Cisneros v. Zoe Constr. Corp.

• Docket Number: 21 CV 6579 (DG) (CLP)
• Decision Date: 10 August 2023
• Parties: JESUS EMPERATRIZ CISNEROS, Plaintiff, v. ZOE CONSTRUCTION CORP., CARLOS ATIENCIA, and ALEXANDRA LITUAMA, Defendants.
• Court: U.S. District Court — Eastern District of New York

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JESUS EMPERATRIZ CISNEROS, Plaintiff, v. ZOE CONSTRUCTION CORP., CARLOS ATIENCIA, and ALEXANDRA LITUAMA, Defendants.

No. 21 CV 6579 (DG) (CLP)

United States District Court, E.D. New York

August 10, 2023

REPORT & RECOMMENDATION

CHERYL L. POLLAK, United States Magistrate Judge

On November 24, 2021, plaintiff Jesus Emperatriz Cisneros commenced this action against defendants Zoe Construction Corporation (“Zoe Construction”), Carlos Atiencia (“Atiencia”), and Alexandra Lituama (“Lituama”) (collectively “defendants”), seeking damages for unpaid overtime wages pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq. and the New York Labor Law (“NYLL”) §§ 190 and 650, et seq., unpaid “spread of hours” pursuant to N.Y. Comp. Codes R & Regs. Tit. 12, § 146-1.6, and violations of the NYLL's notice and recordkeeping and wage statement provisions. (See Compl.^[1]).

Currently pending before this Court is plaintiff's motion for default judgment against defendants. For the reasons set forth below, the Court respectfully recommends that plaintiff's motion be granted in part and denied in part and that plaintiff be awarded $22,905.69 in damages, as well as pre- and post-judgment interest, and $3,942.50 in attorney's fees and costs.

FACTUAL BACKGROUND

Plaintiff who resides in Queens County, N.Y., was employed by defendants at Zoe Construction from May 2018 to October 2020, as a painter, compound maker, and general laborer. (Id. ¶¶ 3, 9, 36, 37; Cisneros Decl.^[2] ¶¶ 3, 6). Defendant Zoe Construction is a domestic corporation organized under New York state law, with its principal place of business at 7237 Cooper Ave, Ridgewood, N.Y. 11385. (Compl. ¶ 11). Defendants Alexandra Lituama and Carlos Atiencia are alleged to be the “owner[s], officer[s], and/or agent[s]” of Zoe Construction and possess operational control and ownership interest in Zoe Construction. (Id. ¶¶ 12-13, 1819). At all times relevant to this action, defendants Lituama and Atiencia were both responsible for hiring and firing employees of Zoe Construction and supervising employees on a daily basis. (Id. ¶¶ 15, 17, 22-23). Within the same period, defendant Lituama was responsible for determining wages and compensation and for issuing pay to employees. (Id. ¶¶ 14, 16). Additionally, during the same period, defendant Atiencia established plaintiff's schedule, had the “final word on all decisions relating to the business operations of Zoe Construction,” directed plaintiff in his^[3] daily tasks, controlled/supervised the payroll practices at Zoe Construction, and issued payments to plaintiff “on a regular basis.” (Id. ¶¶ 20-21, 24-26).

According to the Complaint, plaintiff regularly worked in excess of 40 hours per week. (Id. ¶ 40). Specifically, between May 2018 and December 2019, for five (5) to seven (7) days per week, plaintiff worked from between 7:15 and 7:45 a.m. to between 4:30 and 10:00 p.m., working a total of 46 to 54 hours per week. (Id. ¶ 41). Then, between January 2020 and October 2020, for five (5) to seven (7) days per week, plaintiff worked from between 7:15 and 7:45 a.m. to between 4:30 and 8:00 p.m., working a total of 38 to 46 hours per week. (Id. ¶ 42). Plaintiff asserts that, from May 2018 to October 2020, defendants paid a “day rate” of $170 per day in both 2018 and 2019, and of $175 per day in 2020, with no account for his overtime hours during either time period. (Id. ¶ 43). As a result, plaintiff alleges, defendants never paid him overtime compensation for hours worked over 40 in a week. (Id. ¶¶ 43, 48). Additionally, plaintiff alleges that defendants did not maintain proper employment records or provide wage statements or wage notices. (Id. ¶¶ 44-46).

Plaintiff asserts causes of action under (1) the FLSA for failure to pay plaintiff the statutory overtime compensation, and under (2) the NYLL for failure to pay plaintiff the statutory overtime compensation, (3) violation of the spread of hours requirements under the NYLL, (4) violation of the notice and recordkeeping requirements under the NYLL, and (5) violation of the wage statement requirements under the NYLL. (Id. ¶¶ 47-64).

PROCEDURAL BACKGROUND

Following the filing of the Complaint on November 24, 2021, the Summons and Complaint were served on Zoe Construction through the Secretary of State on December 23, 2021. (ECF No. 12). On December 29, 2021, defendants Atiencia and Lituama were served by affixing a copy of the Summons and Complaint on the door of the defendants' joint address, and by sending a copy by first class mail, on that same date. (See ECF Nos. 10-11; see also Mulholland Decl.^[4] ¶¶ 6-8). On March 29, 2022, plaintiff's counsel filed a letter requesting time to search for any additional means of contacting defendants, who had yet to respond to their December service, to assure that any and all means of service had been utilized before entry of a default. (ECF No. 14). The Court granted this request, and on April 25, 2022, the amended summons was served on defendants Atiencia and Lituama at a newly-ascertained address shared by both defendants. (ECF Nos. 19-20). Plaintiff's counsel also submitted a letter affirming that he had served the corporation. (ECF No. 21). When defendants failed to file an Answer or otherwise respond within the required time period, plaintiff requested that Certificates of Default be entered against the defendants on June 14, 2022. (ECF No. 23). Thereafter, on June 17, 2022, the Clerk of Court entered Certificates of Default against defendants. (ECF No. 24).

On October 11, 2022, plaintiff filed a motion for default judgment (see ECF No. 27), accompanied by a memorandum of law in support of the motion, a declaration from plaintiff, a declaration from plaintiff's counsel, plaintiff's damages calculations, the attorney's billing records, a copy of the Complaint, copies of the Certificates of Default, a proposed form of judgment, and an affidavit of service. (See Cisneros Decl.; Mulholland Decl.; Dam. Calc.;^[5]Billing Recs.^[6]).

On October 12, 2022, the Honorable Diane Gujarati referred plaintiff's default judgment motion to the undersigned for a Report and Recommendation. On April 17, 2023, the undersigned issued an Order providing defendants with an opportunity to respond to plaintiff's motion and to request an inquest hearing. (ECF No. 28).^[7] Defendants did not respond.

DISCUSSION

I. Default and Default Judgment Standard

Rule 55 of the Federal Rules of Civil Procedure sets forth a two-step process for entry of a default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party's default on the Clerk's record of the case. See id.; see also Fed R. Civ. P. 55(a) (providing that “[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”). Second, after the Clerk of Court enters a default against a party, if that party fails to appear or otherwise move to set aside the default pursuant to Rule 55(c), the court may enter a default judgment. See Fed.R.Civ.P. 55(c). In this case, the Clerk of the Court entered a default against defendants on June 17, 2022. (See ECF No. 24).

The Second Circuit has cautioned that since a default judgment is an extreme remedy, it “must remain a weapon of last, rather than first, resort.” See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). While the Second Circuit has recognized the “push on a trial court to dispose of cases that, in disregard of the rules, are not processed expeditiously [and] . . . delay and clog its calendar,” it has held that the district court must balance that interest with its responsibility to “[afford] litigants a reasonable chance to be heard.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96. Thus, in light of the “oft-stated preference for resolving disputes on the merits,” default judgments are “generally disfavored,” and doubts should be resolved in favor of the defaulting party. Id. Accordingly, plaintiff is not entitled to a default judgment as a matter of right simply because defendants are in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F.Supp. 160, 162 (S.D.N.Y. 1993) (noting that courts must “supervise default judgments with extreme care to avoid miscarriages of justice”).

The court has significant discretion and may consider a number of factors in deciding whether to grant a default judgment. These factors include: (1) whether the grounds for default are clearly established; (2) whether the claims were pleaded in the complaint, thereby placing the defendant on notice and (3) the amount of money potentially involved - the more money involved, the less justification for entering the default judgment. See Hirsch v. Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992); Fed.R.Civ.P. 54(c) (stating “[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings”); King v. STL Consulting LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5 (E.D.N.Y. Oct. 3, 2006) (holding that Rule 54(c) is not violated in awarding damages that accrued during the pendency of a litigation, so long as the complaint put the defendant on notice that the plaintiff may seek such damages). Additionally, a court may consider whether the facts alleged in the complaint state a valid cause of action, whether there are unresolved questions regarding material issues of fact as to liability or damages, whether plaintiff has been substantially prejudiced by the delay involved, and how harsh an effect a default judgment might have on the defendant. See Au Bon Pain...