Garcia v. Chirping Chicken Nyc, Inc., 15 CV 2335 (JBW) (CLP)
| Decision Date | 11 March 2016 |
| Docket Number | 15 CV 2335 (JBW) (CLP) |
| Parties | ALBERTO GARCIA, et al., Plaintiffs, v. CHIRPING CHICKEN NYC, INC., et al., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
On April 23, 2015, plaintiffs Alberto Garcia and Armando Morales Hernandez commenced this action against defendants Chirping Chicken NYC, Inc., Chirping Chicken USA, Inc., and Ramji Dass, seeking unpaid overtime and minimum wages pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and New York Labor Law ("NYLL") § 650 et seq., as well as unpaid spread of hours wages, and damages stemming from defendants' alleged failure to comply with the wage notice requirements under the NYLL. After defendants failed to answer or otherwise respond to the Complaint for several months, plaintiffs requested entry of a certificate of default on July 9, 2015. On July 10, 2015, the Clerk of Court entered a certificate of default against all defendants. Thereafter, on September 1, 2015, plaintiffs moved for a default judgment against all defendants. On December 17, 2015, the motion was referred to the undersigned to conduct an inquest and issue a Report and Recommendation as to damages. The Court held an inquest hearing on February 4, 2016, at which both plaintiffs testified; defendants did not appear.
For the reasons set forth below, the Court respectfully recommends that the motion for default judgment be granted, and that all defendants be held jointly and severally liable for $228,697.69 in damages and interest owed to plaintiff Garcia, $146,307.24 in damages and interest owed to plaintiff Hernandez, and for attorneys' fees and costs of $9,470.50.
Defendants Chirping Chicken NYC, Inc. and Chirping Chicken USA, Inc. (together, the "Chirping Chicken defendants") are two corporations in the food services business, organized and existing under the laws of the State of New York, with a common principal place of business located at 31-10 23rd Avenue, Astoria, N.Y. 11105 and/or 3015 Broadway, Astoria, N.Y. 11106.1 . Defendant Ramji Dass is alleged to be an officer, director, and/or owner of the Chirping Chicken defendants. (Compl. ¶ 12).
Plaintiffs Alberto Garcia and Armando Morales Hernandez are both residents of the State of New York who began working for defendants at different times and in various capacities. (Id. ¶¶ 8, 9). According to the Complaint, Alberto Garcia worked "primarily in the kitchen and also as a delivery person from March 17, 2009" to the date of the Complaint. (Id. ¶ 17). For this work, the Complaint alleges that Garcia received a flat weekly rate of approximately $230 to $360 in cash. (Id. ¶ 19). At the February 4th inquest hearing, Garcia testified that when he began working for the defendants in 2009, he was paid $230 per week in cash. . Garcia further testified that during this period, he worked six days a week, beginning at 10:30 a.m. and ending at 11:00 p.m., with a half hour lunch break. (Tr. at 9:5-12; but see Compl. ¶ 18 ()). Approximately three years after Garcia started working for the defendants, he received a wage increase to $360 per week. (Tr. at 9:1-2). He testified that he was paid on Mondays, in cash, and received no other wages from his employment. (Id. at 9:10-17; see also Compl. ¶ 26).
The Complaint alleges that Armando Morales Hernandez worked "primarily in as [sic] a cook and also as a cleaner from May 2008" to the date of the Complaint. (Compl. ¶ 20). For this work, Hernandez received a flat weekly rate of approximately $600 to $650 in cash. (Id. ¶ 22). During the inquest, Hernandez testified that when he first started working, he was paid $600 a week, for 6 days of work. (Tr. at 12:8-12). He testified that his hours were from 10:30 a.m. to 11:00 p.m., and that he received a thirty-minute lunch break (Id. at 13:5-7; see also Hernandez Decl.4 ¶ 9; but see Compl. ¶ 21 ()). After three years of working for the defendants, Hernandez's wages were increased to $620 an hour and then in 2013, they went to $650 an hour. (Id. at 13:15-14:2). Like Garcia, Hernandez testified that he was paid in cash and received no other pay. (Id. at 12:7; see also Compl. ¶ 26).
Both plaintiffs testified that defendant Dass was the owner of the Chirping Chicken defendants — the "boss," who hired them, gave them their work schedules, and assigned them their duties. (Id. at 9:18-10:3; 14:17-15:4). They confirmed the allegations in the Complaint that Dass "dominated the day-to-day operating decisions" of the Chirping Chicken defendants: hehad the power to hire and fire employees, supervise and control employee work schedules or conditions of employment, determine the rate and payment method for employees, and maintain employment records. (Compl. ¶¶ 30-31).
In the Complaint, plaintiffs allege that, beginning in April 2009, defendants regularly required plaintiffs to work more than 40 hours per week and more than 10 hours per day. (Id. ¶¶ 3-4). As a result, plaintiffs claim they often did not receive minimum wages for the first 40 hours worked each week in violation of the FLSA5 (First Cause of Action), nor did they receive overtime for any additional hours worked, in violation of the FLSA (Second Cause of Action), and in violation of the NYLL (Third Cause of Action). (Id. ¶¶ 27-28). Further, plaintiffs allege that defendants failed to pay spread of hours compensation for the days they worked more than ten hours per day, in violation of the NYLL (Fourth Cause of Action), and that defendants failed to provide pay stubs along with the cash payments for each pay period plaintiffs worked in violation of the NYLL (Fifth Cause of Action). (Id. ¶ 5). These decisions, plaintiffs claim, were the result of a formal practice instituted by Dass. (Id. ¶ 6).
On April 23, 2015, plaintiffs filed this action. The Chirping Chicken defendants were served on April 27, 2015. (See Docket Nos. 7, 8). Defendant Dass was served on May 5, 2015. (See Docket No. 9). On July 9, 2015, after none of the defendants had responded to theComplaint, plaintiffs requested entry of a certificate of default against all defendants. The Clerk of Court entered default against all defendants on July 10, 2015. Plaintiffs filed the instant motion for default judgment on September 1, 2015.
On December 17, 2015, the Honorable Jack B. Weinstein referred the motion to the undersigned to conduct an inquest and prepare a Report and Recommendation as to the motion. Supplemental briefing was filed on January 13, 2016, and an inquest hearing was held on February 4, 2016. As such, the Court makes its recommendations based on the documents filed in conjunction with the initial motion for default judgment, the supplemental briefing provided, and the testimony provided at the inquest hearing.
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.; FED R. CIV. P. 55(a) (). 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(b).
The Second Circuit has cautioned that since a default judgment is an extreme remedy, itshould only be entered as a last 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, a plaintiff is not entitled to a default judgment as a matter of right simply because a defendant is in default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) ().
The Court has significant discretion to consider a number of factors in deciding whether to grant a default judgment, including: (1) whether the grounds for default are clearly established; (2) whether the claims were pleaded in the complaint, thereby placing the defendants on notice, see FED. R. CIV. P. 54(c) (); Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96; cf. King v. STL Consulting, LLC, No. 05 CV 2719, 2006 WL 3335115, at *4-5 (E.D.N.Y. Oct. 3, 2006) (); and (3) the amount of money potentially involved - the more money involved, the less justification for entering the default judgment. Hirsch v. Innovation Int'l, Inc., No. 91 CV 4130, 1992 WL 316143, at *2 (S....
To continue reading
Request your trial