¶¶ 128-35). The amended complaint also seeks liquidated damages under both the FLSA and NYLL (id. Wherefore ¶¶ d-i), pre and post-judgment interest (id. ¶ m), and attorneys' fees and costs (id. ¶ n).
Plaintiff Changxing Li filed an affidavit stating that he worked for defendants as a delivery person from April 15, 2012 until August 17, 2015. (Dkt. No. 53: Yan Aff. Ex. G: Changxing Aff. ¶ 2.) During this time, Changxing1 took vacation from March 3, 2014 to April 16, 2014, and March 1, 2015 to April 16, 2015. (Id.) Every week, Changxing worked either six eleven and a half hour shifts, or five eleven and a half hour shifts plus two six hour shifts. (Id. ¶ 3.) Changxing received cash wages of $1,000 per month (excluding tips) from April 15, 2012 to December 31, 2013, and $1,100 per month (excluding tips) from January 1, 2014 to August 17,2015.2 (Id.) Changxing purchased an electric bicycle for $1,400, which had a useful life of two years, and replaced the battery every year for $450. (Id. ¶ 7.) Other bicycle maintenance costs totaled at least $200 per year. (Id.) Defendants never informed or provided notice to Changxing of the minimum wage and overtime laws or their intentions to take a tip credit against his wages. (Id. ¶¶ 8-9.) Defendants also failed to provide wage statements or any acknowledgment of his pay rate. (Id. ¶¶ 10-11.)
Plaintiff Guomin Li filed an affidavit stating that he worked for defendants as a delivery person from October 1, 2011 until July 5, 2015. (Dkt. No. 53: Yan Aff. Ex. H: Guomin Aff. ¶ 2.) Guomin took vacation from approximately April 8, 2015 to May 8, 2015. (Id.) Every week, Guomin worked six eleven and a half hour shifts. (Id. ¶ 3.) Guomin received cash wages of $1,100 per month from October 1, 2011 to December 31, 2012, $1,200 per month from January 1, 2013 to June 30, 2014, and $1,400 per month from July 1, 2014 to July 4, 2015. (Id. ¶ 3.) Guomin purchased an electric bicycle for $1,400, which had a useful life of two years, and replaced the battery every year for $450. (Id. ¶ 7.) Other bicycle maintenance costs totaled at least $200 per year. (Id.) Defendants never informed or provided notice to Guomin of the minimum wage and overtime laws or their intentions to take a tip credit against his wages. (Id. ¶¶ 8-9.) Defendants also failed to provide wage statements or any acknowledgment of his pay rate. (Id. ¶¶ 10-11.)
Plaintiff Jian Li filed an affidavit stating that he worked for defendants as a delivery person from September 15, 2013 until August 9, 2014, and from September 7, 2014 to December31, 2014. (Dkt. No. 53: Yan Aff. Ex. I: Jian Aff. ¶ 2.) Every week, Jian worked either six eleven and a half hour shifts or five eleven and a half hour shifts plus two six hour shifts. (Id. ¶¶ 2-3.) Jian received cash wages of $900 per month from September 15, 2013 to January 31, 2014, and $1,000 per month from February 1, 2014 to August 9, 2014 and from September 7, 2014 to December 31, 2014. (Id. ¶ 3.) Jian purchased an electric bicycle for $1,400, which had a useful life of two years, and replaced the battery every year for $450. (Id. ¶ 7.) Other bicycle maintenance costs totaled at least $200 per year. (Id.) Defendants never informed or provided notice to Jian of the minimum wage and overtime laws or their intentions to take a tip credit against his wages. (Id. ¶¶ 8-9.) Defendants also failed to provide wage statements or any acknowledgment of his pay rate. (Id. ¶¶ 10-11.)
Plaintiff Yuxian Wang filed an affidavit stating that he worked for defendants as a delivery person from June 10, 2012 until September 15, 2012 and then from February 3, 2013 to August 15, 2015. (Dkt. No. 53: Yan Aff. Ex. J: Wang Aff. ¶ 2.) Wang took vacation from approximately April 6, 2015 to June 10, 2015. (Id.) Every week, Wang worked five eleven and a half hour shifts plus two six hour shifts. (Id. ¶ 3.) Wang received cash wages of $850 per month from June 10, 2012 to September 15, 2012, $900 per month from February 3, 2013 to December 31, 2013, $1,000 per month from January 1, 2014 to December 31, 2014, and $1,100 per month from January 1, 2015 to August 15, 2015. (Id.) Wang purchased an electric bicycle for $1,400, which had a useful life of two years, and replaced the battery every year for $450. (Id. ¶ 7.) Other bicycle maintenance costs totaled at least $200 per year. (Id.) Defendants never informed or provided notice to Wang of the minimum wage and overtime laws or their intentions to take a tip credit against his wages. (Id. ¶¶ 8-9.) Defendants also failed to provide wage statements or any acknowledgment of his pay rate. (Id. ¶¶ 10-11.)
Plaintiff Min Zhang filed an affidavit stating that he worked for defendants as a delivery person from May 1, 2014 to August 28, 2015. (Dkt. No. 53: Yan Aff. Ex. K: Zhang Aff. ¶ 2.) Every week, Zhang worked either six eleven and a half hour shifts or five eleven and a half hour shifts plus two six hour shifts. (Id. ¶ 3.) Zhang received cash wages of $1,000 per month. (Id.) Zhang purchased an electric bicycle for $1,400, which had a useful life of two years, and replaced the battery every year for $450. (Id. ¶ 7.) Other bicycle maintenance costs totaled at least $200 per year. (Id.) Defendants never informed or provided notice to Zhang of the minimum wage and overtime laws or their intentions to take a tip credit against his wages. (Id. ¶¶ 8-9.) Defendants also failed to provide wage statements or any acknowledgment of his pay rate. (Id. ¶¶ 10-11.)
Plaintiffs' attorney attached a chart to his affidavit, dividing plaintiffs' employment into periods based upon their wages, the year, and detailing the damage calculation during each period. (Dkt. No. 53: Yan Aff. Ex. L.) Plaintiffs seek unpaid minimum, overtime and spread of hour wages, double liquidated damages (i.e., under both the FLSA and NYLL), statutory penalties for wage notice...
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