Garcia v. Saigon Grill Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------X : : ISIDRO GARCIA,et al., : : Plaintiffs, : 15-CV-9433(VSB) : - against - : AMENDED : OPINION& ORDER : SAIGON GRILL INC., et al., : : Defendants. : : ---------------------------------------------------------X Appearances: Catalina Sojo, Khalil Patrick Huey CSM Legal P.C. New York, NY Colin James Mulholland Law Offices of Colin Mulholland Astoria, NY Gennadiy Naydenskiy Naydenskiy Law Firm, LLC Spotswood, NJ Shawn Raymond Clark Phillips & Associates, PLLC New York, NY Counsels for Plaintiff Louis F. Chisari,William Kevin Joseph Marcote & Associates, P.C. Hicksville, NY Counsel for Defendant VERNON S. BRODERICK, United States District Judge: Plaintiffs Isidro Garcia, Eliazar Valentin, and Fermin Quiche bring this actionagainst Defendants Saigon Market LLC d/b/a Saigon Market (“SaigonMarket”), Hau Nguyen, and Johnathan Nguyenseeking unpaid minimum and overtime wages under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 , et. seq., and the New York Labor Law (“NYLL” or “N.Y. Lab. L.”), Art. 6 § 190, et. seq., and Art. 19, § 650, et seq. On September 24, 2019, I granted summary judgment in favor of Plaintiffs on their minimum wage and overtime claims under the FLSA and NYLL, and granted summary judgment in favor of Plaintiffs on their claims for Defendants’ failure to provide adequate annual notice of wages andproper weekly wage statements under NYLL. (Doc. 100(“O&O”), at 29.) I granted summary judgment in favor of Defendants on Plaintiffs’ claims for spread of hours violations and for therecovery of equipment costs, and otherwise denied the parties’ respective motions for summary judgment. (Id.) I referred the case to Magistrate Judge Sarah L.Cave for an inquest to determinethe amount of damages to be awarded to Plaintiffs. (Doc. 101.) Before me is the June 26, 2020Report and Recommendation of Magistrate Judge Cave, which recommends: (1) Awarding Plaintiff Garcia $39,684.97 in damages, comprised of: (i) $9,105.06 in unpaid minimum wages; (ii) $3,702.33 in unpaid overtime wages; (iii) $12,807.39 in liquidated damages; (iv) $6,570.19 in prejudgment interest; and (v) $7,500 in statutory damages; (2) Awarding Plaintiff Valentin $6,933.82 in damages, comprised of: (i) $2,112.00 in unpaid minimum wages; (ii) $204.45 in unpaid overtime wages; (iii) $2,316.45 in liquidated damages; (iv) $1,300.92 in prejudgment interest; and (v) $1,000 in statutory damages; (3) Awarding Plaintiff Quiche $17,314.73 in damages, comprised of: (i) $5,933.04 in unpaid minimum wages; (ii) $111.57 in unpaid overtime wages; (iii) $6,044.61 in liquidated damages; (iv) $2,725.51 in prejudgment interest; and(v) $2,500 in statutory damages; and (4) Awarding Plaintiff attorneys’ fees in the amount of $19,531.75 and costs in the amount of $465.00. (Doc. 109(“R&R” or “Report”), at 2.) On July 24, 2020, Defendants timely filed written objections to the Report. (Doc. 115 (“Objections”).)1 On July 27, 2020, Plaintiffs filed a responseto the objections. (Doc. 114 (“Response”).) I have reviewed the Report, Defendants’ Objections, and Plaintiffs’Response. For the reasons stated herein, I overrule the objections,modify Judge Cave’s Report in part as set forth below, and otherwise adopt the Report. Legal Standard 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);see alsoFed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”). “[T]he statutory language of section 636(b)(1) affords the district court broad latitude in considering the magistrate’s recommendation.” Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). When a party submits a timely, specific objection, a district court reviews de novo the parts of the report and recommendation to which the party objected. 28 U.S.C. § 636 (b)(1); see alsoFed. R. Civ. P. 72(b)(3). With regard to a report and recommendationthat is not objected 1Defendants first filed their objections at Doc. 113, but Defendants refiled at Doc. 115 due to a filing error. to, or the unobjected-to portions of areport and recommendation, a district court reviews the report and recommendation, or the unobjected-to portion thereof, for clear error. DiPilato v. 7Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009); Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Wilds v. United Parcel Serv.,Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). Further, “when a party makes only conclusory or general objections, or simply reiterates [the] original arguments” it made before the magistrate judge, the Court will review the Report strictly for clear error. Pearson–Fraser v. Bell Atl., No. 01 Civ. 2343(WK), 2003 WL 43367 , at *1 (S.D.N.Y.Jan. 6, 2003)(internal quotation marks omitted). “Even where exercising de novo review, a district court ‘need not . . .specifically articulate its reasons for rejecting a party’s objections or for adopting a magistrate judge’s report and recommendation in its entirety.’” Bush v. Colvin, 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689 , at *4 (S.D.N.Y. Apr. 26, 2017) (alteration in original)(quoting Morris v. Local 804, Int’l Bhd. of Teamsters, 167 F. App’x 230, 232 (2d Cir. 2006) (summary order)). Discussion The factual and procedural history is thoroughly set out in the Report and in myOpinion & Order deciding the parties’ motions for summary judgment, familiarity with which is assumed. Defendants only assert one objection. Defendants argue that the damages for Plaintiff Garcia should be reduced to the extent that some of Garcia’s damages were incurred more than two years prior to the filing of the action. (Objections 1–2.) Defendants are incorrect. In my Opinion & Order of September 24, 2019, I said in conclusion, [S]ummary judgment is granted in favor of Plaintiffs with respect to liability on Plaintiffs’ minimum wage and overtime claims under the FLSA, 29 U.S.C. §§ 206 (a) and207(a), and under N.Y. Lab. L. § 652 (1) and 12 N.Y.C.R.R. § 146–1.4; however, because I find that Defendants’ violations were not willful, Plaintiffs’ FLSA claims are subject to a two-year statute of limitations. (O&O 29.) Judge Cave paraphrased this holding as, “Defendants are liable to Plaintiffs on their minimum wage and overtime claims under FLSAand the NYLL for the period two years prior to the filing of this action.” (R&R 2.) Nevertheless, Judge Cave awarded minimum wage, overtime,and liquidated damages for violations that accrued more than two years before Plaintiffs filed this action. (See id.9, 11, 12–13.)2 The FLSA’s statute of limitations istwo years, unless the violations were willful, in which case the statute of limitations is three years. 29 U.S.C. § 255 (a). As previously noted, I found that Defendants’ violations were not willful, and thus the applicable FLSAstatute of limitations is two years. (O&O 25–29.) However,NYLL has a statute of limitations of six years. N.Y. Lab. Law § 663 (3) (McKinney). Defendants do not mention or address NYLL’s six-year statute of limitations in their Objections. (See generally Objections.) Plaintiffs brought their minimum wage and overtime claims pursuant to both FLSA and NYLL. “Plaintiffs may not recover under both NYLL and the FLSA for the same injury. . . . [and] will recover under the statute that provides for the greatest relief,” which in this case is NYLL. Maldonado v. La Nueva Rampa, Inc.,No. 10 Civ. 8195(LLS)(JLC), 2012 WL 1669341 , at *5 (S.D.N.Y. May 14, 2012) (internal citation omitted). Courts in this Circuit routinely apply NYLL’s six-year statute of limitations when plaintiffs bringminimum wage and overtime claims pursuant to both laws. See, e.g.,Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481 , 498 n.7 (S.D.N.Y. 2017), aff’d, 752 F. App’x 33 (2d Cir. 2018); Pineda v. Masonry Const., Inc., 831 F. Supp. 2d 666, 676 (S.D.N.Y. 2011); Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc.,No. 08 CIV. 3725 DC, 2010 WL 4159391 , at *3 (S.D.N.Y. Sept. 30, 2010); Rivera v. Harvest Bakery Inc.,CV 13-00691 2Notably, in response to Plaintiffs’ damages submission, Defendants filed their own revised minimum wage and overtime damages calculations for each Plaintiff, which Judge Cave found were correct and adopted in full. (R&R 9, 11 (citing Docs. 108-1, 108-2, 108-3).) In other words, Defendants now object that Judge Cave awarded Plaintiffs the exact amount in minimum wage and overtime damages that Defendants previously proposed in their revised calculations, which included those damages incurred more than two years prior to the filing of the action. (ADS)(AYS), 2018 WL 4214337 , at *8 (E.D.N.Y. Aug.17, 2018), report and recommendation adopted,2:13-cv-00691 (ADS)(AYS), 2018 WL 4211301 (E.D.N.Y. Sept. 4, 2018); see also Serebryakov v. Golden Touch Transp.of N.Y., Inc., 181 F. Supp. 3d 169, 176 (E.D.N.Y. 2016) (on conditional certification, granting plaintiff’s request to provide notice to potential opt-in plaintiffs with claims “going back six years” where plaintiffs sought relief under both the FLSA and NYLL). NYLL’s six-year statute of limitations governs Plaintiffs’ NYLL claims, and to the extentthat the Report says or suggests otherwise, those portions of the Report are rejected. Plaintiffs filed a two-page, double-spaced response to Defendants’ Objections, citing NYLL’s statute of limitations. (Response 1.) Plaintiffs’ Response is otherwise devoid of any law. However, Plaintiffs correctly argue, “New York Labor Law clearly and unambiguously calls for a six year statute of limitations for minimum wage, overtime, and liquidated damages claims.” (Id.) Plaintiffs also “request[] that the award of attorney [sic] fees be increased by $280 for 1.4 hours for the undersigned’s research and opposition to Defendants [sic] ridiculous objection to Judge Cave’s Report and Recommendation.” (Id.at 2.) The request for attorneys’ fees is improper. “Applications for awards of fees must be documented by time records.” Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir. 2009). Time records must be “contemporaneously created” and should “specify, for each attorney, the date, the hours expended, and the nature of the work done.” Id. (internal quotation marks omitted); see also N.Y.State Ass’n for Retarded Child., Inc. v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983) (holding that it is “a mandatory requirement” for “any attorney . . . who applies for court-ordered compensation in this Circuit” to “document the application with contemporaneous time records”). Plaintiffs provided no such documentation and nolegalbasis for their request, and therefore their request for attorneys’ fees is denied.3 Since the parties have not objected to the other portions of the Report, I review Judge Cave’s remaining determinations for clear error, and find one. Judge Cave’s prejudgment interestcalculations require an update. As Judge Cave correctly wrote, New York law provides for prejudgment interest at a rate of nine percent per year. (R&R 13 (citing N.Y.C.P.L.R. § 5004).) When damages accrued “at various times,” interest may be computed “upon all of the damages from a single reasonable intermediate date.” (Id. at 13–14(citing N.Y.C.P.L.R. § 5001).) “To determine the appropriate midpoint date, courts identify ‘the median date between the earliest ascertainable date the cause of action existed and the date the action was filed or last date the cause of action existed.’” (Id. at 14 (quoting Yuquilema v. Manhattan’s Hero Corp., No. 13 Civ. 461 (WHP) (JLC), 2014 WL 4207106 , at *12 (S.D.N.Y. Aug. 26, 2014).) Interest is calculated from that midpoint date “until and including the date judgment is entered.” (Id. (quoting Maldonado, 2012 WL 1669341 , at *11.) However, Judge Cave erred by limiting calculation of each Plaintiff’smidpoint date according to FLSA’s “two-year statute of limitations,”and bysetting the judgment date as the date the Report was issued, rather than the date judgment will be entered. (Id.) See, e.g.,Gao v. Jian Song Shi, No. 18 CV 2708 (ARR)(LB), 2021 WL 1949275 , at *16 (E.D.N.Y. Apr. 30, 2021), report and recommendation adopted sub nom. Bin Gao v. ABC Corp., No. 18CV2708ARRLB, 2021 WL 1946322 (E.D.N.Y. May 15, 2021) (“This [prejudgment interest award] amount will increase . . . each day until final judgment is entered.”). 3Moreover, upon a legitimate and appropriately documented fee request, the court will “exclude excessive, redundant or otherwise unnecessary hours.” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). Iam skeptical that it would take almost 90 minutestoresearch and draft a two-page, double-spaced letter that contains no legal authority. I have recalculated the prejudgment interest accordingly: (1) Because Plaintiff Garcia began working for Defendants in October 2013, (see R&R 3),4 “the median date between the earliest ascertainable date the cause of action existed and the date the action was filed” was November 7, 2014. Since 7.46years have passed since November 7, 2014, Plaintiff Garcia’s prejudgment interest accrued through the date of this Order is $8,598.88(($9,105.06 + $3,702.33) x 0.09 x 7.46). (2) Because Plaintiff Valentinbegan working for Defendants on January 20, 2014, (see R&R 3),“the median date between the earliest ascertainable date the cause of action existed and the date the action was filed” was December 26, 2014. Since 7.32years have passed since December 26, 2014, Plaintiff Valentin’s prejudgment interest accrued through the date of this Order is $1,526.08(($2,112 + $204.45) x 0.09 x 7.32). (3) Because Plaintiff Quiche began working for Defendants onDecember 24, 2014, (see R&R 3),“the median date between the earliest ascertainable date the cause of action existed and the date the action was filed” was June 13, 2015. Since 6.86years have passed since June 13, 2015,Plaintiff Quiche’s prejudgment interest accrued through the date of this Orderis $3,731.94(($5,933.04 + $111.57) x 0.09 x 6.86). Conclusion This Amended Opinion and Order shall supersede the Court’s prior Opinion and Order at Docket Entry 122. For the reasons stated above, I hereby ADOPTIN PART and MODIFY IN 4Since the parties do not provide an exact date of Plaintiff Garcia’s employment as a delivery worker, I calculate his prejudgment interest from October 15, 2013. (See O&O 3 n.4 (“Plaintiffs state in their Complaint that, prior to October 2013, Garcia worked for Defendants as a busboy and was properly compensated for his hours worked. Thus, Garcia only challenges hiscompensation during the time he was employed as a delivery worker.” (internal quotation marks and citation omitted)).) PART Magistrate Judge Cave’s Report. Accordingly, (1) Plaintiff Garcia is awarded $39,684.97 in damages, comprised of: (i) $9,105.06 in unpaid minimum wages, (ii) $3,702.33 in unpaid overtime wages, (iii) $12,807.39 in liquidated damages, (iv) $8,598.88 in prejudgment interest, and (v) $7,500 in statutory damages; (2) Plaintiff Valentin is awarded $6,933.82 in damages, comprised of: (i) $2,112.00 in unpaid minimum wages, (ii) $204.45 in unpaid overtime wages, (iii) $2,316.45 in liquidated damages, (iv) $1,526.08 in prejudgment interest, and (v) $1,000 in statutory damages; (3) Plaintiff Quiche is awarded $17,314.73 in damages, comprised of: (i) $5,933.04 in unpaid minimum wages, (ii) $111.57 in unpaid overtime wages, (iii) $6,044.61 in liquidated damages, (iv) $3,731.94 in prejudgment interest, and (v) $2,500 in statutory damages; and (4) Plaintiffs are awarded attorneys’ fees in the amount of $19,531.75 and costs in the amount of $465.00. The Clerk of Court is respectfully directed to (1) terminate any open motions, (2) enter judgment in accordance with this Order, (3) with post-judgment interest pursuant to 28 U.S.C. § 1961 , and (4) close this case. SO ORDERED. Dated: April 25, 2022 New York, New York if % len) LAAN VION eg Vernon S. Broderick United States District Judge