Wen v. Hair Party 24 Hours Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

GE CHUN WEN, on behalf of herself and others similarly situated, 15cv10186 (ER) (DF) Plaintiff, ORDER -against- HAIR PARTY 24 HOURS INC. d/b/a Hair & Spa Party 24 Hours; HAIR 24 HOURS, INC. d/b/a Hair & Spa Party 24 Hours; JIHEE SPROCH KIM a/k/a Jenny Kim a/k/a Ji Xi Kin and JIN WOO AHN a/k/a Jinu Sproch Defendants.

DEBRA FREEMAN, United States Magistrate Judge: On January 24, 2020, this Court issued a Scheduling Order for a Damages Inquest, indicating that if defendants Hair Party 24 Hours Inc., d/b/a Hair & Spa Party 24 Hours (“Hair Party”), Hair 24 hours, Inc., d/b/a Hair & Spa Party 24 Hours (“Hair 24”), Jihee Sproch Kim a/k/a Jenny Kim a/k/a Ji Xi Kin (“Kim”) and Jin Woo Ahn a/k/a Jinu Sproch (“Ahn), (collectively, “Defendants”) wished to contest the amount of damages and/or attorneys’ fees that should be awarded to plaintiff Ge Chun Wen (“Plaintiff”), upon Defendants’ default in this wage-and-hour case, then they should respond to Plaintiff’s damages and fee submissions (which had been filed in conjunction with Plaintiff’s motion for a default judgment) no later than February 24, 2020. (See Dkt. 47.) As of this date, Defendants have not filed any such response, and thus it would ordinarily be appropriate for this Court to determine Plaintiff’s damages and attorneys’ fees based on Plaintiff’s submissions alone.

In reviewing Plaintiff’s submissions, however, this Court notes that, although John Troy, Esq., counsel for Plaintiff, stated by Declaration that “Damages Calculation Spreadsheets, detailing the amount of money Defendants owe Plaintiff pursuant to both the [Fair Labor Standards Act] and [the New York Labor Law] . . . are attached with the Statement of Damages” (Declaration of John Troy in Support of Plaintiff’s Motion for Default Judgment, dated Nov. 27, 2018 (Dkt. 33) ¶ 15), it appears that Plaintiff neglected to submit the referenced spreadsheets (see generally Statement of Damages (Dkt. 31) and exhibits thereto). Accordingly, it is hereby ORDERED as follows: 1. No later than November 30, 2020, Plaintiff is directed to make a supplemental submission with respect to damages, by filing the referenced spreadsheets on the Docket of this action. By that same date, Plaintiff is also directed to file proof of service on Defendants of: a. a copy of its supplemental submission, and b. a copy of this Order, together with the attached filing instructions.

2. If Defendants wish to respond to Plaintiff’s damages calculations, which will presumably be based on the sworn statements that have been made by Plaintiff regarding the hours he worked and the pay he received (see Affidavit of Ge Chun Wen in Support of Default Judgment Motion, sworn to Sept. 6, 2018 (Dkt. 33-1)), but which may be clarified by the damages spreadsheets that this Court has now directed Plaintiff to serve and file, then Defendants may submit a response to Plaintiff’s supplemental submission by December 18, 2020.

3. As noted in this Court’s prior Order, defendants Hair Party and Hair 24 may not, as corporate entities, appear in this Court without an attorney. For this reason, any response to Plaintiff’s supplemental submission that they may wish to file, including any request for a hearing with respect to that submission, must be made through counsel, in order for that response to be considered by the Court.

4. If the individual defendants, Kim and Ahn, wish to respond to Plaintiff's supplemental submission pro se (in other words, without counsel), then they may file responses by sending them to this Court’s Pro Se Office in accordance with the attached filing instructions, which apply during the current period of the COVID-19 outbreak.

5. IF DEFENDANTS FAIL TO RESPOND TO PLAINTIFF’S SUPPLEMENTAL SUBMISSION BY DECEMBER 18, 2020, THEN THIS COURT WILL PROCEED TO ISSUE A REPORT AND RECOMMENDATION CONCERNING DAMAGES ON THE BASIS OF PLAINTIFF’S WRITTEN SUBMISSIONS ALONE. FURTHER, THIS COURT WILL NOT HOLD A HEARING ON DAMAGES, UNLESS ANY DEFENDANT REQUESTS A HEARING, IN WRITING, BY DECEMBER 18, 2020. See Action S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (Fed. R. Civ. P. 55(b)(2) “allows but does not require... a hearing”); Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989) (“[I]t [is] not necessary for the District Court to hold a hearing, as long as it ensured that there was a basis for the damages specified in a default judgment.”).

Dated: New York, New York November 23, 2020 SO ORDERED ibe FREEMAN United States District Judge Copy to: Plaintiffs Counsel (via ECF) Notice to Individual Defendants Regarding How To Make Pro Se Filings During the Period of the COVID-19 Outbreak: The Court’s Pro Se Office is not open for in-person visits at this time. Accordingly, until further notice by the Court, any pro se filings by defendants Kim or Ahn, including any response to this Order, should be made in one of the following three ways: (1) By email. This is the fastest way to file documents at this time.

To file by email: (a) The defendant must sign the document, either by signing before scanning or by typing his or her name after an s-slash, like this: “/s/ Jihee Sproch Kim” or “/s/ Jin Woo Ahn,” (b) the document must include the defendant’s name, address, phone number, and email address (if available), and (c) the subject line of the email must state that it is a pro se filing, and include the case number, as follows: “Pro Se Filing –15cv10186.”

The response may then be emailed to the following email address: [email protected] Documents submitted by email that do not comply with these instructions will be disregarded.

(2) By Drop Box. If defendant Kim or Ahn is unable to email the materials that he or she wishes to file, then the materials may be dropped off at the courthouse. The drop box is located in the lobby of the 200 Worth Street entrance to the Daniel Patrick Moynihan (“DPM”) Courthouse, next to the security station, and is available hours a day and 7 days a week to drop off filings. The Clerk’s Office will retrieve drop box filings during the hours of 8:30 a.m. to 4:00 p.m., Monday through Friday. The materials should be clearly marked with the defendant’s name and the case number.

(3) By mail. Defendants Kim and Ahn may still mail any papers to be filed to the DPM Courthouse, at the following address: Pro Se Intake Unit U.S. Courthouse Pearl Street New York, NY 10007.