Kantor v. Air Atl. Med.

• Decision Date: 07 July 2021
• Docket Number: 19-CV-03597 (EK) (ST)
• Parties: ALEXANDRE KANTOR, Plaintiff, v. AIR ATLANTIC MEDICAL, P.C., and ALEXANDER IVANOV, M.D., Individually, Defendants.
• Court: U.S. District Court — Eastern District of New York

ALEXANDRE KANTOR, Plaintiff, v. AIR ATLANTIC MEDICAL, P.C., and ALEXANDER IVANOV, M.D., Individually, Defendants.

No. 19-CV-03597 (EK) (ST)

United States District Court, E.D. New York

July 7, 2021

REPORT AND RECOMMENDATION

STEVEN L. TISCIONE, UNITED STATES MAGISTRATE JUDGE

I. BACKGROUND^[1]

Kantor is an individual who is a citizen of New York State and resides in Kings County. Compl. ¶ 6. Air Atlantic is a professional corporation duly organized under the laws of the State of New York with its principal place of business located at 115 Brightwater Court, Unit 1G, Brooklyn, New York 11235. Id. ¶ 7. Air Atlantic is a medical office. Id. ¶ 8. On or about September 28 2016, Kantor began working for Defendants as a “Manager/Practice Administrator, ” with the agreed upon salary of $750.00 per week. Id. ¶ 21. Ivanov was Kantor's supervisor. Id. ¶ 11. Kantor was mainly responsible for overseeing the operation and administration of Air Atlantic's medical office. Id. ¶ 22. Kantor worked at Air Atlantic from approximately September 28, 2016 to March 23, 2018 Id. ¶¶ 21, 36. Kantor alleges that throughout the entirety of his employment, Defendants consistently failed to pay him his earned wages, and also failed to pay him the statutory minimum wage. Id. at ¶¶ 19, 20. Altogether, Kantor alleges that he is owed $54, 650.00 in unpaid wages. Kantor Decl. ¶ 20, ECF No. 26-3.

Kantor commenced this action on June 19, 2019. See generally Compl. This Court held an initial conference on October 2, 2019, at which counsel for both parties appeared. See Min. Entry Oct. 2, 2019 Conference, ECF No. 14. On January 17, 2019, Kantor's counsel filed a letter indicating she “has been unable to reach or communicate with Defendants' counsel.” Letter, ECF No. 15. On January 23, 2020 this Court held a status conference, at which counsel for Defendants failed to appear. Min. Entry Jan. 23, 2020 Conference, ECF No. 16. As a result, this Court ordered Defendants to show cause on February 6, 2020 as to “why the Court should not recommend that a default judgment be entered against them for their failure to defend.” Id. However, Defendant's counsel failed to appear at the February 6, 2020 show cause hearing, and the attorney who was sent was not licensed to practice in this District. Min. Entry Feb. 6, 2020 Show Cause Hr'g, ECF No. 17. As a result, this Court awarded Kantor's counsel costs and attorney's fees in connection with both the January 23, 2020 conference and the February 6, 2020 conference. Id. Finally, Defendants did not appear at the settlement conference conducted via telephone on March 24, 2020. Min. Entry Mar. 24, 2020 Telephone Conference, ECF No. 18.

On September 23, 2020, this Court recommended, sua sponte, striking Defendants' answer, directing the Clerk of the Court to issue certificates of default against Defendants, and permitting Kantor to move for default judgement within 45 days of the issuance of the certificate of default. R. & R., ECF No. 19. On December 4, 2020, the Honorable Eric R. Komitee adopted this Court's Report and Recommendation in its entirety. Mem. & Order, ECF No. 21. On January 19, 2021, Plaintiff filed the instant Motion, see Notice Mot. Default J.; Mem. Supp. Mot. Default J., ECF No. 25, which the Honorable Eric R. Kommitee referred to this Court. See Electronic Order, Jan. 20, 2021.

II. APPLICABLE LAW

The Federal Rules of Civil Procedure prescribe a two-step process for a plaintiff to obtain a default judgment. First, when “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.” Fed.R.Civ.P. 55(a). Second, after a default has been entered against a 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).

Once a defendant is found to be in default, he is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, a court retains the discretion to determine whether a final default judgment is appropriate. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993); see also Taylor v. 312 Grand St. LLC, 2016 WL 1122027, at *3 (E.D.N.Y. Mar. 22, 2016) (“[J]ust because a party is in default, the plaintiff is not entitled to a default judgment as a matter of right.”) (internal quotation marks and citations omitted). In light of the Second Circuit's “oft-stated preference for resolving disputes on the merits, ” default judgments are “generally disfavored.” Enron, 10 F.3d at 95-96.

Thus, despite a defendant's default, the plaintiff bears the burden of demonstrating that the unchallenged allegations and all reasonable inferences drawn from the evidence provided establish the defendant's liability on each asserted cause of action. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). In other words, “after default ... it remains 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.” Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688 F.Supp.2d 150, 153 (E.D.N.Y. 2010) (internal quotation marks and citations omitted), adopted by, 688 F.Supp.2d 150, 151 (E.D.N.Y. 2010).

III. ANALYSIS

a. The FLSA Applies to Plaintiff's Claims

The FLSA governs minimum wages, maximum hours, and other policies and practices affecting employees and employers. See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 224 (2014). For a plaintiff to establish minimum wage protections under the FLSA, they must provide that: (1) that the defendant employed plaintiff; and (2) that the employment fell under the FLSA's individual or enterprise coverage provisions. See Jacobs v. New York Foundling Hosp., 577 F.3d 93, 96-97 (2d Cir. 2009) (citing Tony & Susan Alamo Found. v. Sec 'y of Labor, 471 U.S. 290, 295 n.8 (1985)); see also 29 U.S.C. § 206(a)(1) (providing for minimum wage for qualifying employees).

i. Plaintiff has established that Defendants were his Employers

The FLSA broadly defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). However, courts in this Circuit have held that “there is ‘no rigid rule for the identification of an FLSA employer.'” Teri v. Spinelli, 980 F.Supp.2d 366, 374-75 (E.D.N.Y. 2013) (citing Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 143 (2d Cir. 2008)). Rather, the touchstone in determining whether an individual is an employer under the FLSA, is whether they have “operational control” over employees, meaning whether an individual exercises control over, and makes decisions that “directly affect the nature or conditions of the employees' employment.” Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir. 2013). Nonetheless, the Second Circuit looks to the non-exclusive factors enumerated in Carter v. Dutchess Community College to determine who qualifies as an “employer” for the purposes of individual liability. See Thompson v. Hyun Suk Park, No. 18-CV-0006, 2020 WL 5822455, at *2 (E.D.N.Y. Sept. 1, 2020), adopted by, No. 18-CV-00006, 2020 WL 5820547 (E.D.N.Y. Sept. 30, 2020) (citing Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)).

These factors include: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Carter, 735 F.2d at 12. (2d Cir. 1984). “Despite these enumerated factors, however, a district court should consider any factor relevant to its assessment of the economic realities of an employer-employee relationship.” Khan v. Nyrene, Inc., No. 18-CV-557, 2020 WL 1931282, at *3 (E.D.N.Y. Mar. 11, 2020), adopted by, No. 18-CV-557, 2020 WL 1929066 (E.D.N.Y. Apr. 21, 2020) (citing Ling Nan Zheng v. Liberty Apparel Co., 355 F.3d 61, 71-72 (2d Cir. 2003)).

Kantor's allegations suffice to establish that Defendants were his employers within the meaning of the FLSA. First, Kantor alleges that Ivanov “hired [him] as a ‘Manager/Practice Administrator,' with the agreed upon salary of approximately $750 per week.” Kantor Decl. ¶ 2. Kantor also asserts that “Ivanov was [Kantor's] supervisor and had supervisory authority over [him].” Compl. ¶ 11. Second, Kantor makes additional allegations of actions taken collectively by the “Defendants” in the Complaint. See Shim v. Millennium Grp., LLC, No. 08-CV-4022, 2010 WL 409949, at *2 (E.D.N.Y. Jan. 27, 2010) (imposing joint and several liability under the FLSA where complaint contained allegations of actions taken collectively by “Defendants”). Specifically, Kantor alleges that both Defendants (1) “had the power to and were responsible for determining the wages to be paid to [Kantor], ” Compl. ¶ 13, (2) “had the power to, and did in fact, establish the terms of [Kantor's] employment, including [his] schedule and rate of pay, ” Id. ¶ 14, and (3) “maintained schedules for their employees regarding the times the Defendants mandated them to work, ”. Id. ¶ 18.

Applying the Carter factors, these allegations sufficiently establish that Ivanov was an employer within the meaning of the FLSA, based on his alleged supervisory authority and control over Kantor's work schedules, conditions, wage rate, and method of payment.^[2] See Carter, 735 F.2d at 12; see also Herman v. RSR Sec. Services Ltd., 172...