13-3513-cv
Hosking v. New World Mortgage, Inc., et al.

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 18th day of June, two thousand fourteen.

PRESENT:             BARRINGTON D. PARKER,
                     DENNY CHIN,
                     RAYMOND J. LOHIER, JR.,
                                                   Circuit Judges.
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GARY HOSKING, Individually, and on behalf
of himself and all others similarly situated,
                            Plaintiff-Appellant,

                              -v.-                                                 13-3513-cv

NEW WORLD MORTGAGE, INC., NEW WORLD
CAPITAL HOLDINGS, INC., EDWARD
MUNTEANU, KEEVIN H. LEONARD, FRANCIS
LEONARD,
                    Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:                  Erik H. Langeland, Erik H. Langeland, P.C.,
                                          New York, New York.

              Appeal from the United States District Court for the Eastern District of

New York (Brodie, J.).

              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

              Plaintiff-appellant Gary Hosking appeals the district court's judgment

entered September 13, 2013, denying his motion for damages, attorney's fees, and costs.

The district court, adopting the magistrate judge's reports and recommendations

(Lindsay, Mag. J.), ruled that Hosking had failed to demonstrate that he and the opt-in

plaintiffs were entitled to recover some $4 million in back pay, attorney's fees, costs, and

liquidated damages from the defaulting defendants. We assume the parties' familiarity

with the facts and procedural history, which we briefly summarize below before

addressing the merits.

              Hosking filed this Fair Labor Standards Act ("FLSA") collective action

against defendants New World Mortgage, Inc. ("NW Mortgage") and New World

Capital Holdings, Inc. ("NW Capital") on May 31, 2007, to recover overtime

compensation. Ten months later, he filed a motion to amend his complaint to add

individual defendants, FLSA claims for failure to pay minimum wages, and New York

Labor Law claims for overtime compensation and failure to pay minimum wages.

Before granting the motion to amend, however, the district court granted Hosking's
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motion for a default judgment against NW Mortgage. Next, the district court granted a

default judgment against one of the individual defendants, Edward Munteanu, and

permitted Hosking to proceed as a collective action, with 45 "opt-in plaintiffs."

Thereafter, a default judgment was entered against defendant NW Capital by

stipulation.

               Hosking filed a motion for damages on behalf of himself and the opt-in

plaintiffs. The district court referred the motion to the magistrate judge, who

recommended denying the motion on three grounds: (1) Hosking could not collect

damages for unpaid minimum wages from NW Mortgage because the default judgment

was entered against it before Hosking added the minimum wage claims; (2) the case

was not conditionally certified as a collective action until after NW Mortgage and

defendant David Munteanu had defaulted; and (3) Hosking and the opt-in plaintiffs did

not prove damages with sufficient certainty and failed to document attorney's fees and

costs.

               Hosking objected, but only on the ground that the magistrate judge had

not allowed the opt-in plaintiffs to submit additional information with respect to

damages and attorney's fees. The district court adopted the magistrate judge's report

and recommendation, except that it gave Hosking time to submit information with

respect to damages and fees.




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              Hosking supplemented his motion for damages. The magistrate judge

reviewed the revised motion and again advised the district court to deny it. The district

court adopted the magistrate judge's report and recommendation and denied the

motion. This appeal followed.1

              Two issues are presented: (1) whether Hosking waived his objections to

the magistrate judge's first report and recommendation because he did not file

objections in a timely manner; and (2) whether, in his supplemental motion, Hosking

sufficiently proved damages and properly documented attorney's fees and costs. We

address each issue in turn.

1.     Waiver

              This Court has adopted the rule that failure to timely object to a

magistrate judge's report and recommendation "may operate as a waiver of any further

judicial review of the decision, as long as the parties receive clear notice of the

consequences of their failure to object." United States v. Male Juvenile (95-CR-1074), 121

F.3d 34, 38 (2d Cir. 1997); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that

Court of Appeals may adopt such rule).

              Here, the magistrate judge's report and recommendation provided that

objections were to be filed "within 14 days of service," and warned that "[f]ailure to file

objections within [that] period" would waive the right to appeal. (App. 209). Hosking's


       1      Defendants have not participated in this appeal.

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only objection to the magistrate judge's first report and recommendation was that it did

not permit the opt-in plaintiffs to supplement their motion or provide records for in

camera review, which the district court ultimately permitted. Hosking did not challenge

the magistrate judge's recommendation that the claims against NW Mortgage and the

individual defendants should be dismissed on grounds unrelated to the sufficiency of

the proof of damages. Hosking's appeal is thus limited to the district court's adoption

of the second report and recommendation, specifically, whether the supplemental

motion for damages was sufficient to establish damages as to NW Capital.2

2.     Plaintiff's Supplemental Motion

              When a party moves for a default judgment, Rule 55(b) of the Federal

Rules of Civil Procedure permits a district court to "conduct hearings or make referrals"

to "determine the amount of damages[,] establish the truth of any allegation by

evidence[,] or investigate any other matter." Fed. R. Civ. P. 55(b)(2). "The dispositions

of motions for entries of defaults and default judgments . . . are left to the sound

discretion of a district court." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993);

see Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir. 2009) ("In permitting, but not requiring,

a district court to conduct a hearing before ruling on a default judgment, Rule 55(b)

commits this decision to the sound discretion of the district court."). Accordingly, we



       2       The district court dismissed the complaint as to defendants Keevin Leonard and
Francis Leonard because the plaintiffs never served them with the complaint. Hosking does not
appeal this dismissal.

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review the district court's decision for abuse of discretion. See City of New York v.

Mickalis Pawn Shop, LLC, 645 F.3d 114, 129, 131-32 (2d Cir. 2011).

              Before granting a damages award on a default judgment, the district court

must ensure that the plaintiff has established the amount of damages to a "reasonable

certainty." Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).

An employee suing under the FLSA has the burden of proving that he performed the

work for which he was not properly compensated. Reich v. S. New England Telecomm.

Corp., 121 F.3d 58, 66-67 (2d Cir. 1997). Where, as here, the employer did not maintain

records of its employees' wages and hours, the testimony of a "representative sample of

employees" is sufficient to meet this burden. See id. at 67 (2d Cir. 1997). Moreover, in

the absence of employer records, "an employee has carried out his burden if he proves

that he has in fact performed work for which he was improperly compensated and if he

produces sufficient evidence to show the amount and extent of that work as a matter of

just and reasonable inference." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687

(1946), superseded by statute, Portal-to-Portal Act of 1947, 29 U.S.C. § 216(b) (2006), as

recognized in Gorman v. Consol. Edison Corp., 488 F.3d 586, 590 (2d Cir. 2007).

              The district court did not abuse its discretion in concluding that Hosking's

supplemental submissions were insufficient. Hosking's supplemental motion consisted

of a three-page memorandum of law, seven declarations from former employees, and

"consent-to-join" forms from 43 of the 45 opt-in plaintiffs. We conclude that the district


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court did not abuse its discretion in holding that these submissions were simply too

vague to support Hosking's $4 million demand. For example, the seven declarants

attested to the number of hours they worked "on average," and noted that they were not

paid minimum wage the "vast majority" of the time. No declarant defined "vast

majority," stated how the "average" number of hours was calculated, or addressed

whether different employees could have worked different hours. Only one declarant

mentioned vacation time -- asserting that he did not take any. None of the other opt-in

plaintiffs provided details about vacation time, unpaid holidays, or sick days.

Additionally, of the 43 opt-in forms, only eight included specific dates of employment;

the others indicated only the period they worked at NW Capital only by months and

years, and in some cases just the years. Still others had question marks or a blank space

next to the field for "dates of employment."

              Hosking correctly notes that the employee's burden in proving damages

under the FLSA is minimal, particularly when the employer does not keep records. But

the district court is not permitted to "just accept [plaintiff's] statement of the damages."

Transatl. Marine Claims Agency v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997).

Rather, there must be credible evidence to show "the amount and extent of [the

uncompensated] work as a matter of just and reasonable inference." Mt. Clemens, 328

U.S. at 687. Hosking did not proffer such evidence. Although some employees

provided dates of their employment, they did not offer any other information from


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which the district court could extrapolate a damages amount. See Grochowski v. Phoenix

Constr., 318 F.3d 80, 88-89 (2d Cir. 2003) (testimony that plaintiffs "'usually' worked"

certain hours and did not know if they worked every Saturday was "only speculation to

establish what hours these plaintiffs worked" and did not "present sufficient evidence

for the jury to make a reasonable inference as to the number of hours worked by the

non-testifying employees").

              Similarly, Hosking had the burden of submitting sufficient evidence to

support his application for attorney's fees, see Hensley v. Eckerhart, 461 U.S. 424, 437

(1983), and indeed he was directed to submit contemporaneous time records. Yet, he

failed to do so -- despite being granted more time after the district court adopted the

magistrate judge's first report and recommendation. Accordingly, it was not an abuse

of discretion for the district court to deny Hosking's motion as to attorney's fees. See,

e.g., Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010) (per curiam) ("[A]bsent

unusual circumstances attorneys are required to submit contemporaneous records with

their fee applications.").

              Finally, Hosking argues that the "[d]istrict [c]ourt failed to address [his]

request for liquidated damages, as did the Magistrate." (Appellant's Br. at 35). Because

the district court denied Hosking's motion for damages, however, it did not need to

consider the issue of liquidated damages.




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             We have considered Hosking's remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O'Hagan Wolfe, Clerk




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