Llumitasig et al v. The Barrier Group Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LUZMILA V. LLUMITASIG et al.,
Plaintiffs,
-against-
THE BARRIER GROUP INC. et al.,
Defendants.
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MEMORANDUM & ORDER
24-CV-2054 (EK)(CHK)
ERIC KOMITEE, United States District Judge:
Before the Court are plaintiffs’ motion for a default
judgment and defendants’ motion to vacate the entry of default.
The Court referred these motions to Magistrate Judge Bloom for a
Report and Recommendation (“R&R”). 	Judge Bloom recommended that
the Court grant plaintiffs’ motion in part and deny defendants’
motion in its entirety. 	After a change in counsel, defendants
filed several objections to the R&R. 	These objections rely on
different arguments than the ones defendants made to Judge Bloom
and could have been raised before her. 	For the reasons outlined
below, the Court adopts the R&R in full.
Background
This order assumes familiarity with the factual
background of this wage-and-hour case. 	A more thorough
explication of the underlying facts appears in Judge Bloom’s
R&R. 	See ECF No. 20, at 2. 	Before Judge Bloom, defendants —
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two corporations and their owner — argued that their default was
not willful, and was instead caused by an inability to promptly
retain counsel. 	Defs.’ Mem. 2-3, ECF No. 17-2. 	Defendants
admitted to being aware of this lawsuit, but claimed that the
counsel they had initially attempted to retain was “unable to
handle the case because she was pregnant.” 	Reich Aff. ¶ 8, ECF
No. 17-3. 	Defendants also argued that they had a meritorious
defense in this case, namely that they “paid out all wages and
overtime to which the Plaintiffs were entitled.” 	Defs.’ Mem. 2.
They pointed to an affidavit from the individual defendant, Joel
Reich, and purported to attach a “proposed Answer.” 	Id.; R&R 8
They did not so attach, nor did they supplement the record upon
plaintiffs highlighting their failure to do so. 	R&R 8 & n.4.
Judge Bloom denied defendants’ motion to vacate and
granted in part the motion for a default judgment. 	These
objections followed.
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)(C). 	The court reviews
de novo those portions of an R&R to which a party has
specifically objected. 	Id.; Fed. R. Civ. P. 72(b)(3). 	However,
“[a] proper objection generally may not raise new arguments not
previously made before the magistrate judge.” 	Nambiar v. Cent.
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Orthopedic Grp., LLP, 158 F.4th 349, 359 (2d Cir. 2025); see
also United States v. Gladden, 394 F. Supp. 3d 465, 480
(S.D.N.Y. 2019) (“In this circuit, it is established law that a
district judge will not consider new arguments raised in
objections to a magistrate judge’s report and recommendation
that could have been raised before the magistrate but were
not.”).1 	Where “no timely objection has been made, a district
court need only satisfy itself that there is no clear error on
the face of the record.” 	State Farm Mut. Auto. Ins. Co. v.
Grafman, 968 F. Supp. 2d 480, 481 (E.D.N.Y. 2013).
Discussion
Defendants raise several objections. 	Two — that the
default was not willful and that there are meritorious defenses
— rely on arguments that were not before Judge Bloom, and are
thus not properly before the Court as objections. 	Ignoring
these objections, the Court would adopt Judge Bloom’s well-
reasoned conclusions as to the default whether reviewing de novo
or for clear error. 	Indeed, even considering the objections,
the Court will adopt the R&R in its entirety.
A. 	Motion to Vacate Default
District courts assess three factors when considering
whether to relieve a party from a default: “the willfulness of
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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the default, the existence of a meritorious defense, and the
level of prejudice that the non-defaulting party may suffer
should relief be granted.” 	Pecarsky v. Galaxiworld.com Ltd.,
249 F.3d 167, 171 (2d Cir. 2001). 	Willfulness “carries the most
weight.” 	In re Orion Healthcorp, Inc., 95 F.4th 98, 104 & n.4
(2d Cir. 2024).
1. 	Willfulness
Defendants first object that their default was not
willful and was instead a misunderstanding. 	Defs.’ Objs. 7, ECF
No. 27. 	Reich declares that he conflated this case with a
separate wage-and-hour case filed two years ago in the Southern
District in which he is a defendant, Camacho v. The Barrier Grp.
Inc., 22-CV-1156 (S.D.N.Y.). 	Reich Decl. ¶ 3, ECF No. 27-1. 	He
adds that he expected his retained counsel in that matter, Farva
Scott — the same counsel who filed these objections — to
represent him. 	Id. ¶ 5. 	This is a different explanation than
the one he raised before Judge Bloom.2 	Accordingly, the Court
need not consider it. 	See Gladden, 394 F. Supp. 3d at 480.
Before Judge Bloom, Reich — represented by different counsel —
failed to obtain an affidavit from Scott. 	See R&R 6. 	Reich
2 This explanation also contradicts what defendants argued to Judge
Bloom. 	There, Reich claimed that he “quickly moved to retain counsel” after
being served in March 2024, and claimed his lawyer (apparently referring to
Ms. Scott) “was unable to handle the case because she was pregnant.” 	Reich
Decl. ¶¶ 6-8, ECF No. 17-3. 	However, Ms. Scott’s own declaration indicates
that “[a]t no point did [Reich] inform me that a second, distinct . . .
lawsuit had been filed against him . . . .” 	Scott Decl. ¶ 4, ECF No. 27-2.
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could have raised his argument, as Scott was appearing in
Camacho throughout the pendency of this case. 	See generally
Docket, Camacho v. The Barrier Grp. Inc., 22-CV-1156 (S.D.N.Y.)
(indicating court appearances and filings from 2024 and 2025).
Even considering this explanation, however, it fails.
To be sure, “confusion resulting from the time proximity and
subject matter similarity of . . . two proceedings” can
constitute excusable neglect sufficient to vacate a default.
Davis v. Musler, 713 F.2d 907, 915 (2d Cir. 1983). 	But in
Davis, and other decisions excusing default on these grounds,
the two proceedings generally involved the same parties. 	In
Davis, for example, the second lawsuit arose out of a
defendant’s failure to satisfy the judgment of an earlier
lawsuit brought by the same plaintiff. 	713 F.2d at 908-09; see
also Gil v. Frantzis, No. 17-CV-1520, 2019 WL 4784674, at *6
(E.D.N.Y. Oct. 1, 2019) (excusing default after same plaintiff
had brought parallel administrative proceedings); Murray Eng’g,
P.C. v. Windermere Props. LLC, No. 12-CV-52, 2013 WL 1809637, at
*4 (S.D.N.Y. Apr. 30, 2013) (excusing default after same
plaintiff had brought state and federal cases). 	Here, the
complaint was filed two years after the Camacho complaint, and
involved different plaintiffs.
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2. 	Meritorious Defenses
Defendants’ second objection is that they have a
meritorious defense in this case. 	Defs.’ Objs. 8-11. 	They now
provide a proposed answer, and explain that they cannot provide
any evidence in support thereof (that is, payroll records),
because they must invoke the Fifth Amendment right against self-
incrimination in light of an ongoing criminal case involving
Reich. 	See Reich Decl. ¶ 13; Compl., United States of America
v. Reich, No. 24-CR-335, ECF No. 2 (S.D.N.Y. Oct. 17, 2023).
Again, though Reich could have raised these arguments before
Judge Bloom — he was arraigned months before this case
commenced, and was on notice that his materials did not include
an answer — neither argument was raised. 	Gladden, 394 F. Supp.
3d at 480.
Even considering these arguments, however, defendants
have not suggested the existence of a meritorious defense. 	“A
defendant seeking to vacate an entry of default must present
some evidence beyond conclusory denials to support his defense.”
Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 98 (2d Cir. 1993).
The defendant need not show “a likelihood that [the defense]
will carry the day, but whether the evidence submitted, if
proven at trial, would constitute a complete defense.” 	Id.
Reich has now declared that plaintiffs “typically
worked . . . for no more than eight hours per day, often less”
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and that “[m]ost job sites closed by 4:00 PM, precluding
overtime.” 	Reich Decl. ¶ 9. 	But despite admitting to the
existence of payroll records, id. ¶ 10, he has not provided them
to the Court. 	As Judge Bloom explained, R&R 8-9, courts have
found that a defendant lacks a meritorious defense when they
decline to provide records that should be “readily available.”
See, e.g., Lopez v. Mohammed, No. 14-CV-4443, 2017 WL 4277154,
at *10 (E.D.N.Y. Sept. 26, 2017); Am. Transit Ins. Co. v. Bilyk,
546 F. Supp. 3d 192, 200 (E.D.N.Y. 2021). 	And defendants’
invocation of the Fifth Amendment fails, as the records belong
to the corporations, and “there simply is no situation in which
a corporation can avail itself of the Fifth Amendment
privilege.” 	In re Grand Jury Subpoena Issued June 18, 2009, 593
F.3d 155, 158 (2d Cir. 2010).
B. 	The Remaining Objections
We need not address defendants’ “objection” agreeing
with Judge Bloom’s conclusion that the prejudice factor weighs
in their favor. 	Defs.’ Objs. 8. 	Defendants next object that
the motion for a default judgment is “moot.” 	Id. at 11-13. 	But
this objection fails, as it presumes that the Court first
excuses the default. 	Finally, defendants object that they are
not liable, as they have paid overtime wages. 	Id. at 13-14.
But this, too, assumes the Court excuses the default. 	See Perez
v. E.P.E. Enter. Corp., No. 22-CV-6353, 2024 WL 1632255, at *11
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(E.D.N.Y. Apr. 15, 2024) (“When a defendant defaults, they fail
to raise any affirmative defense against the plaintiff's
overtime pay claim . . . .”).
C. 	The R&R’s Remaining Recommendations
Neither party filed any other objections to the R&R’s
conclusions, including as to calculation of damages, or denial
of the default judgment motion as to plaintiffs’ wage-statement
and wage-notice claims. 	Finding no error in those
recommendations, the Court adopts them in their entirety.
Damages will be awarded as follows: $89,435.00 for Llumitasig
for unpaid overtime wages; $89,435.00 for Llumitasig for
liquidated damages; $60,140.00 for Cruz Trejo for unpaid
overtime wages; $60,140.00 for Cruz Trejo for liquidated
damages; $77,112.50 for Hivan Lopez for unpaid overtime wages;
$77,112.50 for Hivan Lopez for liquidated damages; $65,022.50
for Fredy Lopez for unpaid overtime wages; and $65,022.50 for
Fredy Lopez for liquidated damages.
Llumitasig will be awarded prejudgment interest in the
amount of $22.05 per day from November 24, 2021 until the entry
of judgment; Cruz Trejo will be awarded prejudgment interest in
the amount of $14.83 per day from March 31, 2022 through the
entry of judgment; Hivan Lopez will be awarded prejudgment
interest in the amount of $19.01 per day from December 15, 2021
through the entry of judgment; and Fredy Lopez will be awarded
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prejudgment interest in the amount of $16.03 per day from March
9, 2022 through the entry of judgment. All plaintiffs will also
be awarded post-judgment interest at the rate set forth under 28
U.S.C. § 1961.
Conclusion
For the foregoing reasons, the Court adopts the R&R in
full. 	The Clerk of Court is directed to enter judgment and
close this case.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 13, 2026
Brooklyn, New York
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