Saavedra v. Dom Music Box Inc.

• Jurisdiction: United States,Federal,New York
• Parties: JUAN SEBASTIAN DIAZ SAAVEDRA, individually and on behalf of others similarly situated, Plaintiff, v. DOM MUSIC BOX INC. D/B/A Music Box and EDISON ORTIZ, Defendants.
• Decision Date: 19 January 2024
• Court: U.S. District Court — Eastern District of New York
• Docket Number: 21-CV-6051

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JUAN SEBASTIAN DIAZ SAAVEDRA, individually and on behalf of others similarly situated, Plaintiff,
v.
DOM MUSIC BOX INC. D/B/A Music Box and EDISON ORTIZ, Defendants.

No. 21-CV-6051

United States District Court, E.D. New York

January 19, 2024

VITALIANO, J.

REPORT AND RECOMMENDATION

JOSEPH A. MARUTOLLO, UNITED STATES MAGISTRATE JUDGE:

Plaintiff Juan Sebastian Diaz Saavedra commenced this action on October 29, 2021, alleging that his former employer, Dom Music Box Inc., d/b/a Music Box (“Music Box” or “Corporate Defendant”), and its owner and operator Edison Ortiz (“Defendant Ortiz”) (collectively, “Defendants”) failed to pay him at the applicable minimum wage for work performed in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 203(d) et seq., and New York Labor Law (“NYLL”) §§ 652(1) et seq., failed to provide him with appropriate written notices in violation of NYLL § 195(1), failed to provide him with appropriate wage statements in violation of NYLL § 195(3), and failed to remit timely payments in violation of NYLL § 191. See generally Dkt. No. 1 (“Compl.”).

Currently pending before this Court, on a referral from the Honorable Eric N. Vitaliano, United States District Judge, is Plaintiff's Second Motion for Default Judgment. Dkt. No. 27; see also August 22, 2023 Referral Order.

For the reasons set forth below, the undersigned respectfully recommends that the district judge grant, in part, Plaintiff's motion for default judgment and that judgment be entered against

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Defendants, jointly and severally, in the amount of $181,682.04, which includes: (a) $68,557.50 for unpaid minimum wage; (b) $68,557.50 in liquidated damages; (c) $42,160.04 in prejudgment interest to increase by $16.90 per day until the entry of judgment; (d) post-judgment interest as set forth in 28 U.S.C. § 1961(a); (e) attorneys' fees of $1,930.00; and (f) costs of $477.00. The Court further recommends that Plaintiff should be awarded an automatic increase of 15 percent as provided by New York Labor Law § 198(4).

I. Background

A. Factual Allegations

The following facts are taken from the Complaint, Plaintiff's motion, and the attachments filed in support of Plaintiff's motion; the facts are assumed to be true for the purposes of this motion. See Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *1 (E.D.N.Y. Sept. 29, 2023) (citing Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 188 (2d Cir. 2015)).

Defendant Dom Music Box Inc. is a New York corporation that, through or with Defendant Ortiz, owns, operates, and controls Music Box, a bar located at 40-08 74th Street in Jackson Heights, Queens, New York. Compl. ¶¶ 2, 17-22. At all relevant times, Music Box was “directly engaged in interstate commerce,” used goods and supplies produced outside the State of New York, and-from 2015 through 2021-had a gross annual sales volume “of not less than $500,000.” Id. ¶¶ 28-29, 34. Plaintiff, Mr. Saavedra, was employed as a bartender at the Music Box. Id. ¶¶ 4, 15, 30, 32-33.

Defendants employed Plaintiff as a bartender in 2010. Id. Defendants “possessed substantial control over Plaintiff Diaz's working conditions, and over the policies and practices with respect to [his] employment and compensation[.]” Id. ¶ 23. Specifically, Defendant Ortiz

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controlled the terms and conditions of employment for Music Box employees, including Plaintiff, by “determin[ing] wages and compensation”, establishing employee schedules, “maintain[ing] employee records”, and retaining the authority to hire and fire employees. Id. ¶¶ 19, 27. “Plaintiff Diaz was employed by Defendants from approximately 2010 until on or about October 16, 2019 and from approximately August 2021 until on or about September 12, 2021.” Id. ¶ 32.

At issue in the Complaint are two distinct employment periods: October 2015 until on or about October 16, 2019 and August 2021 until on or about September 12, 2021. Id. ¶¶ 38-39. From October 2015 until on or about October 16, 2019, Plaintiff worked at Music Box five nights per week-from 10:00 p.m. to 4:00 a.m.-totaling thirty hours per week. Id. ¶ 36. From August 2021 until on or about September 12, 2021, Plaintiff “typically worked the same shift” one night per week-totaling six hours per week. Id. ¶ 37. Plaintiff was not responsible for keeping track of this time, and Defendants did not use punch cards (or other similar means) to accurately track or record Plaintiff's time. Id. ¶¶ 44, 54.

Plaintiff alleges that he was not paid for work performed and services rendered during the employment period ranging from October 2015 to October 2019. Id. ¶¶ 38-39, 48-50, 55. Plaintiff further alleges that he was “only paid” $30 for three nights of work during the period of August 2021 to September 2021. Id. ¶ 40. Indeed, while Plaintiff acknowledges that he received tips during each employment period, such tips were included by Defendants “as an offset for wages.” Id. ¶ 42. Defendants did not maintain a record of such tips, did not account for tips in any daily or weekly accounting of Plaintiff's wages, and did not provide Plaintiff with notice that the tips received would be used to offset any earned wages. Id. ¶¶ 42-43, 45, 51-53.

Specifically, Plaintiff alleges that Defendants failed to provide him with any notice with respect to his wages, either in the form of a time-of-hire wage notice, an annual wage notice, or a

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poster displaying state and federal wage-and-hour requirements. Id. ¶¶ 45, 47, 56, 61, 78. Defendants also purportedly failed to provide Plaintiff with accurate wage statements throughout his employment. Id. ¶¶ 46, 60, 81. Plaintiff alleges that Defendants intended “to disguise the actual number of hours . . . worked, and to avoid paying [Plaintiff] properly for his full hours worked,” and failed to remit payment “pursuant to a corporate policy of minimizing labor costs and denying employees compensation.” Id. ¶¶ 48-61.

B. Procedural History

Plaintiff filed the Complaint on October 29, 2021. See Dkt. No. 1. On November 1, 2021, the Clerk of Court issued summonses for all Defendants. Dkt. No. 5. Plaintiff properly served the Corporate Defendant at the office of the Secretary of State of the State of New York on January 18, 2022. Dkt. No. 10. The Corporate Defendant's answer was due on February 8, 2022. Id. Plaintiff properly served Defendant Ortiz on January 25, 2022. Dkt. No. 12. Defendant Ortiz's answer was due on February 15, 2022. Id. No answers or responses have been interposed by Defendants.

On February 22, 2022, the Honorable Ramon E. Reyes, Jr., then-United States Magistrate Judge, ordered, inter alia, that “[n]o later than March 8, 2022, one of the following events must occur [on pain of dismissal for failure to prosecute] (a) the parties must file a stipulation extending the defendants time to answer, (b) the plaintiff must file a motion for the entry of a notation of default or (c) the defendants must file an answer.” See Electronic Order dated February 22, 2022. On February 23, 2022, Plaintiff requested a Certificate of Default from the Clerk of Court. Dkt. No. 13. On March 1, 2022, the Clerk of Court entered a default noting that Defendants have “failed to appear or otherwise defend this action.” Dkt. No. 14. On June 7, 2022, then-Magistrate Judge

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Reyes ordered Plaintiff to move for default judgment “on or before June 21, 2022.” See Electronic Order dated June 7, 2022.

On June 21, 2023, Plaintiff filed a Motion for Default Judgment styled “MOTION for Default Judgment of Defendants Edison Ortiz and Dom Music Box Inc.” (Dkt. No. 16 (capitalization and emphasis in original)) containing (1) a Notice of Motion (Dkt. No. 16); (2) a copy of the Complaint (Dkt. No. 16-2); and (3) supporting affidavits and exhibits (id.). On December 5, 2022, then-Magistrate Judge Reyes issued a Report and Recommendation recommending that Plaintiff's Motion for Default Judgement be denied without prejudice. Dkt. No. 18; see also Diaz Saavedra v. Dom Music Box Inc., No. 21-CV-6051 (ENV) (RER), 2022 WL 20655809, at *1 (E.D.N.Y. Dec. 5, 2022).

In addition to the above referenced procedural deficiencies, the Court identified two additional substantive issues in Plaintiff's motion. Diaz Saavedra, 2022 WL 20655809, at *6 (E.D.N.Y. Dec. 5, 2022). First, the Court noted that “Plaintiff does not supply the Court with sufficient information to calculate damages with respect to his minimum wage claims.” Id. Second, the Court noted that “Plaintiff does not clearly state a wage notice claim, and in any event cannot recover the statutory maximum that he seeks for such a claim.” Id.

On July 7, 2023, United States District Judge Eric N. Vitaliano adopted the Report and Recommendation in its entirety-denying the Motion for Default Judgment without prejudice. See Text Order adopting Report and Recommendations, dated July 7, 2023.

On August 16, 2023, Plaintiff filed a second Motion for Default Judgment against the Defendants containing a (1) a Notice of Motion (Dkt. No. 27); (2) a copy of the Complaint (Dkt. No. 28-1); (3) supporting affidavits and exhibits (Dkt. No. 26, 28, 30); and (4) a Memorandum of Law (Dkt. No. 29). Plaintiff seeks default judgment “jointly and severally” for unpaid minimum

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wages in the amount of $68,557.50; $5,300 in statutory damages for failing to provide a wage notice or a wage statement in violation of NYLL §§ 195(1) and 195(3); liquidated damages in the amount of $68,557.50 for his unpaid minimum wages; prejudgment interest for unpaid minimum wages totaling $34,729.82; and attorneys' fees and costs totaling $3,974.50-amounting in all to $181.119.31. See Dkt. Nos. 28-10, 29.

On August 21, 2023, Plaintiff filed an Affidavit of Service of the “Motion for Default Judgment, with Exhibits (Dkt. No. 28)” and the Memorandum of Law in Support of Plaintiff's Motion. Dkt. No. 30...