Torres v. L&M Drywall Inc., et al.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ERICK TORRES, individually and on behalf of
all others similarly situated.,
Plaintiffs, 	REPORT AND
RECOMMENDATION
- against - 	21 CV 4609 (PKC) (PCG)
L&M DRYWALL INC., and MARIO BENITEZ
BOGADO, individually,
Defendant.
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CROSS-GOLDENBERG, United States Magistrate Judge:
On August 16, 2021, plaintiff Erick Torres, individually and on behalf of all others
similarly situated, commenced this action, alleging violations of the Fair Labor Standards Act of
1938, 29 U.S.C. 201 et seq. (“FLSA”), the New York Labor Law, N.Y. Lab. Law, Art. 19 §§ 650
et seq. (“NYLL”), and Rules and Regulations of the State of New York (“NYCRR”) §§ 142-2.
(ECF No. 1 (“Compl.”)). Following the filing of the Complaint, a number of other individuals
filed Notices of Filing Consent to Join (ECF Nos. 8, 10, 11, 12, 13, 14, 15, 16).1
Currently pending before this Court on referral from the Honorable Pamela K. Chen is
plaintiff’s amended motion for default judgment. (See ECF No. 67). 	For the reasons set forth
below, the Court respectfully recommends that the district court deny plaintiff’s motion for
default judgment as to the opt-in plaintiffs and deny plaintiff’s motion for default judgment as to
plaintiff Torres without prejudice to refile in accordance with Local Civil Rules 7.1 and 55.2.
1 The individuals who filed consents to join included Gonzalo Gimenez (ECF No. 8), Gregory Johnson (ECF No.
10), Veronica Perez Lopez (ECF No. 11), Jesus Alvarado (ECF No. 12), Fabio Servian Silvero (ECF No. 13), Juan
Carlos Romero (ECF No. 14), Mauro Sanchez (ECF No. 15) and Alexander Aragon (ECF No. 16). Subsequently,
on March 2, 2023, Gregory Johnson, Gonzalo Gimenez, Jesus Alvarado and Mario Sanchez withdrew their consents.
(ECF Nos. 47-50).
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BACKGROUND
The Court assumes familiarity with the background of this case in light of Magistrate
Judge Cheryl L. Pollak’s Report and Recommendation filed on February 27, 2025,
recommending that the district court deny plaintiff’s first amended motion for default judgment2
without prejudice for failure to comply with Local Civil Rules 7.1 and 55.2. (ECF No. 65). On
March 13, 2025, prior to the district court’s March 17, 2025 adoption of Judge Pollak’s Report
and Recommendation, plaintiffs renewed their motion for default judgment. (See ECF No. 67).
On March 17, 2025, the district court referred the second amended motion for default judgment
for report and recommendation. (Electronic Order, dated 3/17/2025).
DISCUSSION
A. Local Rules 55.2 and 7.1
Local Civil Rule 55.2 sets forth the procedures for filing a motion for default judgment in
this District. That Rule requires that a movant’s motion for default judgment must append “(1)
an affidavit or declaration showing that: (A) the clerk has entered default under Local Civil Rule
55.1; (B) the party seeking default judgment has complied with the Servicemembers Civil Relief
Act, 50a U.S.C. § 521; and (C) the party against whom judgment is sought is not known to be a
minor or an incompetent person, . . .” as well as “(2) . . . the papers required by Local Rule 7.1,
including a memorandum of law, a proposed order detailing the proposed judgment to be
entered,” and “(3) a certificate of service stating that all documents in support of the request for
default judgment . . . have been . . . served on, or mailed . . . [to] the party against whom default
judgment is sought.” Loc. Civ. R. 55.2(a)(1)-(3).
2 Plaintiffs initially filed a motion for default judgment on March 2, 2023. (ECF No. 51). Plaintiffs withdrew that
motion on February 13, 2024. (ECF No. 56).
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Local Civil Rule 7.1 governs motion practice in this District. Pursuant to Rule 7.1,
filings for a dispositive motion must include:
(1) A notice of motion, or an order to show cause signed by the
court, which shall specify the applicable rules or statutes
pursuant to which the motion is brought, and shall specify the
relief sought by the motion;
(2) A memorandum of law, setting forth the cases and other
authorities relied upon in support of the motion, and divided,
under appropriate headings, into as many parts as there are
issues to be determined; and
(3) Supporting affidavits and exhibits thereto containing any
factual information and portions of the record necessary for the
decision of the motion.
The Court recommended denial of plaintiff’s first amended motion for default judgment
because plaintiffs “ha[d] not included an affidavit that included the statements required in Rule
55.2(a)(1); he ha[d] not appended a proposed form of judgment to his motion; and he never filed
a certificate of service indicating that his motion papers were served on, or that he attempted
service upon, defendants.” (ECF No. 65 at 6–7).
The Court recommended denial of plaintiff’s first amended motion for default judgment on
the additional ground that plaintiff failed to submit a sufficient memorandum of law in support of
his initial motion for default judgment and failed to include exhibits containing damages
calculations or a proper fee application. (ECF No. 65 at 8). In particular, the Court found that
plaintiffs’ memorandum of law was devoid of legal argument. (Id.) The Court also held that,
although plaintiff’s declarations contained detailed allegations as to wages owed, “without a
damages chart indicating the exact weeks and days on which plaintiffs were owed wages,
defendants cannot adequately prepare to contest, and the Court cannot adequately assess,
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plaintiffs’ allegations.” (Id. at 9). Lastly, the Court held that plaintiff failed to include supporting
documentation for his attorneys’ fee application. (Id.)
Plaintiff filed a second amended motion for default judgment on March 13, 2025 (ECF
No. 67), along with a proposed order (ECF No. 68-2) and a certificate of service (ECF No. 69).
In his second amended motion, plaintiff includes a memorandum of law containing adequate
legal argument laying out the standards for liability under the FLSA and NYLL. (See ECF No.
67 (“Mem.”) ¶¶ 7-12). It also includes contemporaneous billing records to support counsel’s
application for costs.3 (See ECF No. 67-7).
Still missing from plaintiff’s moving papers, however, is a declaration or affidavit
compliant with Local Civil Rule 55.2(a)(1).4 Plaintiff has also failed to include a damages chart
detailing the exact weeks and days on which plaintiffs are owed damages. Although plaintiff did
provide more detailed damages calculation in the motion, without details of the exact weeks and
dates on which plaintiff was owed wages, neither the Court nor defendants can determine the
accuracy of counsel’s calculations, including whether plaintiff indeed did work 48 hours of
overtime. Moreover, in his Amended Complaint, plaintiff alleges that he worked for defendants
from July to December 2020, working in excess of 40 hours per week for the entire period.
(ECF No. 37 (“Am. Compl.”) ¶¶ 26, 29-34). However, his declaration says he only worked for
defendants from September through December 2020, only working in excess of 40 hours per
week during certain weeks. (ECF No. 67-3 ¶¶ 2, 6-8).
3 Counsel is only seeking reimbursement for costs. They are not seeking recovery of attorneys’ fees. (See ECF No.
67 ¶ 34),
4 This, alone, is a basis for denying the motion. See, Windward Bora, LLC v. Ortiz, No. 21 CV 4154, 2022 WL
3648622, at *5 (E.D.N.Y. July 5, 2022), report and recommendation adopted by, 2022 WL 3647586 (E.D.N.Y. Aug.
24, 2022).
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Accordingly, the Court respectfully recommends that the district court deny plaintiff’s
second amended motion for default judgment for failure to comply with Local Rules 55.2 and
7.1 without prejudice and with leave to renew in compliance with this Order.
B. FLSA Collective
In addition to seeking damages for plaintiff Erick Torres, plaintiff’s second amended
motion for default judgment seeks damages for opt-in plaintiffs Ramon Riveros, Juan Romero,
and Veronica Lopez. (Mem. ¶¶ 23-31). Although several opt-in plaintiffs filed notices of
consent to join this action as a FLSA collective action (ECF Nos. 3, 8-16), none of them are
named in the Second Amended Complaint. (See ECF No. 37). Moreover, plaintiff has not
requested certification of a FLSA collective action, nor has the district court certified it as such.
“[C]ourts in this Circuit have held that ‘a default judgment is not warranted as to any
potential opt-in plaintiffs who may subsequently consent to become a party to [an] action’ absent
an amended complaint specifically naming the opt-in parties.’” Baca v. 24 Hour Laundromat,
No. 15 Civ. 6707 (JFB) (ARL), 2017 WL 1216574, at *1 (E.D.N.Y. Mar. 31, 2017) (quoting
Rodriguez v. Almighty Cleaning, Inc., 784 F. Supp. 2d 114, 133 (E.D.N.Y. 2011). “Indeed, ‘[i]n
cases where a collective action has not been certified, courts in this district have repeatedly held
that without service of an amended pleading that incorporates the opt-in plaintiffs’ claims, there
is no legal basis upon which to award damages, attorney’s fees, and costs to the opt-in
plaintiffs.’” Suriel v. Cruz, No. 20 CV 8442, 2022 WL 1750232, at *6 (S.D.N.Y. Jan. 10, 2022)
(quoting Jiao v. Kitaku Japanese Rest., Inc., No. 16 CV 2694, 2020 WL 2527588, at *3
(E.D.N.Y. Mar. 13, 2020), report and recommendation adopted by, 2020 WL 2523109 (E.D.N.Y.
May 18, 2020)), report and recommendation adopted by, 2022 WL 1751163 (S.D.N.Y. May 31,
2022).
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Where opt-in plaintiffs consent to join prior to a default judgment motion being filed, the
typical course of action is to grant leave to amend the complaint, while deferring a ruling on
default judgment as to any named plaintiffs until the opt-in plaintiffs are formally joined. See
Jiao, 2020 WL 2527588, at *4 (collecting cases). 	“Courts have noted the uncertainty as to
whether they ‘could continue to adjudicate the FLSA collective action after granting [the named]
Plaintiff default judgment’ because doing so may ‘trigger the mootness doctrine.’” Id. (quoting
Bhagwat v. Queens Carpet Mall, Inc., 14 CV 5474, 2017 WL 1365121, at *6 (E.D.N.Y. Mar. 10,
2017)). Thus, fairness considerations typically counsel in favor of deferring entry of default
judgment.
Here, fairness weighs in favor of denying default judgment as to both plaintiff Torres and
the opt-in plaintiffs. Although other cases have denied opt-in default judgment motions while
entering default for the named plaintiff to avoid delaying the plaintiff’s relief, see, e.g., Jiao,
2020 WL 2527588, at *4, such delay is not a consideration here. Instead, the Court has already
determined that plaintiff’s allegations are inconsistent and amending the Complaint would
provide an avenue for plaintiff to cure these deficiencies. Additionally, there is no evidence that
plaintiff intends to now proceed on an individual basis because he seeks default judgment for
both himself and the opt-in plaintiffs. See, Tejada v. La Selecta Bakery, Inc., No. 17 CV 5882,
2019 WL 2343909, at *2 (E.D.N.Y. May 1, 2019).
Accordingly, in addition to the Court’s recommendation to deny default judgment for
failure to comply with Local Rules, the Court respectfully recommends that the district court
deny the motion and provide plaintiffs leave to amend the Complaint to properly join the opt-in
plaintiffs and to fix any inconsistencies in the Complaint, and provide leave to renew the motion
in compliance with this Order. Specifically, the Court recommends that plaintiff be ordered to
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file an amended complaint properly joining the opt-in plaintiffs and fixing any inconsistencies in
the pleadings. If plaintiffs choose to renew their motion for default judgment following proper
service of an amended complaint, they must comply with Local Rule 7.1 and 55.2,
CONCLUSION
For the reasons stated above, the Court respectfully recommends that the Court deny
plaintiff’s default judgment motion without prejudice and provide leave to renew following
compliance with this opinion. Specifically, the Court recommends that plaintiff be ordered to
file an amended complaint properly joining the opt-in plaintiffs and fixing any inconsistencies in
the pleadings. If plaintiffs choose to renew their motion for default judgment following proper
service of an amended complaint, they must comply with Local Rule 7.1 and 55.2.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method
for computing time). Failure to file objections within the specified time waives the right to
appeal the district court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.
2008).
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
February 6, 2026 /s/ Peggy Cross-Goldenberg
Peggy Cross-Goldenberg
United States Magistrate Judge
Eastern District of New York
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