Mondragon v. Keff
| Decision Date | 31 May 2019 |
| Docket Number | 15-CV-2529 (JPO) (BCM) |
| Parties | ALEXIS MONDRAGON, Plaintiff, v. LEONARD KEFF, et al. Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION TO THE HON. J. PAUL OETKEN
Plaintiff Alexis Mondragon filed this action against Keff Enterprises, LLC (Keff Enterprises), Keff NYC, Inc. (Keff NYC), Leonard Keff (Keff), and Eric Raphael Schamma a/k/a Eric "Ricky" Schiffer (Schiffer) on April 2, 2015, seeking payment of unpaid overtime wages and related relief under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the New York Labor Law (NYLL), N.Y. Labor Law § 190 et seq., all arising out of her work as a Finishing Department Supervisor at defendants' knitting factory. Compl. (Dkt. No. 1) ¶¶ 1-3. Plaintiff alleges that she worked at the factory from September 2012 to December 2013, at a stated rate of $20 per hour, but that throughout her employment defendants either underpaid her (by, among other things, failing to pay her for her overtime hours) or did not pay her at all. Id. ¶¶ 1, 36-45. By order dated January 12, 2016, Your Honor granted plaintiff's motion for default judgment and referred the matter to the Hon. Frank Maas, United States Magistrate Judge, for a damages inquest. (Dkt. No. 21.) The inquest was later reassigned to me.
For the reasons that follow, I respectfully recommend that plaintiff be awarded damages against all defendants in the amount of $30,020, comprising (a) $12,510 in unpaid overtime wages (at the rate of $30 per hour), (b) $12,510 in liquidated damages under state law, and (c) $5,000 in statutory damages under state law. In addition, I recommend that prejudgment interest be awarded in the amount of $6,854.48, plus additional interest at the statutory rate of 9% from the date of this Report and Recommendation (Report) to the date of entry of final judgment. Attorney's fees and costs should also be awarded, in the amounts of $7,927.50 and $556, respectively.
Plaintiff alleges that Keff Enterprises and Keff NYC are New York corporations with their principal place of business at 142 West 36th Street in New York City. Compl. ¶¶ 9-13.1 During the time period at issue in this action, both entities participated in interstate commerce and had gross annual revenues greater than $500,000. Id. ¶¶ 10-11, 14-15. Keff was an owner and/or shareholder of Keff Enterprises and "actively participate[d] in the business of the corporation." Compl. ¶ 19. Keff hired and fired workers, directed their daily activities, and otherwise "exercised substantial control over the functions of the company's employees," including Mondragon, who "considered him to be her direct supervisor as well as her boss." Id. ¶ 20-21. Schiffer was the Chief Executive Officer of Keff NYC. Id. ¶ 24-25. He too "actively participated in the business of the corporation," managed certain aspects of its operations, and "had the authority to hire, terminate, discipline, set rates of pay, and schedule workers including Plaintiff." Id. ¶ 26.
Plaintiff's remaining factual allegations run against all four defendants jointly. She worked as a Finishing Department Supervisor at "[d]efendants' knitting factory" from September 2012 through December 2013, at a promised rate of pay of $20 per hour. Compl. ¶¶ 31-33, 37. Her primary responsibilities were to "manage flow of production on factory floor, make sure shipments went out on time, check quality of production, [and] train hand finisher[s] and menders." Id. ¶ 33. Plaintiff had "no authority to hire, terminate, discipline, schedule, or set rates of pay for any other employee of [d]efendants." Id. ¶ 34.
Defendants hired plaintiff in September 2012. Compl. ¶ 36. After completing three weeks of training, during which she did not receive any pay, id., plaintiff began working weekdays at the factory on West 36th Street. Id. ¶ 37. Her schedule required her to work from 9:00 a.m. to 6:00 p.m., Monday through Friday, with a half-hour lunch break, id.; however, plaintiff "almost always stayed past 6:00 p.m.," id., and her work hours "varied from 40 to over 52 hours per week." Id. ¶ 38. Plaintiff clocked in and out before and after her shifts, but she does not have access to those records. Id. ¶ 39.
Notwithstanding defendants' promises, plaintiff was paid "only $200-$400" (for the weeks in which she was paid at all), "regardless of the hours she worked." Compl. ¶ 43. She rarely received paystubs with her weekly wages. Id. ¶¶ 42-43. When she did, the stubs "accurately noted that Plaintiff's rate of pay was $20 per hour," but inaccurately "provided that she worked only 40 hours, when in truth plaintiff always worked more than 40 hours." Id. ¶ 41. For the weeks in which plaintiff worked more than 40 hours, defendants "neglected to pay her overtime premiums at the rate of 1.5 times her regular rate of pay" for each overtime hour. Id. ¶ 44. Similarly, defendants never paid any spread-of-hours compensation. Compl. ¶¶ 55-56. Forthe last six months of her employment (May 2013 through December 2013), plaintiff did not receive any wages at all. Id. ¶ 45.
Plaintiff "complained about these underpayments," and even joined co-workers in a walkout, Compl. ¶ 1, before returning to work "upon assurances of future payment." Id. Defendants "fraudulently induced" her to "continue showing up to work by explaining that the business was short of money and by promising to pay her when they received payment from a large account." Id. ¶ 46.
Plaintiff filed her complaint on April 2, 2015, alleging four claims against all defendants: (1) failure to pay overtime compensation as required by the FLSA, 29 U.S.C. § 207(a); (2) failure to pay overtime compensation as required by the NYLL and related regulations, see N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; (3) failure to pay spread-of-hours compensation as required by the NYLL and related regulations, see N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4(a); and (4) failure to provide a wage notice at the outset of her employment, and wage statements with each payment of wages, as required by the Wage Theft Prevention Act, see NYLL § 195(1), 195(3). Compl. ¶¶ 57-77. On the same date, plaintiff filed a Statement of Relatedness (Dkt. No. 2), asserting that this action was related to Tackie v. Keff Enterprises, LLC, No. 14-CV-2074 (JPO).2
Plaintiff served all four defendants between June 18 and July 10, 2015, as follows: (i) Schiffer, by leaving a copy of the summons and complaint with his co-tenant on June 18 and by mail on June 19 (Dkt. No. 4); (ii) Keff, by leaving copies at his residence on June 22 and mailing copies to him on the same date (Dkt. No. 5)3; and (iii) the two corporate defendants, via the Office of the New York Secretary of State, on July 10, 2015. (Dkt. Nos. 6-7.) The defendants uniformly failed to respond.
On September 9, 2015, plaintiff requested and was issued a certificate of default against all defendants. (Dkt. No. 10.) On November 2, 2015, Plaintiff moved for the entry of a default judgment. (Dkt. No. 15.) On January 19, 2016, Your Honor directed entry of a default judgment in favor of plaintiff and against all defendants. (Dkt. No. 21.)
On March 28, 2016, plaintiff filed her Proposed Findings of Fact and Conclusions of Law (Prop. Findings) (Dkt. No. 27), along with: (i) a damages chart (Chart) (Dkt. No. 27-1); (ii) plaintiff's supporting affidavit (Pl. Aff.) (Dkt. No. 27-2); (iii) four paystubs, each corresponding to a one-week period of plaintiff's employment (Pl. Paystubs) (Dkt. No. 27-3); (iv) a declaration from plaintiff's attorney Eli Freedberg in support of the attorney's fee request (Freedberg Decl.) (Dkt. No. 27-4); and (v) Freedberg's "invoice" detailing the work he did on the case (Freedberg Inv.) (Dkt. No. 27-5). On the same date, plaintiff served defendants with copies of the Proposed Findings by first class mail at the individual defendants' last known residential addresses and at the corporate defendants' last known corporate address (142 West 36th Street, New York, NY, 10018). See Aff. of Service filed Mar. 28, 2016 (Dkt. No. 28). Once again, defendants failed to respond.
Plaintiff seeks a damages award (exclusive of attorney's fees and costs) of $99,442.95, including: (i) $15,013.88 in minimum and overtime wages under the FLSA and NYLL (calculated at the rate of $7.25 per hour for plaintiff's regular hours and $10.88 for her overtime hours); (ii) $42,296.13 in breach of contract damages (calculated at the rate of $20 per hour); (iii) $15,013.88 in FLSA liquidated damages; (iv) $16,533.38 in NYLL liquidated damages; (v) $1,522.50 in spread of hours damages; (vi) $5,000 in NYLL statutory damages; and (vii) $4,060.20 in prejudgment interest "on the NYLL claims." Prop. Findings at 16.4 In addition, plaintiff seeks $19,808.50 in attorney's fees and costs, representing 45.3 hours worked at an hourly rate of $425. Freedberg Decl. ¶¶ 12, 14, 16.
Since no party has requested a hearing on the issue of damages, and since defendants have not submitted any written materials, I have conducted the inquest based solely upon the materials submitted by plaintiff. See, e.g., Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (); Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53 (2d Cir. 1993) (quoting Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991)) ("Rule 55(b)(2) of the Federal Rules of Civil Procedure . . . 'allows but does not require the district judge to conduct a hearing.'").
Following a default, the Court must accept all well-pleaded factual allegations in the complaint as true, except...
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