Villanueva v. 179 Third Ave. Rest Inc.

• Citation: 500 F.Supp.3d 219
• Decision Date: 03 September 2020
• Docket Number: 16 Civ. 8782 (AJN) (RWL)
• Parties: Raul Saldana VILLANUEVA, et al., Plaintiff(s), v. 179 THIRD AVENUE REST INC. (d/b/a Mumbles), 603 Second Ave Corp. (d/b/a/ Benjamin's Restaurant & Bar), David Feldman, Michael Feldman, Martin Markowitz, Robin Grossman, Joseph Press, and Robert Press, Defendants.
• Court: U.S. District Court — Southern District of New York

500 F.Supp.3d 219

Raul Saldana VILLANUEVA, et al., Plaintiff(s),

v.179 THIRD AVENUE REST INC. (d/b/a Mumbles), 603 Second Ave Corp. (d/b/a/ Benjamin's Restaurant & Bar), David Feldman, Michael Feldman, Martin Markowitz, Robin Grossman, Joseph Press, and Robert Press, Defendants.

16 Civ. 8782 (AJN) (RWL)

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

Signed September 3, 2020

Jesse S. Barton, Michael Antonio Faillace, Michael Faillace & Associates, P.C., Daniel Alan Tannenbaum, New York, NY, for Plaintiff(s) Raul Saldana Villanueva, Andres Zamora Ramirez.

Michael Antonio Faillace, Michael Faillace & Associates, P.C., Daniel Alan Tannenbaum, New York, NY, for Plaintiff(s) Jose Patricio, Miguel Cuautle, Efrain Rosas, Francisco Rosendo, Zeferino Baltazar, Jesus Herrera, Bladimir Vazquez, Esteban Herrera, Dionisio Florencio, Luis fernando Tlaltepec, Julio Alvarez, George Sanchez Galindo, Bladimir Vasquez Solis, Dionisio Florencio Perez Marana, Luis Fernando Tlaltepec-Perez, Miguel Cuautle Ocelotl, Julio Alvarez Vargas, Jose Patricio Sanchez Rosas.

REPORT AND RECOMMENDATION TO HON. ALISON J. NATHAN, USDJ: DAMAGES INQUEST

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiffs, a group of fourteen former restaurant employees, seek compensatory damages, liquidated damages, statutory penalties, costs, and attorneys’ fees from 179 Third Avenue Rest Inc. and 603 Second Ave Corp. (collectively "Defendants") for violations of the Fair Labor Standards Act (the "FLSA") and New York Labor Law (the "NYLL"). Defendants defaulted on the issue of liability, and the matter has been referred to the undersigned for an inquest on Plaintiffs’ damages. Following a review of Plaintiffs’ submissions and the record in this matter, I recommend awarding Plaintiffs damages, pre-judgment interest, statutory penalties, attorneys’ fees and costs as set forth below.

Procedural Background

This action commenced with filing of the Complaint on November 14, 2016. (Dkt. 2.) Affidavits of service of process on all Defendants were filed on January 4, 2017. (Dkt. 19-25.) An amended complaint was filed on September 11, 2017. (Dkt. 65, the "Amended Complaint".) Plaintiff filed affidavits of service of the Amended Complaint only for the two corporate Defendants. (Dkt. 100, 101.) The only Defendant who appeared in the action was David Feldman, with whom the Plaintiffs entered into a settlement agreement. (Dkt. 102, 111.) On July 19, 2018, the Clerk of Court entered default by the two corporate Defendants. (Dkt. 106, 107.) Plaintiffs moved for default judgment against the corporate Defendants on February 22, 2019. (Dkt. 120, 121.) A few days later, Plaintiffs filed proof of service of the motion for default judgment. (Dkt. 123.) On September 30, 2019, the Court granted default judgment in favor of Plaintiffs against the corporate Defendants (Dkt. 127 ), after which the matter was referred to the undersigned for an inquest on damages. (Dkt. 128.)

This Court then issued a scheduling order for inquest submissions. (Dkt. 129.) Plaintiffs filed Proposed Findings of Fact and Conclusions of Law ("FFCL") on January 2, 2020 along with supporting sworn declarations from each Plaintiff and Plaintiff's Counsel.¹ (Dkt. 134, 135.) Counsel's declaration included a detailed spreadsheet of damages calculations (Dkt. 135-13, the "Damages Schedule"). Defendants did not file a response. Following a delay due to the COVID-19 pandemic, the Court held an inquest hearing by remote video-teleconference on July 21 and 23, 2020.²

Following the hearing, the Court asked Plaintiffs to submit a revised damages schedule making certain revisions consistent with the analysis below. Plaintiffs submitted multiple revised damages schedules, each of which contained errors and required further revision. On August 5, 2020, Plaintiffs submitted their most recent revised damages schedule (Dkt. 149-2, the "Revised Damages Schedule").

Factual Background

Because liability has already been adjudicated, the Court will only briefly recount the relevant factual background.³

Plaintiffs worked for Defendants in a variety of positions at either one of two restaurants: Mumbles, located at 179 Third Avenue ("Mumbles"), and Benjamin's Restaurant & Bar ("Benjamin's"), located at 603 Second Avenue. Defendants engaged in certain practices common to most or all of the Plaintiffs. For instance, Defendants paid each Plaintiff on a semi-monthly basis in a combination of checks and cash. Defendants did not provide Plaintiffs with any written information about minimum wage and overtime laws, nor did they post or maintain any notice with such information. Defendants also did not provide Plaintiffs with documentation reflecting the hours they worked, their rate of pay, overtime, or deductions or credits made to their pay. For those Plaintiffs who received tips, Defendants did not notify Plaintiffs that the tips were included in and served as an offset to their wages.⁴ Each Plaintiff asserts that Defendants never granted them a meal break or rest period for all or some of the relevant time period. Each Plaintiff states that they did not receive time-and-a-half overtime pay for hours worked in excess of 40 hours per week. And, each Plaintiff states that their wages "did not vary regardless of how many additional hours [they] worked in a week." (See, e.g., Villanueva Decl. ¶ 20.)

The positions, dates of employment, hours worked, and pay of each Plaintiff follow.⁵ Unless otherwise indicated, the Court found the Plaintiff's declaration generally supported by his hearing testimony.

1. Raul Saldana Villanueva ("Villanueva") was employed at Mumbles from 2007 until January 25, 2016. (Villanueva Decl. ¶ 7.) He primarily worked as a delivery person, but spent a "significant" (but unspecified) portion of his workday performing non-tipped duties such as cleaning and stocking. (Id. ¶¶ 8-9.) Villanueva's sworn statement of the hours he worked is internally inconsistent. Villanueva first claims that he "regularly worked in excess of 40 hours per week," but in the very next paragraph says that from 2010 to January 25, 2016, he worked only 33 hours per week.⁶ (Id. ¶¶ 13-14.) Villanueva's pay, paid semi-monthly, changed over time: $4.00 per hour from November 2010 to January 2013; $5.00 per hour from January 2013 to December 2015; and $7.50 per hour from January 1, 2016 to January 25, 2016. (Id. ¶¶ 17-19.) Defendants required Villanueva to work an additional 30 minutes past his scheduled departure time every day but did not pay him any additional compensation. (Id. ¶ 20.)

2. Andres Zamora Ramirez ("Ramirez") was employed at Mumbles from 2007 until January 25, 2016. (Zamora Decl. ¶ 7.) At Mumbles, Ramirez typically worked 62 to 64 hours per week. (Id. ¶ 13.) From January 2016 to October 16, 2016, Ramirez worked at Benjamin's, typically 68 hours per week, consisting of three days a week from 7:00 a.m. until 5:00 p.m., two days a week from 7:00 a.m. until about 9:00 p.m., and one day a week from 12:00 p.m. until about 10:00 p.m. (Id. ¶ 14.) Throughout his employment with Defendants, Ramirez prepared food and made deliveries. (Id. ¶ 8.) At both restaurants, Ramirez was paid $10.00 per hour, on a semi-monthly basis. (Id. ¶ 16.)

3. Julio Alvarez Vargas ("Vargas") was employed as a line cook at Mumbles from approximately May 2001 to January 5, 2016. (Vargas Decl. ¶¶ 7-8.) From approximately December 2010 to April 2015, Vargas worked 66 to 72 hours per week consisting of working from 7:00 a.m. until 6:00 or 7:00 p.m. Tuesdays through Sundays. (Id. ¶ 13.) From April 2015 to January 25, 2016 he worked 71 to 76 hours per week, consisting of 7:00 a.m. to 6:00 or 7:00 p.m. on Tuesday through Sunday, with the exception of Thursday on which he put in longer days, working from 7:00 a.m. until 11:00 p.m. (Id. ¶ 14.) Vargas's pay, distributed on a semi-monthly basis, varied over time: $11.00 per hour from December 2010 to April 2012; $13.50 per hour from May 2012 to January 2014; $14.00 per hour from February 2014 to March 2015; and $11.00 per hour from April 2015 until January 25, 2016. (Id. ¶¶ 16-19.) Defendants required Vargas to work one to two hours past his regular schedule on Fridays, Saturdays and Sundays, without paying him "any additional compensation."⁷ (Id. ¶ 20.)

4. Efrain Rosas ("Rosas") worked as a dishwasher at Benjamin's from 1997 to October 2016. (Rosas Decl. ¶¶ 7-8.) From January 2011 until October 2016, Rosas typically worked 8:00 a.m. to 6:30 p.m. six days a week for a total of 63 hours. (Id. ¶ 13.) Defendants paid Rosas on a semi-monthly basis at the following hourly rates: $8.50 per hour from January 2011 to June 2013; $9.00 per hour from June 2013 to May 2015; and $10.00 per hour from May 2015 to October 2016. (Id. ¶¶ 15-17.) Defendants required Rosas to work 30 minutes beyond his scheduled departure time six days a week but did not pay him for the additional time worked. (Id. ¶ 18.) Whereas some of the other Plaintiffs claim they never received a meal break or rest period for their entire tenures at Defendants’ restaurants, Rosas asserts that he never received such a break only prior to June 2013. (Id. ¶ 19.)

5. Francisco Rosendo ("Rosendo") worked as a cook at Benjamin's from June 2004 to October 2016. (Rosendo Decl. ¶¶ 7-8.) From January 2011 to October 2016, Rosendo worked from 11:00 a.m. to 9:00 p.m. five days a week, and from 11:00 a.m. until about 10:00 p.m. one day a week, for a typical total of 61 hours per week. (Id. ¶ 13.) Rosendo received a fixed weekly salary of $712.50 paid on a semi-monthly basis. (Id. ¶ 15.) Defendants required Rosendo to work one hour past his scheduled departure time on Fridays but did not pay him additional compensation for doing so. (Id. ¶ 16.)

6. George Sanchez Galindo ("Galindo") worked at Benjamin's from October 2012 to October 2016. (Sanchez Decl. ¶ 7.) He served in several capacities, including as phone operator, food runner, busboy and delivery worker. (Id. ¶ 8.) Galindo asserts, however,...