Jemine v. Dennis

• Decision Date: 28 September 2012
• Docket Number: No. 08–CV–3072 (RRM)(MDG).,08–CV–3072 (RRM)(MDG).
• Citation: 901 F.Supp.2d 365
• Parties: Corey JEMINE, et al., Plaintiffs, v. Raven P.D. DENNIS, III, individually and d/b/a Cake Man Raven Confectionary, Cake Man Raven, Inc. d/b/a Cake Man Raven Confectionary and Cakeville USA Corp., Defendants.
• Court: U.S. District Court — Eastern District of New York

901 F.Supp.2d 365

Corey JEMINE, et al., Plaintiffs,

v.Raven P.D. DENNIS, III, individually and d/b/a Cake Man Raven Confectionary, Cake Man Raven, Inc. d/b/a Cake Man Raven Confectionary and Cakeville USA Corp., Defendants.

No. 08–CV–3072 (RRM)(MDG).

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

Sept. 28, 2012.

Bruce E. Menken, Jennifer Lea Smith, Beranbaum Menken Ben-Asher & Bierman, New York, NY, for Plaintiffs.

Gregory R. Preston, Preston Wilkins & Martin, New York, NY, for Defendants.

MEMORANDUM AND ORDER

ROSLYNN R. MAUSKOPF, District Judge.

On July 28, 2008, plaintiff employees commenced this against their employer, Raven P.D. Dennis, III, individually and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, Cake Man Raven Inc., f/k/a and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, and Cakeville USA Corp. (collectively, “defendants”), pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL” or “Labor Law”). (Compl. (Doc. No. 1); Amended Compl. (Doc. No. 37).) On August 27, 2010, 2010 WL 3420550, the Court entered default against all defendants as to liability, based on defendants' repeated failure to adequately participate in the case.¹ (Order Adopting Report and Recommendation (Doc. No. 47).) The Court thereafter referred the case to Magistrate Judge Marilyn D. Go for a report and recommendation as to damages. ( Id.; Order dated Nov. 12, 2010.)

On October 14, 2010, plaintiffs filed a motion for damages with a memorandum of law and supporting affidavits and exhibits. (Doc. No. 52.) Defendants filed a response to plaintiff's motion on December 28, 2010, but did not provide any evidentiary support. (Doc. No. 60.) Plaintiff's filed a reply on January 4, 2011. (Doc. No. 61.) Magistrate Judge Go held oral argument on September 30, 2011, which was attendedby counsel for both plaintiffs and defendants. ( See Minute Entry for Proceedings held 9/30/2011.) On September 11, 2012, Judge Go issued a report and recommendation (“the R & R”). (Doc. No. 65.)

Judge Go recommends that plaintiffs ² be awarded damages of $316, 862.91 against the defendants as follows: (1) damages for unpaid wages, overtime pay and liquidated damages under the FLSA and the New York Labor Law in the total amount of $225,277.06; (2) prejudgment interest of $36,798.85 to plaintiffs and at the rate of $16.35 per day from October 1, 2012 until entry of judgment; (3) attorneys' fees of $53,375.75; and (4) costs of $1,411.25. (R & R at 394.) Judge Go breaks out the awards by plaintiff in Appendix A to the R & R. (Doc. No. 65–1.) Objections to the R & R were due on or before September 28, 2012, and defendants timely filed objections to the R & R on that day. (Doc. No. 66.)

When reviewing an R & R, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party objects to an R & R, “the court is required to conduct a de novo review of the contested sections.” Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). However, where objections consist of “conclusory or general arguments, or simply reiterate[ ] the original arguments,” or are merely an “attempt to engage the district court in rehashing of the same arguments set forth in the original petition,” the Court reviews for clear error. DiPilato v. 7–Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y.2009).

The objections filed here are not only reiterate the arguments made by defendants before the magistrate judge in opposition to the motion for default judgment and damages, they are identical—word for word, and even including the errors in numbering the relevant paragraphs. Compare Def. Objections to the R & R (Doc. No. 66) with Def. Response to Motion for Damages (Doc. No. 60). Indeed, it appears that defendants merely uploaded as objections the very document they submitted to the magistrate judge in opposition to plaintiffs' motion. As such, the Court reviews the R & R for clear error, and finding none other than with respect to a mathematical calculation,³ adopts the R & R in its entirety.

CONCLUSION

Accordingly, it is hereby ORDERED that plaintiff's motion for default judgment and damages (Doc. No. 42) is GRANTED. Judgment shall enter against Raven P.D. Dennis, III, individually and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, Cake Man Raven Inc., f/k/a and d/b/a Cake Man Raven Confectionery and Cake Man Confectionery, and Cakeville USA Corp. in total amounts as follows: (1) damages for unpaid wages, overtime pay and liquidated damages under the FLSA and the New York Labor Law in the total amount of $225,731.99; (2) prejudgment interest of $37,454.41 to plaintiffs and at the rate of $16.69 per day from October 1, 2012 until entry of judgment; (3) attorneys' fees of $53,375.75; and (4) costs of $1,411.25. The total award shall be broken down in favor of each plaintiff as reflected in Appendix A to the magistrate judge's R & R (Doc. No. 65–1) as modified herein.

The Clerk of Court is directed to enter judgment accordingly. As this Order disposes of all parties and claims, the Clerk of Court is directed to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

MARILYN D. GO, United States Magistrate Judge.

Plaintiffs commenced this action on July 28, 2008 against defendants RAVEN P.D. DENNIS, III, individually and d/b/a CAKE MAN RAVEN CONFECTIONERY and CAKE MAN RAVEN INC., f/k/a and d/b/a/ CAKE MAN RAVEN CONFECTIONERY and CAKE MAN CONFECTIONERY, and CAKEVILLE USA CORP. alleging violations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., asserting claims under the New York Labor Law (“NYLL” or “Labor Law”). As a result of the defendants' failure to prosecute by not communicating with both counsel and the Court, the Honorable Roslynn R. Mauskopf entered default against all defendants as to liability and referred the case to me for a report and recommendation on the appropriate damages. See Order dated August 27, 2010 (ct. doc. 47).

After review of submissions from both the plaintiffs ¹ and defendants and consideration of their arguments at a hearing held, I respectfully recommend that the Court award plaintiffs damages as set forth more fully below.

FACTUAL BACKGROUND

The following facts are based on the uncontested allegations in the plaintiffs' amended complaint and declarations of plaintiffs which will be discussed in detail below. Defendant Dennis is the founder and owner of a bakery business known as “Cake Man Raven Confectionary” and the owner and majority shareholder of corporate defendant Cake Man Raven, Inc. and Cakeville U.S.A. Amended Complaint (“Am. Compl.”) at ¶¶ 11–12. Defendants operate a bakery in Brooklyn, New York, selling ornate and specialty cakes, and thus engage in the production of goods for commerce. Id. ¶¶ 13, 25. Defendants employed plaintiffs to perform various bakery-related tasks, including “taking orders, baking and icing cakes, cleaning up, [and] transporting baked goods within the City of New York.” Id. ¶ 14. While employed by defendants, plaintiffs often worked in excess of forty hours per week, but were either paid their regular wage rate or not at all for the overtime hours. Id. ¶ 17.

Plaintiffs have each submitted a signed and sworn declaration in support of their motion for default judgment and have supplemented their declarations with time sheets, payroll records and punch cards to the extent they were produced by defendants in discovery. However, the records are incomplete. In their respective declarations, plaintiffs describe the number of hours they regularly worked per week, the salary or hourly rate they were promised by defendants, and the amount they actually received from defendants. Id. Plaintiffs seek unpaid wages, liquidated damages, prejudgment interest, and attorneys' fees and costs. They calculate damages based on their recollections and the limited documentary evidence that is available. Decl. of Jennifer Smith dated October 14, 2010 (“10/14/10 Smith Decl.”) (ct. doc. 54) ¶ 5. After entry of default, defendants appeared through counsel to contest plaintiffs' allegations, making legal arguments through counsel's affidavit but not submitting any documentary evidence. I respectfully recommend that judgment be entered against defendants in the amounts described in detail below.

DISCUSSION

I. Governing Legal Standards

In deciding whether a default judgment should be entered following entry of default, a court may accept all well-pleaded allegations in the unanswered complaint as true but must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir.1981) ( “[A] district court has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action.”) It is for the court to “consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit conclusions of law.” Leider v. Ralfe, 2004 WL 1773330, at *7 (S.D.N.Y.2004) (quoting In re Indus. Diamonds Antitrust Litig., 119 F.Supp.2d 418, 420 (S.D.N.Y.2000)).

A defendant's default also does not constitute an admission of allegations pertaining to the amount of damages. See Finkel v. Romanowicz, 577 F.3d 79, 83 n. 6 (2d Cir.2009) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992)). A default merely establishes that damages were proximately caused by the defaulting party's conduct; that is, the acts pleaded in a complaint violated the laws upon which a claim is based and caused injuries as alleged. See Greyhound, 973 F.2d at 159. The movant need prove “only that the compensation sought relate[s] to the damages that naturally flow from the injuries pleaded.” Id. If...