MEMORANDUM & ORDER
Plaintiffs Maribel Rodriguez, Gissella Rodriguez, Norma Reyes and Maria Antunez (“Plaintiffs”) brought this suit under the Fair Labor Standards Act (the “FLSA”) and the New York State Labor Law (the “NYSLL”) to recover unpaid wages against Defendants Almighty Cleaning, Inc.; PMCB Cleaning & Maintenance, Inc.; and Phillip Patanjo (“Defendants”). Plaintiffs have moved for conditional certification and for a default judgment. This Court referred Plaintiffs’ motions to Magistrate Judge A. Kathleen Tomlinson for a Report and Recommendation (“R & R”).
On February 28, 2011, Judge Tomlinson issued an R & R recommending, among other things, that conditional certification be granted and Plaintiffs be awarded a default judgment. Judge Tomlinson directed Plaintiffs to serve the R & R on Defendants and specified that any Objections would be due within fourteen (14) days of service. The time for filing Objections has expired, and no party has objected. Accordingly, all objections are hereby deemed to have been waived.
Upon careful review and consideration, the Court finds Judge Tomlinson’s R & R to be comprehensive, well-reasoned, thorough and free of clear error, and it ADOPTS the R & R in its entirety. The Clerk of the Court is directed to enter judgment against Defendants in favor of Plaintiff Maribel Rodriguez in the amount of $102,867.42; in favor of Plaintiff Gissella Rodriguez in the amount of $150,195.07; in favor of Plaintiff Norma Reyes in the amount of $89,555.04; and in favor of Plaintiff Maria Antunez in the amount of $14,557.25. The Defendants are to be held jointly and severally liable for these damages amounts.
Further, Plaintiffs’ motion for conditional certification as an FLSA collective action is granted, and Defendants are ORDERED to produce promptly the names and last known addresses of potential class members. The Court hereby authorizes the posting and circulation of the proposed Notice of Pendency (Docket Entry 8-7). As Judge Tomlinson recommended, if individuals opt-in to this action and seek to be added as parties, Plaintiffs will be required to amend their Complaint to add these individuals. The amended complaint
SO ORDERED.
REPORT AND RECOMMENDATION
I. PRELIMINARY STATEMENT
Plaintiffs Maribel Rodriguez, Gissella Rodriguez, Norma Reyes and Maria Antunez (collectively “Plaintiffs”) commenced this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 eb seq., and the New York State Labor Law (“NYSLL”) to recover unpaid wages against Defendants Almighty Cleaning, Inc. (“Almighty Cleaning”), PMCB Cleaning & Maintenance, Inc. (“PMCB”), and Phillip Patanjo (“Patanjo”) (collectively “Defendants”).
The Complaint was filed on July 14, 2009. DE 1. Defendants filed an Answer on September 11, 2009 denying many of the allegations in the Complaint. DE 5. On November 19, 2009, Plaintiffs filed a motion for conditional class certification of an FLSA collective action. 1 DE 7. Defendants filed opposition to the class certification motion on December 21, 2009. DE 14. Three months later, in March 2010, Defendants’ counsel filed a motion to withdraw as counsel based on Defendants’ failure to communicate with counsel and failure to pay legal fees. DE 17. This motion was granted on May 17, 2010, at which time Judge Seybert ordered that “Defendants are directed to obtain new counsel, and such counsel is directed to file a notice of appearance, within 30 days of the entry of this Order.” DE 18. On May 21, 2010, Defendant’s former counsel filed an Affidavit of Service stating that he had served the Order granting his motion to withdraw on Defendants by first class mail and certified mail. DE 19.
On July 14, 2010, Judge Seybert issued an Order to Show Cause stating that Defendants had failed to obtain new counsel or communicate in any way with the Court. DE 20. Judge Seybert ordered that “defendants show cause why the Court should not entertain a motion by plaintiffs to strike the answer and for a default judgment. The defendants shall file a response with the Court within 30 days of the date of this Order ...” Id. 2 On the same day that the Order was issued, the Clerk of the Court mailed the Order to Show Cause to each Defendant via certified mail. The copies of the Order mailed to Defendants Almighty and PMCB were returned as undeliverable [DE 22, 24]. However, the copy mailed to Defendant Patanjo was signed for by Michelle Patanjo on July 16, 2010 [DE 21]. On August 11, 2010, Plaintiff filed a letter with the Court seeking to adjourn a scheduled pretrial conference due to Defendants’ continued failure to obtain counsel. DE 26. The letter indicates that a copy was sent to each Defendant. Id.
On August 25, 2010, Plaintiff filed a motion for default judgment as to all Defendants. DE 30. Subsequently, the Clerk of the Court issued a certificate of default as to all Defendants. DE 34. District Judge Seybert referred the matter to me for a Report and Recommendation as to whether the pending motions for default judgment and conditional class certification should be granted, and to determine the appropriate amount of damages, costs,
II. PERTINENT FACTS
Defendants Almighty Cleaning and PMCB are each engaged in the commercial and residential cleaning business. Compl. ¶¶25, 30. Defendant Patanjo is the owner and operator of both Almighty Cleaning and PMCB. Id. ¶¶ 32, 42. Plaintiffs Maribel Rodriguez and Gissella Rodriguez were employed by Defendants to clean residential and commercial buildings from approximately May 2006 until June 2009. Id. ¶¶ 15-18. Plaintiff Norma Reyes was employed by Defendants to clean residential and commercial buildings from approximately April 2007 until June 2009. Id. ¶¶ 19-20. Plaintiff Maria Antunez was employed by Defendants to clean residential and commercial buildings from approximately February 2009 until June 2009. Id. ¶¶ 21-22.
Plaintiffs contend that they were required to be paid overtime pay at the statutory rate of time and one-half the regular rate of pay after working more than 40 hours in a workweek. Id. ¶¶ 61, 65, 69, 73. In most workweeks during their employment, Plaintiffs claim they worked more than 70 hours for the Defendants. Id. ¶¶ 62, 66, 70, 74. Further, Plaintiffs allege that Defendants failed to compensate them at the statutory minimum wage. Id. ¶¶ 76-79. The Complaint asserts that there are over twenty current and former employees who are similarly situated to Plaintiffs in that they have also been denied overtime compensation. Id. ¶ 92.
III. MOTION FOR A DEFAULT JUDGMENT
A default constitutes an admission of all well-pleaded factual allegations in the complaint and the allegations as they pertain to liability are deemed true.
Joe Hand Promotions, Inc. v. El Norteno Rest. Corp.,
A. Liability
As an initial matter, this Court must determine that Plaintiffs have adequately pled the requirements of liability under the FLSA and the NYLL. In order to make a
prima facie
showing of a violation under the minimum wage and overtime provisions of the FLSA, Plaintiffs must adequately allege that they were covered employees under the FLSA. The FLSA minimum-wage and overtime provisions apply only to employees who are “(1) personally engaged in interstate commerce or in the production of goods for interstate commerce (so-called ‘individual coverage’), or (2) [were] employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce (so-called ‘enterprise coverage’).”
Shim v. Millennium Group,
No. 08-CV-4022,
An entity constitutes an enterprise where “the related activities performed (either through unified operation or common control) by any person or persons [are] for a common business purpose.” 29 U.S.C. § 203(r). Plaintiffs’ Complaint alleges that both Defendant Almighty Cleaning and Defendant PMCB were owned and operated by Defendant Patanjo and that Defendant Patanjo exercised control over both businesses. DE 1 ¶¶ 32, 39-42, 49-51, 56. Plaintiffs further allege that Defendants Almighty Cleaning and PMCB each engaged in commercial and residential cleaning, and that Plaintiffs worked simultaneously for both entities. DE 1 at ¶ 25, 30, 15-22. Under the statute, the enterprise must also have no less than $500,000 in annual gross volume of business done. 29 U.S.C. § 203(b)(1)(A). Plaintiffs allege that Defendants meet these requirements of the definition of an “enterprise.” DE 1 at ¶ 57. Thus, Plaintiffs have adequately pled that Defendants constituted an “enterprise” under the FLSA.
Plaintiffs have also adequately alleged that the enterprise was engaged in interstate commerce. Because even “local business activities fall within the reach of the FLSA when an enterprise employs workers who handle goods or materials that have moved or been produced in interstate commerce[,]”
Archie v. Grand Cent. P’ship, Inc.,
The Plaintiffs allege violations of the FLSA’s minimum-wage provision, which states that “[e]very employer shall pay to each of his employees ... not less than ... $5.85 an hour ...” 29 U.S.C. § 206(a). Plaintiffs’ Complaint alleges that Defendants have “willfully failed to pay plaintiffs the minimum wages for hours worked.” DE 1 at ¶ 113. For example, Maribel Rodriguez states that throughout her 37 months of employment with Almighty Cleaning and PMCB, her normal work schedule was six days a week. She worked Monday and Tuesday from 5 a.m. until 8 p.m., with a half-hour break each day, for a total of 14.5 hours each of those days.
See
Affidavit of Maribel Rodriguez (“M. Rodriguez Aff.”) annexed as Ex. 6 to the Declaration of Troy L. Kessler, Esq. (“Kessler Deck”), ¶ 8. On Wednesdays, Maribel Rodriguez worked from 5 a.m. until 7 p.m. (13.5 hours).
Id.
For Thursdays, Fridays, and Saturdays, Maribel Rodriguez worked from 7 a.m. to 7 p.m. (11.5 hours each day).
Id.
In a nor
Plaintiffs also allege violations of the FLSA’s overtime provision, which states that “no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Maribel and Gissella Rodriguez as well as Maria Antunez state that they were paid $400 weekly, which, pursuant to the previous calculations, supports this contention.
See
M. Rodriguez Aff., ¶ 8; G. Rodriguez Aff., ¶ 8; Antunez Aff. ¶ 8. Because the Complaint alleges that Plaintiffs worked more than 40 hours a week and were not paid time-and-a-half for their overtime hours, Plaintiffs have sufficiently pleaded a violation of 29 U.S.C. § 207. DE 1 at ¶ 96;
see also Shim,
The Complaint also asserts violations of the New York Labor Law’s minimum wage provision, which specifies that “[e]very employer shall pay to each of its employees for each hour worked a wage of not less than” the wage established by statute for that year. N.Y. Labor Law § 652(1). During calendar year 2006, the minimum wage under the New York Labor Law was $6.75 per hour while that rate increased to $7.15 per hour for work performed between January 1, 2007 and July 23, 2009. N.Y. Labor Law § 652; 12 N.Y.C.R.R. § 137-1.2. Based upon the calculations above showing that the Plaintiffs were being paid between $3.59 per hour and $5.19 per hour compared to the FLSA rate of $5.85 per hour, it is clear that the wages paid to the Plaintiffs as they have asserted them fall below the N.Y. Labor Law hourly minimum wage of $7.15. Because the Complaint alleges that “Defendants willfully violated plaintiffs’ rights by failing to pay plaintiffs the minimum wage for all hours of work performed each week,” Plaintiffs have adequately pleaded a violation of N.Y. Labor Law § 652. DE ¶ 117.
Finally, Plaintiffs allege a violation of the New York Labor Law’s overtime provision, which specifies that eight hours constitutes a “legal day’s work,” N.Y. Labor Law § 160, and that “an employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate ...” N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2. Plaintiffs also allege a violation of the New York Labor Law’s spread-of-hours provision, which requires that an employee receive “one hour’s pay at the basic minimum hourly wage rate, in addition to the minimum wage” for any day the employee works 10 or more hours. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.4(a). Because the Complaint alleges that Plain
B. Entry of Default
For a movant to obtain a default judgment, it must complete a two-step process. “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend ... and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party’s default.” Fed. R.. Civ. P. 55(a);
see Fashiontv.com GMBH v. Hew,
Rule 55(b)(2) provides that, except in cases in which “the plaintiffs claim is for a sum certain or a sum that can be made certain by computation”
(see
Rule 55(b)(1)), “the party must apply to the court for a default judgment.” The determination of a motion for default judgment is left to the sound discretion of the district court.
See Shah v. New York State Dep’t of Civil Serv.,
In determining whether to grant a default judgment, the court may consider “numerous factors, including ‘whether plaintiff has been substantially prejudiced by the delay involved [] and whether the grounds for default are clearly established or in doubt.’ ”
O’Callaghan v. Sifre,
As to the first factor, both the corporate and individual Defendants ignored this Court’s order to seek substitute counsel by a given date and subsequently did not respond to the Court’s Order to Show Cause. Furthermore, Defendants’ counsel withdrew in part due to the clients’ failure to communicate regarding this case. This repeated conduct shows a willful and deliberate disregard for this Court’s orders, which militates in favor of a default
Next, the Court must consider whether Defendants have a meritorious defense. “A defense is meritorious if it is good at law so as to give the factfinder some determination to make.”
American Alliance Ins. Co. v. Eagle Ins. Co.,
The final factor the Court must consider is whether the non-defaulting parties would be prejudiced if the motion for default were to be denied. Denying this motion would be prejudicial to Plaintiffs “as there are no additional steps available to secure relief in this Court.”
Bridge Oil Ltd. v. Emerald Reefer Lines, LLC,
No. 06 Civ. 14226,
Although Defendants have raised a meritorious defense, this Court finds that the other factors set forth in
Mason Tenders
weigh in favor of granting Plaintiffs motion for a default judgment. The fact that Defendants have not submitted a brief in opposition to Plaintiffs motion further supports that conclusion. Moreover, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, Defendants will still have fourteen days after the service of this Report and Recommendation to raise objections to these findings should they so choose. Therefore, I respectfully recommend to Judge Seybert
IV. DAMAGES CALCULATION
Plaintiffs seek recovery of unpaid minimum wages under the NYSLL and overtime wages under the FLSA and NYSLL, as well as spread of hours pay under the NYSLL. Additionally, Plaintiffs seek liquidated damages under both the NYSLL and the FLSA. 3
A default judgment entered on the well-pleaded allegations in the complaint establishes a defendant’s liability.
See Garden City Boxing Club, Inc. v. Morales,
No. 05-CV-0064,
In determining damages not susceptible to simple mathematical calculations, Federal Rule 55(b)(2) gives courts discretion to determine whether an evidentiary hearing is necessary or whether to rely on detailed affidavits or documentary evidence.
Action S.A. v. Marc Rich and Co., Inc.,
Under the FLSA, an employee is entitled to recover “the amount of their unpaid minimum wages, [and/] or their unpaid overtime compensation” and “an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b) (2008). The employer bears the burden of establishing that liquidated damages should not be awarded.
Reich v. S. New England Telecomm. Corp.,
Under New York Labor Law, an employee is entitled to recover unpaid minimum wages and overtime, in addition to unpaid spread of hours pay. 12 N.Y.C.R.R. §§ 142-2.2, -2.4 (2010). New York law also provides for liquidated damages equivalent to 25% of the total amount of the wages found to be due, if the employer’s underpayments were willful. N.Y. Lab. Law §§ 198(1-a), 663(1) (McKinney 2009). Under New York Labor Law, willfulness is established where employers voluntarily underpay employees. Moon
v. Kwon,
In FLSA and New York Labor Law cases,
The statute of limitations ... under federal law is three years in light of Plaintiffs’ uncontested factual proffers supporting the conclusion that Defendants’ underpayment was willful. 29 U.S.C. § 255(a). The statute of limitations for the state law claim is six years. N.Y. Lab. Law § 663(3). Plaintiffs’ federal claim subsumes their state law claim for the overlapping damages period. For the period that is untimely under the federal three-year statute of limitations but timely under the state law six-year statute of limitations, the state law claim is operative. See Khan v. IBI Armored Services, Inc., 474 F.Supp.2d 448 , 450 n. 1 (E.D.N.Y.2007).
Rios v. Neighborhood Const. Corp.,
No. 07 Civ. 8701,
“In an FLSA case, in the absence of rebuttal by defendants, plaintiffs’ recollection and estimates of hours worked are presumed to be correct.”
Ting Yao Lin v. Hayashi Ya II, Inc.,
08-CV-6071,
Unpaid minimum wages due are calculated by subtracting the hourly rate paid to Plaintiffs each week from New York’s minimum wage rate. That difference is then multiplied by the number of hours worked each week by Plaintiffs. The totals for each week are then added together to yield the total unpaid minimum wages due.
Unpaid overtime wages are calculated by multiplying the New York minimum wage rate or the FLSA minimum wage rate, whichever is higher, 4 by 0.5 to determine the additional amount owed per hour over 40 hours worked. That amount is then multiplied by the number of hours of overtime worked per week to yield a sum of overtime pay owed per week. The amounts for each week are then aggregated to determine the total amount of overtime damages owed.
Because Plaintiffs worked more than ten hours each day, they also seek New York spread of hours damages, which amount to one hour’s pay at the minimum wage rate for each day worked over ten hours. These damages are calculated by multiplying the number of days worked per year by the by the minimum wage rate for that period.
FLSA liquidated damages are assessed at an amount equal to the overtime and minimum wage damages owed to each Plaintiff. On the other hand, New York liquidated damages are calculated here by multiplying the total amount of unpaid wages due under New York law by .25. By way of illustration, Plaintiff Maribel Rodriguez’s damages for Defendants’ minimum wage violations for 2007 are calculated as follows:
• In 2007, Maribel Rodriguez worked 77 hours per week for 52 weeks. Her hourly rate varied between $1.30 and $5.45.
• New York’s minimum wage rate in 2007 was $7.15. The difference between $7.15 and Maribel Rodriguez’shourly rate for each week was calculated, yielding an amount owed per hour of between $1.70 and $5.85 each week.
• The hourly rate for each week was then multiplied by 77, to yield the amount owed for each week. For example, during the week of January 5, 2007, Maribel Rodriguez worked 77 hours at a rate of $2.14 per hour. The amount owed per hour for that week is $5.01. Thus, the amount owed in minimum wages for the week is $385.55.
• Aggregating the totals owed to Maribel Rodriguez for each week of 2007 yields a total sum owed in minimum wages for 2007 of $11,316.93.
With regard to overtime violations, Maribel Rodriguez’s overtime wages due for 2007 are calculated by multiplying $7.15 by 0.5, yielding a sum of $3,575 due for each hour worked over 40 hours. Multiplying $3,575 by 37 hours per week, over and above the 40 hours Maribel Rodriguez worked daily, yields a sum of $132.28 owed in overtime per week. Aggregating the amount owed for each week yields a sum of $6,878.30 owed in overtime wages for 2007.
As to spread-of-hours violations, Maribel Rodriguez worked more than ten hours a day, six days a week, for 52 weeks in 2007. Multiplying 52 by 6 and then again multiplying that amount by $7.15 yields a sum of $2230.80 due in spread of hours pay for 2007.
Based on these figures, Maribel Rodriguez’s liquidated damages under the FLSA are $6,878.30. Her liquidated damages under New York law are 25% of the sum of her minimum wage damages ($11,-316.93) and her spread of hours damages ($2230.80), which yields a sum of $3,386.93. Thus, for 2007, Maribel Rodriguez is entitled to damages in the amount of $28,460.46.
For the additional Plaintiffs, the Court has taken the hours worked information from their affidavits, as well as the two attorney declarations containing various pay stubs and damages charts. See Kessler Decl.; Kessler Supp. Deck; M. Rodriguez Aff. (Ex. 6); G. Rodriguez Aff. (Ex. 7); Antunez Aff. (Ex. 8); Damages Calculations for M. Rodriguez (Ex. 10); Damages Calculations for G. Rodriguez (Ex. 11); Damages Calculations for N. Reyes (Ex. 12); Damages Calculations for M. Antunez (Ex. 13); M. Rodriguez Pay Stubs (Ex. 10-A); G. Rodriguez Pay Stubs (Ex. 11-A); N. Reyes Pay Stubs (Ex. 12-A); M. Antunez Pay Stubs (Ex. 12-A). After performing the previous calculations in the same manner for each Plaintiff for each year worked within the applicable time period, the Court finds that the following total damages are due to each Plaintiff 5 :
Finally, Plaintiffs seek to have Defendants each held jointly and severally liable for the damages awarded because each Defendant can be considered an “employer” under both the FLSA and the NYLL. DE 32 at 8-9. Courts in this circuit have held that the same analysis applies when determining whether defendants are jointly liable as employers under the FLSA and the NYLL.
See Ansoumana v. Gristede’s Operating Corp.,
To be held liable under the FLSA, a person must be an “employer,” which § 3(d) of the statute defines broadly as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d) (1994). The Supreme Court has emphasized the “expansiveness” of the FLSA’s definition of employer. Falk v. Brennan,414 U.S. 190 , 195,94 S.Ct. 427 ,38 L.Ed.2d 406 (1973). Above and beyond the plain language, moreover, the remedial nature of the statute further warrants an expansive interpretation of its provisions so that they will have “the widest possible impact in the national economy.” Carter v. Dutchess Community College,735 F.2d 8 , 12 (2d Cir.1984).
Furthermore, Courts in this circuit have held that an individual corporate officer or owner is deemed an employer under the FLSA “in situations where the individual has overall operational control of the corporation, possesses an ownership interest in it, controls significant functions of the business, or determines the employees’ salaries and makes hiring decisions.”
Lopez v. Silverman,
V. CONDITIONAL CLASS CERTIFICATION
As noted supra, Plaintiffs’ motion for conditional class certification is also currently pending before this Court. Plaintiffs’ motion, filed on November 19, 2009, seeks: (1) conditional certification as an FLSA collective action pursuant to 29 U.S.C. § 216(b) (“Section 216(b)”); (2) Defendants’ production of names and last known addresses of potential class members employed by Defendants within six years prior to the commencement of this action; and (3) Court authorization to post and circulate the proposed Notice of Pendency and Consent to Join, in English and Spanish, to all individuals who are similarly situated in this potential collective action. DE 9. Prior to withdrawing, Defendants’ counsel filed opposition to Plaintiffs’ motion contending that Plaintiffs cannot demonstrate that the potential plaintiffs were victims of any policy or practice maintained by Defendants and that Plaintiffs failed to establish that they are similarly situated to potential opt-in plaintiffs. DE 14.
While it is unusual to decide a conditional class certification motion contemporaneously with determining that Defendants have defaulted as to the named Plaintiffs, this is not the first time that such circumstances have arisen. Courts in other jurisdictions facing this same procedural setting have determined that it is proper to grant default judgment in favor of named Plaintiffs while simultaneously granting a motion for conditional class certification under the FLSA.
See James v. Claiborne,
No. 07-1570,
The FLSA provides, in pertinent part, as follows:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.... An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). Section 216(b) provides an employee with a private right of action to recover overtime compensation and/or minimum wages.
Id.
(cited in
Bifulco v. Mortgage Zone, Inc.,
Courts within the Second Circuit apply a two-step analysis to determine whether an action should be certified as an FLSA collective action. First, the court determines whether the proposed class members are “similarly situated.”
Rodolico v. Unisys Corp.,
The instant decision concerns only the first step — whether the proposed opt-in members are “similarly situated” such that conditional certification should be granted. At this stage, “the evidentiary standard is lenient,”
Rubery v. Buth-Na-Bodhaige, Inc.,
This determination is typically “based on the pleadings, affidavits and declarations” submitted by the plaintiffs.
Sexton,
In the instant case, Plaintiffs allege that they were subjected to the same FLSA violations as the potential opt-in plaintiffs while employed by the Defendants.
See
DE 9 at 7. Each named Plaintiff has submitted an affidavit stating that she believes the other twenty to thirty cleaners employed by Defendants were not provided with proper payment for overtime.
See
Affidavits of Maribel Rodriguez (“M. Rodriguez Aff.”), Gissella Rodriguez (“G. Rodriguez Aff.”), Norma Reyes (“Reyes Aff.”),
Defendants argue that the evidence presented by Plaintiffs is insufficient to meet the minimal burden necessary to show that Plaintiffs are similarly situated with the putative class and that Plaintiffs fail to show that they and opt-in plaintiffs were subject to a common policy or plan. DE 14. Defendants object to a series of alleged deficiencies in Plaintiffs’ affidavits, specifically that the affidavits are “essentially identical,” that the Plaintiffs beliefs that other coworkers were not compensated for overtime are based on “unspecified discussions,” and that Plaintiffs each identify one or two co-workers by first name only. However, as noted above, Plaintiffs are not required to definitively show that potential plaintiffs are similarly situated or were subject to a common policy or plan at this stage, but must make only a “modest” or “preliminary” showing.
See Summa v. Hofstra University,
No. CV 07-3307,
The Court finds that Plaintiffs have met the lenient evidentiary standard necessary to warrant the determination, at this stage, that the proposed opt-in plaintiffs are “similarly situated.” Plaintiffs “have demonstrated a sufficient ‘factual nexus between [their] situation and the situation of other current and former’ employees, who were potentially denied ... overtime wages.”
Sexton,
Next, Plaintiffs seek Defendants’ production of names and last known ad
The FLSA has a maximum three-year statute of limitations.
See
29 U.S.C. § 255. However, Plaintiffs request the contact information of employees going back six years because the state law claims, over which the Court may exercise supplemental jurisdiction, have a six-year statute of limitations.
See
28 U.S.C. § 1367. In similar cases, courts in this Circuit have granted both three and six-year periods depending upon the respective court’s findings. I find it appropriate and in the interest of judicial economy in this case to allow a six-year period to apply “even if some recipients of the notice will have claims that are time-barred under the FLSA.”
Cano v. Four M Food Corp.,
No. 08-CV-3005,
Likewise, the number of Plaintiffs and potential plaintiffs as represented does not appear to be very high. Given these factors, “it seems logical, efficient, and manageable to compel defendants’ production of these names only once, if possible.”
Cano,
Lastly, as discussed above, I recommend that Judge Seybert enter a default judgment as to the named Plaintiffs. Howev
VI. CONCLUSION
For the reasons set forth above, I respectfully recommend to Judge Seybert that: (1) a default judgment is warranted and should be entered against Defendants Almighty Cleaning, PMCB, and Patanjo as to the named Plaintiffs; (2) the Plaintiffs be awarded damages in the amount of $102,867.42 to Maribel Rodriguez, $150,195.07 to Gissella Rodriguez, $89,555.04 to Norma Reyes, and $14,557.25 to Maria Antunez; (3) Defendant Almighty Cleaning, Defendant PMCB, and Defendant Patanjo be held jointly and severally liable for these damages amounts; (4) Plaintiffs’ motion for conditional certification as an FLSA collective action be granted; (5) Defendants be ordered to produce promptly the names and last known addresses of potential class members; and (6) the Court authorize the posting and circulation of the proposed Notice of Pendency.
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections.
See also
Fed.R.Civ.P. 6(a) and (e). Such objections shall be filed with the Clerk of the Court via ECF. A courtesy copy of any objections filed is to be sent to the chambers of the Honorable Joanna Seybert, and to the chambers of the undersigned. Any requests for an extension of time for filing objections must be directed to Judge Seybert prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections will result in a waiver of those objections for purposes of appeal.
Thomas v. Arn,
Counsel for Plaintiff is directed to serve this Order on Defendants forthwith and to file proof of service on ECF.
SO ORDERED.
Notes
. On August 25, 2010, this motion was terminated by the Court, indicating that it would be decided at the time of the Motion for Default Judgment.
. The Order to Show Cause also noted that "while the individual defendant may represent himself, the corporate defendants may not." DE 20.
. The Plaintiffs' motion for default initially sought reimbursement of attorneys' fees. See DE 31 ¶ 13, DE 32 at 14. However, on December 16, 2010, Plaintiffs' attorney submitted a letter stating that “plaintiffs withdraw that portion of their motion for a default judgment which seeks an award of attorney’s fees.” DE 39.
. Under the FLSA, where the state minimum wage is higher than the federal minimum wage, the federal overtime rate is calculated based on the state minimum wage. 29 C.F.R. § 778.5.