HENRY PITMAN, Magistrate Judge.
This matter is before me on plaintiffs' application for a default judgment and damages against defendants A.J.S. Management, Inc. ("AJS") and AJS Construction & Renovation Inc. ("C&R") (collectively, the "AJS Defendants"). Plaintiffs and the AJS Defendants have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).
On September 15, 2017, I granted defense counsel's motion to withdraw with the following admonition: "because AJS and C&R are corporations and because corporations can appear in an action only through counsel, it is imperative that corporate defendants retain new counsel" (Endorsed Order, dated Sept. 15, 2017 (Docket Item ("D.I.") 61) ("Sept. 15 Order") (internal citations omitted)). I further warned that "[u]nless an attorney enters an appearance on behalf of AJS and C&R no later than October 15, 2017, it is my intention to enter a default judgment against AJS and C&R as to all claims against them" (Sept. 15 Order).
To date, the AJS Defendants have not obtained new counsel. Thus, pursuant to my Sept. 16 Order, I found the AJS Defendants to be in default and issued a scheduling order on January 2, 2018. My Scheduling Order provided, in pertinent part:
Plaintiffs timely submitted Proposed Findings of Fact and Conclusions of Law on February 27, 2018 (Plaintiffs' Findings of Fact and Conclusions of Law, dated Feb. 27, 2018 (D.I. 72) ("Pl. Memo.")). Copies of my Scheduling Order were mailed to the AJS Defendants. To date, the AJS Defendants have not submitted any materials with respect to this inquest, nor have they contacted my chambers in any way. Accordingly, on the basis of plaintiffs' submissions alone, I make the following findings of fact and conclusions of law.
1. Plaintiffs Shreal Douglas, Joe Smith, Michael Bautista, Eric Dupree and Shasheem Jones are former employees of the AJS Defendants (Amended Complaint, dated Apr. 24, 2017 (D.I. 48) ("Am. Compl.") ¶¶ 6, 29; Declaration of Shreal Douglas, dated May 27, 2015 (D.I. 68) ("Douglas Decl.") ¶ 1; Declaration of Joe Smith, dated May 27, 2015 (D.I. 71) ("Smith Decl.") ¶ 1; Declaration of Michael Bautista, dated May 27, 2015 (D.I. 67) ("Bautista Decl.") ¶ 1; Declaration of Eric Dupree, dated May 27, 2015 (D.I. 69) ("Dupree Decl.") ¶ 1; Declaration of Shasheem Jones, dated June 1, 2015 (D.I. 70) ("Jones Decl.") ¶ 1).
2. The AJS Defendants are domestic corporations organized under the laws of the State of New York with their principal place of business at 149 5th Avenue, New York, New York 10010 (Am. Compl. ¶ 9). Defendant Spartan is a domestic corporation organized under the laws of the State of New York with its principal place of business at 121-07 234th Street, Rosedale, New York 11422 (Am. Compl. ¶ 9). Defendant Alleyne is a resident of Queens and is an owner, officer, director and/or managing agent of Spartan (Am. Compl. ¶¶ 10-11). The AJS Defendants and Spartan had a gross revenue in excess of $500,000 (Am. Compl. ¶ 59).
3. The AJS Defendants were hired by the City University of New York ("CUNY") to perform construction on the campus of Queens College (Am. Compl. ¶¶ 11, 39, 42, 73). Spartan is a subcontractor of the AJS Defendants; Spartan hired plaintiffs as interior mason tenders to perform the demolition work at the Queens College job site (Am. Compl. ¶¶ 11, 29, 39; Subcontract Agreement, annexed to Declaration of William C. Rand, Esq. as Ex. C, dated Feb. 27, 2018 (D.I. 66) ("Rand Decl.")).
4. Plaintiff Douglas worked on the Queens College project from approximately January 13, 2015 until approximately January 26, 2015 and again from approximately February 25, 2015 until approximately March 11, 2015 (Douglas Decl. ¶ 1). Throughout the entirety of his employment, Douglas worked between 40 and 52 hours per week (Douglas Decl. ¶ 8).
5. Prior to the start of his employment, Douglas was informed that he would be paid the prevailing wage rate of $56.84 per hour plus overtime premium pay for any hours worked in excess of 40 hours per week (Douglas Decl. ¶ 19). However, defendants paid Douglas only $15.00 per hour for all hours worked (Douglas Decl. ¶ 18).
6. Douglas' job duties did not include managerial or supervisory responsibilities and did not require the exercise of independent business judgment (Douglas Decl. ¶¶ 2-7).
7. Plaintiff Smith worked on the Queens College project from approximately February 6, 2015 until approximately March 11, 2015 (Smith Decl. ¶ 1). Throughout the entirety of his employment, Smith worked between 40 and 52 hours per week (Smith Decl. ¶ 8).
8. Prior to the start of his employment, Smith was informed that he would be paid the prevailing wage rate of $56.84 per hour plus overtime premium pay for any hours worked in excess of 40 hours per week (Smith Decl. ¶ 19). However, defendants never paid Smith for any of the hours he worked (Smith Decl. ¶¶ 18, 21).
9. Smith's job duties did not include managerial or supervisory responsibilities and did not require the exercise of independent business judgment (Smith Decl. ¶¶ 2-7).
10. Plaintiff Bautista worked on the Queens College project from approximately January 13, 2015 until approximately January 26, 2015 and again from approximately February 25, 2015 until approximately March 11, 2015 (Bautista Decl. ¶ 1). Throughout the entirety of his employment, Bautista worked between 40 and 52 hours per week (Bautista Decl. ¶ 8).
11. Prior to the start of his employment, Bautista was informed that he would be paid the prevailing wage rate of $56.84 per hour plus overtime premium pay for any hours worked in excess of 40 hours per week (Bautista Decl. ¶ 18). However, defendants paid Bautista only $15.00 per hour for all hours worked (Bautista Decl. ¶¶ 17, 20).
12. Bautista's job duties did not include managerial or supervisory responsibilities and did not require the exercise of independent business judgment (Bautista Decl. ¶¶ 2-7).
13. Plaintiff Dupree worked on the Queens College project from approximately January 13, 2015 until approximately January 26, 2015 and again from approximately March 5, 2015 until approximately March 11, 2015 (Dupree Decl. ¶ 1). Throughout the entirety of his employment, Dupree worked between 40 and 52 hours per week (Dupree Decl. ¶ 8).
14. Prior to the start of his employment, Dupree was informed that he would be paid the prevailing wage rate of $56.84 per hour plus overtime premium pay for any hours worked in excess of 40 hours per week (Dupree Decl. ¶ 19). However, defendants paid Dupree only $15.00 per hour for all hours worked (Dupree Decl. ¶¶ 18, 21).
15. Dupree's job duties did not include managerial or supervisory responsibilities and did not require the exercise of independent business judgment (Dupree Decl. ¶¶ 2-7)
16. Plaintiff Jones worked on the Queens College project from approximately February 6, 2015 until approximately February 18, 2015 (Jones Decl. ¶ 1). Jones alleges that he worked at least 45 hours per week during this time period (Jones Decl. ¶ 8).
17. Although Jones' declaration does not specifically allege that he was informed prior to his employment that he would be paid the prevailing wage rate of $56.84 per hour, it is alleged in the Amended Complaint that all plaintiffs were informed they would be paid $56.84 per hour plus overtime premium pay (Am. Compl. ¶ 44). Defendants paid Jones only $15.00 per hour for all hours worked (Jones Decl. ¶¶ 14-17).
18. Jones' job duties did not include managerial or supervisory responsibilities and did not require the exercise of independent business judgment (Jones Decl. ¶¶ 2-7).
19. Although plaintiffs were paid by Spartan, they were scheduled and supervised on a day-to-day basis by the AJS Defendants (Deposition of Hal Levy, annexed to Rand Decl. as Ex. D (D.I. 66-4) ("Levy Dep.") at 8-9, 73-75; Deposition of Steven DiPietro, annexed to Rand Decl. as Ex. E (D.I. 66-5) ("DiPietro Dep.") at 62).
20. Plaintiffs commenced this action under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et
21. The events giving rise to plaintiffs' claims occurred in the Eastern District of New York as Queens College is located at 65-30 Kissena Boulevard, Flushing, New York 11367 (Am. Compl. ¶ 39). However, defendants have not made any objection to the improper venue and, thus, this defense is waived.
22. Under the FLSA, an employee plaintiff generally "has the burden of proving that he performed work for which he was not properly compensated."
23. In light of the holding in
24. All plaintiffs have submitted declarations attesting, with specificity, to the number of hours they worked at the Queens College job site and the wages they were paid (
25. Plaintiffs seek damages under a prevailing wage claim. Plaintiffs allege that they are owed the prevailing wage rate of $56.84 per hour as third party beneficiaries of the public works subcontract agreement between Spartan and the AJS Defendants (Rand Decl. ¶¶ 8-10). In support of this claim, plaintiffs submitted various documents from the subcontract agreement, CUNY's pre-construction instructions and deposition testimony from the AJS Defendants' supervisors who confirmed that contractors working at the Queens College site were required to pay prevailing wages and all workers were entitled to receive $56.84 per hour for straight time (
26. New York Labor Law Section 220 "requires that any laborers, workmen or mechanics hired to work on a public works contract be paid a prevailing rate of wages."
(Koeltl, D.J.);
27. While the language in the Amended Complaint suggests that plaintiffs intended to recover their prevailing wages under a common law breach of contract theory, plaintiffs rely on New Labor Law Section 220 in their Proposed Findings of Fact and Conclusions of Law (Pl. Memo at 17).
28. It is well established that exhaustion of administrative remedies is a condition precedent to a prevailing wage claim pursuant to New Labor Law Section 220.
29. However, there is no impediment to plaintiffs' asserting their prevailing wage claim as a breach of contract claim, for which there is no administrative exhaustion requirement.
30. Plaintiffs also allege violations of the FLSA and the NYLL arising out of defendants' failure to pay them overtime premium pay for all hours worked in excess of 40 hours per week. Both the FLSA and the NYLL require employers to pay overtime wages, equal to one and one-half the employee's regular rate of pay, for every hour worked in excess of 40 hours in any given week. 29 U.S.C. § 207(a); N.Y. Lab. Law § 651; 12 N.Y.C.R.R. § 142-2.2. The method for calculating overtime under both statutes is the same, but a plaintiff may not receive double damages.
31. Because plaintiffs have sufficiently alleged that their contractual rate of pay was $56.84, plaintiffs are entitled to a premium pay of $85.26 for each hour worked in excess of 40 hours per week.
32. In addition to compensatory damages, plaintiffs also seek to recover liquidated damages.
33. Douglas worked an average of 46 hours per week
34. Smith worked an average of 46 hours per week for approximately four weeks on the Queens College project (Smith Decl. ¶ 1). Smith alleges he was paid no wages during this time period (Smith Decl. ¶ 18). Thus, based on the principles described above, Smith is entitled to
35. Bautista worked an average of 46 hours per week for approximately four weeks on the Queens College project (Bautista Decl. ¶ 1). Bautista alleges he was paid $2,760 during this time period ($15.00 × 46 hours × 4 weeks = $2,760). Thus, based on the principles described above, Bautista is entitled to
36. Dupree worked an average of 46 hours per week for approximately three weeks on the Queens College project (Dupree Decl. ¶ 1). Dupree alleges that he was paid $2,070 during this time period ($15.00 × 46 hours × 3 weeks = $2,070). Thus, based on the principles described above, Dupree is entitled to
37. Jones worked an average of 45 hours per week for approximately two weeks on the Queens College project (Jones Decl. ¶¶ 1, 8). Jones alleges that he was paid $1,350 during this time period ($15.00 × 45 hours × 2 weeks = $1,350). Thus, based on the principles described above, Jones is entitled to
F.
38. Finally, plaintiffs seek an award of $72,855 in attorneys' fees and $2,324.90 in out-of-pocket costs incurred in bringing this action. "`Both the FLSA and the NYLL are fee-shifting statutes that entitle plaintiffs to recover reasonable attorneys' fees and costs in successfully prosecuting wage-and-hour actions.'"
39. It is well settled in this Circuit that courts utilize the "lodestar" method, i.e., "the product of a reasonable hourly rate and the reasonable number of hours required by the case," to determine a presumptively reasonable attorneys' fee award.
40. Plaintiffs were represented during this action by William C. Rand, Esq. Although Mr. Rand's requested hourly rate of $450 is on the higher end of rates normally deemed reasonable for FLSA and NYLL wage-and-hour cases in this Circuit, Mr. Rand has practiced law for over 26 years, is a founding partner of his firm and has extensive experience in labor and employment matters (Law Firm Biography, annexed to Rand Decl. as Ex. G (D.I. 66-7)). Thus, I find $450 to be a reasonable hourly fee given Mr. Rand's qualifications and experience.
41. Mr. Rand has also submitted the required contemporaneous time records with his fee application (Time Records of William C. Rand, Esq., annexed to Rand Decl. as Ex. G (D.I. 66-7) ("Rand Records")).
42. However, upon a close review of these time records, I find some of the documented hours to be "excessive" and "redundant."
43. When a court finds some attorney hours to be excessive or redundant, it "is not required to set forth item-by-item findings [of those] individual billing items. Rather, a court may use a percentage reduction as a practical means of trimming fat from a fee application."
44. Turning to plaintiffs' request for the reimbursement of out-of-pocket costs, plaintiffs request $400 in filing fees, $215 in service of process fees, $44.20 in copying fees and $1,665.70 in deposition fees. Plaintiffs' request for $659.20 in filing fees, service of process and copying fees is reasonable, and I approve it.
45. Thus, I award $69,212.25 to plaintiffs' counsel as attorneys' fees and $2,324.90 in out-of-pocket costs.
Accordingly, for all the foregoing reasons, plaintiffs are awarded judgment against the AJS Defendants, jointly and severally, as follows: (1) $10,426.88 to Douglas; (2) $13,186.88 to Smith; (3) $10,426.88 to Bautista; (4) $7,820.16 to Dupree; (5) $4,902.40 to Jones and (6) $71,537.15 in attorneys' fees and costs. Thus, in total, plaintiffs are entitled to a judgment of
SO ORDERED
The fact that a large portion of plaintiffs' damages come from a common law breach of contract claim, rather than the FLSA or the NYLL, also does not create an obstacle for the recovery of attorneys' fees because it is clear that the successful breach of contract claim was "inextricably intertwined" and involved a "common core of facts" with the FLSA and the NYLL overtime claim and did not require additional work.