Coombs et al v. KA Investgations-Security LLC et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X
TREVOR COOMBS, MARK GITTENS,
and SANJER PANTRY, on behalf of themselves,
FLSA Collective Plaintiffs and the Class,
Plaintiffs,
v.
KA INVESTIGATIONS-SECURITY LLC,
and KELVIN ALEXANDER,
Defendants.
REPORT & RECOMMENDATION
22-cv-3067 (MKB) (LKE)
X
LARA K. ESHKENAZI, United States Magistrate Judge:
Before the Court, on referral from the Honorable Margo K. Brodie, is the motion of
Plaintiffs Trevor Coombs (“Coombs”), Mark Gittens (“Gittens”), and Sanjer Pantry (“Pantry,” and
collectively “Plaintiffs”) for default judgment against Defendant KA Investigations-Security LLC
(“KA Investigations”). For the reasons set forth below, the Court respectfully recommends that
Plaintiffs’ motion be denied without prejudice, and that Plaintiffs be given thirty days to file an
amended complaint that cures the pleading deficiencies noted herein.
I. 	BACKGROUND
A. 	Factual Allegations
When a defendant defaults, a court is required to accept all of the plaintiff’s well-pleaded
factual allegations as true and draw all reasonable inferences in the plaintiff’s favor. Finkel v.
Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Bricklayers & Allied Craftworkers Loc. 2 v. Moulton
Masonry & Constr., LLC, 779 F.3d 182, 187-88 (2d Cir. 2015). As such, the Court accepts
Plaintiffs’ well-pleaded factual allegations as true for the purposes of this motion.
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KA Investigations is a New York domestic limited liability company, owned or controlled
by Defendant Kelvin Alexander (“Alexander,” and collectively “Defendants”). (Compl. ¶¶ 12, 29-
30, ECF 1.) KA Investigations performed subcontracting work in Brooklyn and Queens. (Id. ¶¶
13-26.) As former employees of Defendants, Plaintiffs allege Fair Labor Standards Act (“FLSA”)
and New York Labor Law (“NYLL”) violations against Defendants. (See generally Compl.)
From December 2019 to February 10, 2021, Coombs was a full-time employee of
Defendants. (Id. ¶¶ 45, 50.) Coombs was employed as a “flagger”1 and worked more than ten hours
a day, five days a week, for a total of approximately 45 to 54.5 hours per week. (Id. ¶¶ 50-54.) He
was paid $15 per hour and was not paid overtime rates. (Id. ¶¶ 59, 64.) In addition, Coombs was
not permitted to take a lunch break, and although Defendants told him could leave early if he
worked through lunch, he was not actually permitted to leave early, and lunch breaks were still
deducted from his wages. (Id. ¶¶ 55-58.)
Gittens was employed by Defendants as a security guard from approximately June 2018 to
November 19, 2021. (Id. ¶¶ 66, 69.) He worked more than ten hours per day, between 45 to 57.5
hours per week, and was first paid $14 per hour from June 2018 to April 2019, then $15 per hour
between April 2019 and November 2021. (Id. ¶¶ 71-73, 79-80.) Gittens was also not permitted to
take lunch breaks, despite the wage deduction for such breaks. (Id. ¶¶ 74-77.) Gittens further
alleges that he suffered late or unpaid wages, and that Defendants failed to pay overtime rates. (Id.
¶¶ 82-95.)
Pantry was employed full-time by Defendants as a security guard from approximately
August 2018 to December 3, 2021. (Id. ¶¶ 96, 100.) He worked more than ten hours a day, between
1 Plaintiffs do not define the duties of a “flagger” in the Complaint, but the Court notes that flaggers generally handle
parking, traffic, and crowd control at construction sites. See e.g., Moses v. Griffin Indus., LLC, 369 F. Supp. 3d 538,
542 (S.D.N.Y. 2019) (describing flaggers as individuals who “protect the public from hazardous conditions and protect
workers from traffic and congestion”).
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45 to 59 hours per week, and was paid approximately $13 to $15 per hour from August 2018 to
August 2019, $15 per hour from August 2019 to May 2021, and $17 per hour from May 2021 until
December 2021. (Id. ¶¶ 102, 104, 110-12.) Pantry also alleges that Defendants failed to provide
lunch breaks or pay overtime rates, and that he experienced late or unpaid wages. (Id. ¶¶ 105-108,
114-151).
B. 	Procedural History
On May 24, 2022, Plaintiffs initiated this action alleging Defendants’ failure to pay
minimum 	wages, 	overtime, 	spread-of-hours 	compensation, 	and 	provide 	wage 	notice
requirements.2 (See generally Compl.) On September 27, 2022, counsel for Defendants filed a
joint stipulation in which the parties agreed to extend Defendants’ time to answer. (ECF 6.) KA
Investigations subsequently answered on October 27, 2022, while Alexander filed a letter
indicating that there was an automatic stay on the claims against him due to his bankruptcy filing.
(ECF 8; ECF 9.) The Honorable Cheryl Pollak held an Initial Conference on December 1, 2022,
at which all parties appeared. (Dec. 2, 2022, Min. Entry.)
Following several status conferences and reports, Plaintiffs indicated that they sought to
proceed against KA Investigations while Alexander’s bankruptcy proceedings remained pending.
(May 18, 2023, Status Report, ECF 14.) KA Investigations continued to appear throughout the
proceedings, and at the June 9, 2023, Status Conference, Judge Pollak directed Plaintiffs to proceed
with discovery against KA Investigations. (June 12, 2023, Min. Entry.) KA Investigations sought
2 Plaintiffs also alleged a claim of retaliation and violation of 26 U.S.C. § 7434(a). (Compl. ¶¶ 188; 198.). These claims
are absent from Plaintiffs’ Motion for Default Judgment. (See generally ECF 35-1; ECF 35 at 1.) Accordingly, the
Court respectfully recommends that these claims be deemed abandoned. See Duan v. Studio M. Bar & Lounge Inc.,
No. 20-cv-2240, 2024 U.S. Dist. LEXIS 18201, at *3 n.8 (E.D.N.Y. Jan. 31, 2024) (deeming retaliation claims
abandoned where plaintiff failed to address them in motion for default judgment). Additionally, Plaintiffs do not
reiterate their collective action certification request in their Motion for Default Judgment. As such, this Court
respectfully recommends that Plaintiffs’ request for collective action certification be considered waived. See Jimenez
v. Green Olive Inc., 744 F. Supp. 3d 221, 251 (E.D.N.Y. 2024) (collecting cases).
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dismissal of the action due to Plaintiffs’ failure to timely serve interrogatories and document
demands, see Fed. R. Civ. P. 37(b)(2)(A)(v), noting, inter alia, that the company’s “funding cut
off in December 2021,” “all employees were laid off,” operations ceased, and it had “no funds to
pay counsel fees or litigation expenses” because “the company ha[d] no revenue.” (Sept. 11, 2023,
Letter at 1-2, ECF 18.) After Judge Pollak denied the application for dismissal and ordered
discovery to be exchanged, KA Investigations’ counsel withdrew. (See Sept. 12, 2023, Order; Mot.
to Withdraw, ECF 22; Dec. 19, 2023, Order, ECF 25.) KA Investigations neither retained new
counsel nor produced any discovery. (See Oct. 31, 2023, Order; Dec. 19, 2023, Order (requiring
KA Investigations to obtain counsel by January 22, 2024, or face default).) On March 25, 2024,
Judge Pollak ordered KA Investigations to show cause as to why default should not be entered
against it. (ECF 29.) After KA Investigations failed to respond, the Clerk of Court entered a
certificate of default against it, and the Court ordered Plaintiffs to file a motion for default
judgment. (ECF 30; 31; Feb. 26, 2025, Order.)
Plaintiffs then filed a request for sum certain default judgment, which they refiled as the
instant Motion for Default Judgment, as they seek attorneys’ fees not available under a sum certain
default judgment, see Local Civil Rule 55.2(a). (ECF 30; Mot. for Default J. (“Mot.”), ECF 35.)
Chief Judge Brodie referred the motion to the undersigned for a report and recommendation. (April
22, 2025, Order.) To date, Defendants have not responded to Plaintiffs’ motion.
II. 	JURISDICTION AND VENUE
“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Here, Plaintiffs assert claims
under the FLSA, 29 U.S.C. § 201, et seq. (Compl. ¶ 4.) Given that this action arises under the laws
of the United States, the Court has subject matter jurisdiction over this action. See, e.g., Rocha v.
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Bakhter Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 345 (E.D.N.Y. 2014). As for Plaintiffs’
remaining claims under New York State Law, the Court may exercise supplemental jurisdiction if
the claims arise out of the same facts and circumstances as the FLSA claims. 28 U.S.C. § 1367(a).
“For a federal court to exercise personal jurisdiction over a defendant, the plaintiff’s service
of process upon the defendant must have been procedurally proper.” Windward Bora LLC v.
Valencia, No. 19-cv-4147 (NGG) (RER), 2020 WL 6470293, at *2 (E.D.N.Y. Oct. 16, 2020), R. &
R. adopted, 2020 WL 6450286 (E.D.N.Y. Nov. 3, 2020). Federal Rule of Civil Procedure
4(h)(1)(A) provides that a corporate defendant must be served “in the manner prescribed by Rule
4(e)(1) for serving an individual[.]” Moreover, under subsection (B), the summons and complaint
may be served “by delivering a copy of the summons and of the complaint to an officer, a managing
or general agent, or any other agent authorized by appointment or by law to receive service of
process and—if the agent is one authorized by statute and the statute so requires—by also mailing
a copy of each to the defendant.” Fed. R. Civ. P. 4(h)(1)(B). Fed. R. Civ. P. 4. Rule 4(e)(1) states
that an individual may be served by “following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the district court is located or where
service is made[.]”
New York law mandates that “[t]he secretary of state shall be the agent of every domestic
corporation and every authorized foreign corporation upon whom process against the corporation
may be served.” N.Y. Bus. Corp. Law (“NYBCL”) § 304(a). Indeed, “[n]o domestic or foreign
corporation may be formed or authorized to do business in this state under this chapter unless in
its certificate of incorporation or application for authority it designates the secretary of state as
such agent.” N.Y. Bus. Corp. Law § 304(b). Lastly, NYBCL section 306 provides that:
Service of process on the secretary of state as agent of a domestic
… corporation shall be made…[by] [p]ersonally delivering to and
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leaving with the secretary of state or a deputy, or with any person
authorized by the secretary of state to receive such service, at the
office of the department of state in the city of Albany, duplicate
copies of such process together with the statutory fee…. Service of
process on such corporation shall be complete when the secretary of
state is so served.
N.Y. Bus. Corp. L. § 306(b)(1).
Moreover, New York law provides that service of process may be effected on an individual
by delivering the summons to the person or a person or suitable age and discretion at the person’s
dwelling or place of business. See N.Y. C.P.L.R. § 308(1)-(2). If service cannot be made in either
of those ways, the law provides that service may be effected “by affixing the summons to the door
of either the actual place of business, dwelling place or usual place of abode … of the person to be
served and by either mailing the summons to such person at his or her last known residence or by
mailing the summons by first class mail to the person to be served at his or her actual place of
business in an envelope bearing the legend ‘personal and confidential.’” Id. § 308(4).
Here, Plaintiffs properly served KA Investigations in this action. On June 24, 2022,
Plaintiffs served the Secretary of State with the Summons and Complaint. (Aff. of Service 5, ECF
35-7.) Further, on September 27, 2022, the parties filed a stipulation stating that “Defendant[s]
waive defense[s] based on purported defects of service of process” and agreed to an extension of
time for Defendants to file an answer. (Stipulation, ECF 6.) Accordingly, KA Investigations has
been properly served in this action.
“[A] civil action may be brought in a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is located.” 28 U.S.C. § 1391(b)(1). A
corporation is deemed to be a resident of “any district” in “a state which has more than one judicial
district and in which . . . [that] corporation is subject to personal jurisdiction at the time an action
is commenced.” 28 U.S.C. § 1391(d). As alleged, KA Investigations is a New York limited liability
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company with a principal place of business in Staten Island, and performed its business in both
Queens and Brooklyn, New York. (Compl. ¶¶ 12-26.) Alexander is a New York resident. (Id. at ¶
28.) Therefore, venue in the Eastern District of New York is proper. See 28 U.S.C § 1391(b)(1).
III. 	DEFAULT JUDGMENT STANDARD
Under Rule 55 of the Federal Rules of Civil Procedure, there are two steps to entering a
default judgment. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993). First, the
Clerk of Court enters the default pursuant to Rule 55(a) by notation of the party’s default on the
Clerk’s record of the case. Fed R. Civ. P. 55(a) (providing that “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.”). This first step is
nondiscretionary. See United States v. Conolly, 694 Fed. App’x 10, 12 (2d Cir. 2017). Second, after
the Clerk of the Court enters a defendant’s default, the court may enter a default judgment. See
Fed R. Civ. P. 55(b). Here, on May 16, 2024, the Clerk of the Court entered default against KA
Investigations after it failed to appear or otherwise defend in this action. (ECF 31.) To date, KA
Investigations has not appeared or moved to vacate the entry of default.
Whether or not a default judgment is issued is up to the discretion of the court. When
evaluating a plaintiff’s application for a default judgment, “a court is required to accept all [ ]
factual allegations as true and draw all reasonable inferences in [plaintiff’s] favor.” Finkel, 577
F.3d at 84. “Nevertheless, it remains for the court to consider whether the unchallenged facts
constitute a legitimate cause of action, since a party in default does not admit conclusions of law.”
Labarbera v. ASTC Labs., Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y. 2010) (internal quotations and
citations omitted); see TAGC Mgmt., LLC v. Lehman, Lee & Xu Ltd., 536 Fed. App’x 45, 46 (2d
Cir. 2013) (“[P]rior to entering default judgment, a district court is required to determine whether
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the plaintiff’s allegations establish the defendant's liability as a matter of law.”) (internal quotations
and citations omitted).
“Default judgments are generally disfavored and are reserved for rare occasions.” City of
New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (quoting Enron Oil Corp.,
10 F.3d at 96) (internal quotation marks omitted). While the Second Circuit has recognized the
“push on a trial court to dispose of cases that, in disregard of the rules, are not processed
expeditiously [and] ... delay and clog its calendar,” it has held that a district court must balance
that interest with its responsibility to “afford[] litigants a reasonable chance to be heard.” Enron
Oil Corp., 10 F.3d at 95-96. Thus, considering the “oft-stated preference for resolving disputes on
the merits,” doubts should be resolved in favor of the defaulting party. See id. Accordingly, a
plaintiff is not entitled to a default judgment as a matter of right simply because defendants are in
default. See Erwin DeMarino Trucking Co. v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993)
(noting that courts must “supervise default judgments with extreme care to avoid miscarriages of
justice.”).
IV. 	LIABILITY
In order to establish a claim under FLSA, the “plaintiff must prove the following: (1) the
defendant is an employer subject to ... FLSA; (2) the plaintiff is an ‘employee’ within the meaning
of ... FLSA; and (3) the employment relationship is not exempted from ... FLSA.” Pichardo v. El
Mismo Rincon Latino Corp., No. 17-cv-7439 (FB) (SJB), 2018 WL 4101844, at *3 (E.D.N.Y. Aug.
7, 2018) (citation omitted), R. & R. adopted, 2018 WL 4100480 (E.D.N.Y. Aug. 28, 2018).
Employers are subject to the FLSA’s minimum wage and overtime requirements if they
have employees who are either personally “engaged in commerce or in the production of goods
for commerce” (“individual coverage”) or “employed in an enterprise engaged in commerce or in
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the production of goods for commerce” (“enterprise coverage”). 29 U.S.C. §§ 206(a), 207(a)(1);
Shim v. Millennium Grp., No. 08-cv-4022 (FB) (VVP), 2009 WL 211367, at *2 (E.D.N.Y. Jan. 28,
2009). Plaintiffs have not alleged that they were “personally performing work involving or related
to the movement of persons or things ... between states.” Pichardo, 2018 WL 4101844, at *3.
Accordingly, individual coverage does not apply here.
Plaintiffs attempt to allege enterprise coverage by asserting that KA Investigations “has
been a business or enterprise engaged in interstate commerce employing more than two (2)
employees 	and 	earning 	gross 	annual 	sales 	over 	$500,000.00.” 	(Compl. 	¶¶ 	27, 	32 	(KA
Investigations “was and continues to be an ‘enterprise engaged in commerce’ within the meaning
of the FLSA and the NYLL.”).) Enterprise coverage exists where an employer has (1) employees
engaged in commerce or in the production of goods for commerce; and (2) an annual gross volume
of sales greater than $500,000. 29 U.S.C. § 203(s)(1)(A). “In other employment contexts, courts
in this District have accepted such ‘conclusory allegations of enterprise coverage’ on a motion for
default judgment ‘where it may be inferred from the type of business enterprise that it was engaged
in interstate commerce.’” Kennedy v. Imperial Sec. & Consultants LLC, No. 23-cv-2790 (DLI)
(LB), 2024 WL 3387261, at *3 (E.D.N.Y. May 1, 2024) (quoting Cabrera v. Canela, 412 F. Supp.
3d 167, 179 (E.D.N.Y. 2019)), R. & R. adopted, 2024 U.S. Dist. LEXIS 99508 (E.D.N.Y. June 4,
2024); see Oyenuga v. Presidential Sec. Servs. LLC, No. 22-cv-4972, 2023 WL 7687237, at *3
(E.D.N.Y. Sept. 25, 2023) (collecting cases in which courts inferred enterprise coverage for
cleaning company, grocery store, and restaurant). In the context of security companies, however,
courts have declined to infer enterprise coverage where a plaintiff merely reiterates the statutory
language under FLSA and alleges no specific facts tying the employer to interstate activity, other
than the “job description of security personnel.” Oyenuga, 2023 WL 7687237, at *4 (quotations
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omitted). “Unlike a grocery store or a restaurant, security services and a security person do not
necessarily have the requisite ties to interstate commerce.” Id. at *5. “Instead, a security guard
plaintiff must allege facts linking a security company defendant to interstate commerce.” Kennedy,
2024 WL 3387261, at *4; Sarr v. VEP Assocs. LLC, No. 22-cv-4386 (ENV) (MMH), 2024 WL
1251600, at *4 (E.D.N.Y. Mar. 25, 2024) (declining to infer enterprise coverage where security
guard plaintiff “fail[ed] to provide any additional factual information regarding the nature of the
security services provided, any tools or implements used to perform those services, or how the
services connect to interstate commerce.”), R. & R. adopted, 2024 U.S. Dist. LEXIS 68617
(E.D.N.Y. Apr. 15, 2024). “This Court is not alone in finding it too attenuated to infer enterprise
coverage based solely on the job description of security personnel.” Oyenuga, 2023 WL 7687237,
at *4 (internal quotation marks omitted) (collecting cases in which courts could or could not infer
enterprise coverage if plaintiffs alleged specific facts about, inter alia, the tools and supplies used
to perform security guard duties, or the nature of the protected locations).
Here, while the Complaint states that Gittens and Pantry were employed as security guards
and Coombs was employed as a flagger, Plaintiffs do not allege that KA Investigations purchased
or handled out-of-state supplies or that Plaintiffs or other employees used materials that moved in
interstate commerce. (Compl. ¶¶ 50, 69, 100.) While the Complaint lists various locations
throughout New York City where KA Investigations “performed subcontracting work”, the
Complaint fails to specify the type of subcontracting work performed, including whether such
work involved interstate commerce. (Compl. ¶¶ 13-26.) “If Plaintiff had asserted that [the
Defendant employer] purchased or handled out of state supplies, then the pleading requirements
would have been fulfilled.” Oyenuga, 2023 WL 7687237, at *5; see also Jones v. E. Brooklyn Sec.
Servs. Corp., No. 11-cv-1021 (JG) (SMG), 2012 WL 3235784, at *4 (E.D.N.Y. Aug. 7, 2012)
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(finding enterprise coverage for security company where plaintiff alleged that employees handled
materials that moved through interstate commerce, such as uniforms, walkie-talkies, and
flashlights.) Without more, the Court cannot infer that KA Investigations is an enterprise subject
to the FLSA, an essential element to Plaintiffs’ FLSA claims. Accordingly, the Court respectfully
recommends that the motion for default judgment should be denied as to Plaintiffs’ FLSA claims,
and that Plaintiffs be permitted to file and serve an amended complaint alleging facts sufficient to
impose FLSA enterprise coverage against KA Investigations.
If Plaintiffs do not amend their complaint or assert that they do not satisfy the interstate
commerce requirement, this Court recommends declining to exercise supplemental jurisdiction
over the NYLL claims. See Oyenuga, 2023 WL 7687237 at *5 n.3 (recommending that the Court
decline to exercise supplemental jurisdiction over NYLL claims “[i]n the event that Plaintiff does
not amend his complaint or asserts that he cannot meet the interstate commerce requirement” under
FLSA); Kennedy, 2024 WL 3387261, at *4 n.7.
V. 	CONCLUSION
Based on the foregoing, the Court respectfully recommends that Plaintiffs’ motion against
Defendant KA Investigations denied without prejudice. The Court further recommends granting
Plaintiffs thirty days to file an amended complaint that cures the deficiencies noted herein.
A copy of this Report and Recommendation is being served on Plaintiffs via ECF. The
Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to
Defendants at the following addresses forthwith: (1) 534 Van Duzer Street, Staten Island, NY
10304; (2) One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231; and (3) 637
Eastwood Drive, Gastonia, NC 28054. Plaintiffs are also directed to mail a copy of this Report and
Recommendation to Defendants and to file proof of service on the docket by January 12, 2026.
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Within 14 days of service, any party may serve and file specific written objections to this
Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Any requests for an
extension of time to file objections shall be directed to Chief Judge Brodie. If a party fails to object
timely to this Report and Recommendation, it waives any right to further judicial review of this
decision. See Miller v. Brightstar Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022).
SO ORDERED.
Brooklyn, New York
January 6, 2026
____________________________
LARA K. ESHKENAZI
United States Magistrate Judge
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