Fermin v. Las Delicias Peruanas Restaurant, Inc.
2015 U.S. Dist. LEXIS 34365
E.D.N.Y2015Background
- Plaintiffs Francisco Fermín, Emilio Moreno, and Andres Del Rosario sued Las Delicias Peruanas Restaurant, Inc. and individual owners/managers Bertha Marconi and Nicolas De Pierola under the FLSA and NYLL for unpaid minimum wages, overtime, spread-of-hours pay, misappropriated tips (Fermín), liquidated damages, pre-judgment interest, and attorneys’ fees. Defendants did not answer; clerk entered default.
- Magistrate Judge Scanlon recommended granting default judgment and computing individual damages; District Judge Mauskopf reviewed the R&R for clear error and adopted it in full.
- The court found plaintiffs were non-exempt employees, Las Delicias an enterprise engaged in interstate commerce, and the individual defendants joint employers (Carter factors). Default established liability; damages remain for calculation.
- The court rejected any employer tip credit because Fermín alleged tip misappropriation and tip-pooling with non‑tip employees/managers and lack of notice; awarded Fermín misappropriated tips for the period he worked as a waiter (through 10/31/2011).
- The court awarded (jointly and severally) $428,008.40 total: $289,605.23 to Fermín; $59,343.64 to Moreno; $70,388.53 to Del Rosario; and $8,671.00 in attorneys’ fees and costs; post‑judgment interest per 28 U.S.C. §1961 ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper service and default | Service was proper; defendants received notice and defaulted | (No response) | Service found proper under NY BCL and CPLR; default entered and willfulness inferred |
| Employer status (individuals) | Marconi and De Pierola exercised hiring, firing, pay, scheduling and supervision | (No response) | Individual defendants are joint employers under FLSA/NYLL (Carter factors satisfied) |
| Tip credit / tip misappropriation (Fermín) | Fermín alleges weekly tip withholding, tip‑pooling with non‑tip workers and managers, and no tip‑credit notice | (No response) | Tip credit unavailable; defendants liable under NYLL to reimburse misappropriated tips for period Fermín worked as waiter (through 10/31/2011) |
| Damages (wages, overtime, spread pay, liquidated damages, interest, fees) | Plaintiffs provided affidavits, schedules, and calculations to prove hours and unpaid wages; seek liquidated damages and interest | (No response) | Default admits liability; evidence sufficient to calculate damages with reasonable certainty. Awarded unpaid wages, overtime, spread‑of‑hours, liquidated damages (FLSA and NYLL as appropriate), NYLL pre‑judgment interest (9% using midpoint dates), attorneys’ fees and costs, and mandatory post‑judgment interest |
Key Cases Cited
- Enron Oil Corp. v. Diakuhara, 10 F.3d 90 (2d Cir. 1993) (default-judgment two-step procedure and district court discretion)
- Meehan v. Snow, 652 F.2d 274 (2d Cir. 1981) (default judgment as extreme sanction; preference for merits)
- Lundy v. Cath. Health Sys. of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013) (overtime pleading standards require alleging 40 hours in a given workweek and unpaid time beyond that)
- Nakahata v. New York–Presbyterian Healthcare Sys., Inc., 723 F.3d 192 (2d Cir. 2013) (overtime claims require sufficient detail on length and frequency of unpaid work)
- Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir. 1999) (economic‑reality test for employer status; control is key)
- Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003) (joint employer analysis; totality of circumstances beyond Carter factors)
- Barenboim v. Starbucks Corp., 698 F.3d 104 (2d Cir. 2012) (limits on tip‑pooling and role of tip credit under state law)
- Cement & Concrete Workers Dist. Council v. Metro Found. Contractors, Inc., 699 F.3d 230 (2d Cir. 2012) (damages in default judgment context; courts may rely on affidavits/documentary evidence)
- Covey v. Simonton, 481 F.Supp.2d 224 (E.D.N.Y. 2007) (adopting magistrate judge R&R standard of review)