EDILBERTO REYES MENDOZA JACKNYEL MALDONADO v. MERA MASONRY STONE INC JOAQUIN MEJIA MERA (2026)

REPORT AND RECOMMENDATION

On June 5, 2025, Plaintiffs Edilberto Reyes Mendoza and Jacknyel Maldonado commenced this action against Defendants Mera Masonry & Stone Inc. (“Mera Masonry”) and Joaquin Mejia Mera, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA), and New York Labor Law, NYLL §§ 190 et seq. and corresponding regulations (NYLL). See generally Electronic Case Filing (“ECF”) No. 1 (hereinafter, the “Complaint” or “Compl.”). Despite Plaintiffs’ service of the Summons and Complaint on both Defendants (see ECF Nos. 6, 7), Defendants never answered or otherwise appeared to defend themselves in this case. Plaintiffs then requested a certificate of default from the Clerk of Court (ECF No. 9), which was issued on October 6, 2025. See ECF No. 10. Thereafter, Plaintiffs filed a motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) (ECF No. 13 (hereinafter, the “Motion”)), which is presently before the undersigned on referral from District Judge Nusrat J. Choudhury. See Nov. 18, 2025 Order.

For the reasons set forth below, the undersigned respectfully recommends that the Court deny Plaintiffs’ Motion without prejudice, and sua sponte grant leave to amend the Complaint.

I. BACKGROUND

A. Factual Background 1

Mera Masonry is a New York corporation in Medford, New York. See Compl. ¶¶ 8-9. Mera Masonry is owned, operated, and controlled by New York resident Mejia Mera. See id. ¶¶ 11-14. Plaintiffs were employed as laborers of Mera Masonry. See ECF Nos. 13-9 ¶ 11, 13-10 ¶ 11. Plaintiffs allege that Mr. Mera maintained control, oversight, and direction over Plaintiffs, including timekeeping, payroll, and other employment practices applied to them. See Compl. ¶ 14. According to Plaintiffs, he also exercised day-to-day operational control over Mera Masonry, controlled the business functions of Mera Masonry, determined employee salaries, and made hiring and firing decisions for the business. See id. In particular, Mr. Mera is alleged to have supervised Plaintiffs’ work, helped set their work schedule, made the decision to hire and fire Plaintiffs, set their pay rates and schedules, and controlled the manner in which Plaintiffs were paid. See id. ¶¶ 45-52.

As a laborer for Mera Masonry from June 22, 2023 to December 15, 2024, Mr. Reyes Mendoza alleges he worked Monday through Sunday from 5:30 a.m. to 8:00 p.m. without any uninterrupted meal breaks, for a total of one-hundred one and one-half hours a week. See id. ¶¶ 19, 25-26. Mr. Mendoza claims that Defendants agreed to pay him $200.00 per day. See id. ¶ 23.

Mr. Maldonado was also a laborer for Mera Masonry from June 24, 2019 to September 12, 2020. He claims he worked Monday through Saturday from 8:00 a.m. to 4:00 p.m. without any uninterrupted meal breaks, for a total of forty-eight hours a week. See id. ¶¶ 20, 27-28. Mr. Maldonado alleges he agreed to work for Defendants at a rate of $120.00 per day. See id. ¶ 24.

According to Plaintiffs, however, Mera Masonry and Mr. Mera violated the FLSA and NYLL during Plaintiffs’ employment. According to Plaintiffs, Defendants failed to pay their daily rate of pay in a timely manner, sometimes if at all; failed to pay their regular rate of pay; did not keep track of their time worked, never provided a method to track their time or any time records; and failed to pay overtime compensation. See id. ¶¶ 29-42.

B. Procedural Background

Plaintiffs filed the Complaint on June 5, 2025, seeking to recover (1) unpaid overtime compensation under the FLSA; (2) unpaid overtime compensation under the NYLL; (3) wage notice violations under the NYLL; (4) wage statement violations under the NYLL; (5) unpaid minimum wages under the NYLL; (6) unpaid spread of hours pay for Mr. Mendoza under the NYLL; and (7) unpaid regular wages under the NYLL. See id. ¶¶ 58-108.

Plaintiffs served the Summons and Complaint on Mera Masonry on June 13, 2025, and on Mr. Mera on July 16, 2025. See ECF Nos. 6, 7. After Defendants failed to answer or otherwise appear to defend the action, Plaintiffs requested a certificate of default on October 3, 2025. See ECF No. 9. The Clerk of Court entered default against both Defendants on October 6, 2025. See ECF No. 10. On November 12, 2025, Plaintiffs filed their Motion (ECF No. 13), which Judge Choudhury referred to the undersigned for a Report and Recommendation. See Nov. 18, 2025 Order. The undersigned held a telephonic Status Conference on January 9, 2026, but Defendants failed to appear. See Jan. 9, 2026 Order.

On May 6, 2026, the undersigned requested additional information from Plaintiffs to confirm their compliance with E.D.N.Y. Local Civ. R. 55.2(a)(3) and the Servicemembers Civil Relief Act, 50a U.S.C. § 521. See May 6, 2026 Order. The Court did not receive any response from Plaintiffs.

II. LEGAL STANDARDS

A. Default Judgment

In evaluating a motion for default judgment, the court “must ensure that (1) jurisdictional requirements are satisfied; (2) the plaintiff took all the required procedural steps in moving for default judgment; and (3) the plaintiff's allegations, when accepted as true, establish liability as a matter of law.” Cooper v. Fire & Ice Trucking, Corp., No. 23-CV-1675, 2024 WL 3344001, at *3 (E.D.N.Y. July 9, 2024) (citation omitted).

Rule 55 of the Federal Rules of Civil Procedures sets a two-step process for obtaining a default judgment. See Shariff v. Beach 90th St. Realty Corp., No. 11-CV-2551, 2013 WL 6835157, at *3 (E.D.N.Y. Dec. 20, 2013) (adopting report and recommendation). First, “[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.” Fed. R. Civ. P. 55(a). Second, after default has been entered, and the defendant fails to appear or move to set aside the default under Rule 55(c), the Court may, on plaintiff's motion, enter a default judgment against that defendant. See Fed. R. Civ. P. 55(b)(2).

If a default is granted, the well-pleaded factual allegations set forth in the complaint are deemed true. See Windward Bora LLC v. Thomas, No. 20-CV-6046, 2022 WL 5114489, at *3 (E.D.N.Y. Sept. 30, 2022) (citation omitted). The Court, however, has the responsibility “to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief.” Id. (internal citation omitted). “Accordingly, prior to entering a default judgment, the court must determine whether the plaintiff's allegations establish the defendant's liability ‘as a matter of law.’ ” Id. (quoting Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 187 (2d Cir. 2015)).

B. Damages

“A defendant's default does not constitute an admission as to the damages claimed in the complaint.” A&B Alternative Mktg. Inc. v. Int'l Quality Fruit Inc., 521 F. Supp. 3d 170, 176 (E.D.N.Y. 2021), aff'd, 35 F.4th 913 (2d Cir. 2022). The burden is on the plaintiff to establish, by a “reasonable certainty,” his entitlement to the relief requested. See Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). Rule 55 provides that, if “it is necessary to take account or to determine the amount of damages or to establish the truth of any averment by evidence ․ the court may conduct such hearings or order such references as it deems necessary and proper.” See id. at 154. Rule 55(b)(2) does not mandate that a district court hold a hearing, as judges have discretion to determine what is “necessary and proper.” See McLean v. Wayside Outreach Dev., Inc., 624 F. App'x 44, 45 (2d Cir. 2015) (citation omitted). In McLean, the Second Circuit held that the district court did not abuse its discretion when it determined damages based on the aid of a single affidavit only partially based upon real numbers. See id. The burden is on the plaintiff to establish by “reasonable certainty” its entitlement to the relief requested. See Credit Lyonnais Sec. (USA), Inc., 183 F.3d at 155; see also Jimenez v. Green Olive Inc., 744 F. Supp. 3d 221, 252 (E.D.N.Y. 2024) (holding that the court must satisfy itself that plaintiff has met the burden of proving damages to a “reasonable certainty.”). To determine damages, the court may conduct an inquest (see Fed. R. Civ. P. 55(b)(2)(B)) or it may rely on the affidavits and other documentary evidence provided by plaintiff. See Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 189 (2d Cir. 2015).

III. DISCUSSION

As discussed herein, Plaintiffs have satisfied some (but not all) of the procedural thresholds to pursue the Motion and have also failed to demonstrate liability under the FLSA. The Court therefore declines to address damages under the FLSA or exercise supplemental jurisdiction over the state law claims.

A. Plaintiffs Complied with the Federal Rules of Civil Procedure and the Local Civil Rules

Plaintiffs must meet certain procedural requirements to succeed on a motion for default judgment: first, Plaintiffs must prove that it properly served Defendants pursuant to the Federal Rules of Civil Procedure, and that the Clerk of Court properly entered a certificate of default. Next, Plaintiffs in the Eastern District of New York must adhere to Local Civil Rule 55.2. See E.D.N.Y. Loc. Civ. R. 55.2.

1. Federal Rule of Civil Procedure 4

Under Rule 4(e)(1) and 4(h)(1)(A), a party may serve an individual and a corporation in accordance with the rules of the “state where the district is located or where service is made.” Fed. R. Civ. P. 4(e)(1); id. 4(h)(1)(A).

New York law permits service by “delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service.” N.Y. Bus. Corp. L. § 306(b)(1). Here, the Affidavit of Service for Mera Masonry shows that Plaintiff's process server delivered a copy of the summons and complaint to an agent of the New York secretary of state. See ECF No. 4. Thus, Plaintiffs properly served Mera Masonry.

New York law also permits service “by affixing the summons to the door” of the defendant's “dwelling place or usual place of abode” and also mailing it to the defendant's “last known residence.” N.Y. C.P.L.R. § 308(4). This method, however, is available only if personal delivery to the defendant (id. § 308(1)) or to a person of suitable age and discretion at the defendant's residence (id. § 308(2)) cannot be accomplished with due diligence. Id. § 308(4).

While there is no “magic number” of service attempts to constitute due diligence before “nail and mail” service, courts in the Second Circuit have instituted a “rough standard” of “approximately three attempts at service, optimally on non-consecutive days.” G & G Closed Cir. Events, LLC v. Lalmansingh, No. 23-CV-9098-AMD-JRC, 2025 WL 2404243, at *4 (E.D.N.Y. Aug. 4, 2025), report and recommendation adopted sub nom., G&G Closed Cir. Events, LLC v. Lalmansingh, No. 23-CV-9098 (AMD) (JRC), 2025 WL 2403401 (E.D.N.Y. Aug. 19, 2025) (quoting Feaster v. NYS Dep't of Corrections, No. 17-CV-1151, 2022 WL 220245, at *2 (W.D.N.Y. Jan. 25, 2022) (internal quotation marks and citation omitted).

Here, Plaintiffs’ Affidavit of Service for affix and mail service on Mr. Mera demonstrates that Plaintiffs’ process server attempted service on Mr. Mera's last known address on three separate occasions before affixing and mailing the summons and complaint: Saturday, July 12, 2025 at 3:30 PM; Tuesday, July 15, 2025 at 6:57 PM, and Wednesday, July 16, 2025 at 7:55 AM. See ECF No. 7. The Court therefore finds that Plaintiffs properly served Mr. Mera in accordance with C.P.L.R. § 308(4). See Gardner v. Lefkowitz, 737 F. App'x 597, 598 (2d Cir. 2018) (finding sufficient three attempts at service on non-consecutive days at different times); G & G Closed Cir. Events, LLC v. Clayton, No. 24-CV-4191, 2025 WL 1173926, at *7 (E.D.N.Y. Apr. 23, 2025) (affixing process was proper service after four attempts at personal service); Mister Softee, Inc. v. Diaz, No. 19-CV-4857, 2020 WL 5665240, at *3 (E.D.N.Y. July 2, 2020) (finding nail and mail service proper after three attempts at personal service), report and recommendation adopted, 2020 WL 5658722 (E.D.N.Y. Sept. 22, 2020).

2. Entry of Default

The Court next finds that the Clerk of Court properly entered a certificate of default against Defendants. Plaintiffs served Defendants on June 13, 2025 and July 16, 2025 (see ECF Nos. 6, 7), and Defendants were required to respond to the Complaint by July 4, 2025 and August 6, 2025, respectively. See Fed. R. Civ. P. 12(a)(1)(A)(i). When Defendants failed to do so, Plaintiffs requested a certificate of default. See ECF No. 9. The Clerk of the Court properly entered a certificate of default against Defendants on October 6, 2025. See ECF No. 10.

3. Local Rule 55.2

The Court next finds that Plaintiffs failed to comply with the procedural requirements set forth in the Eastern District of New York Local Civil Rule 55.2 (hereinafter “Local Rule 55.2”). Local Rule 55.2 sets forth the procedural requirements for seeking a default judgment. “Courts within this District generally require strict compliance with the Local Rules.” Amador v. 109-19 Food Corp., No. 21-CV-4633, 2025 WL 1032031, at *11 (E.D.N.Y. Mar. 14, 2025), report and recommendation adopted, 2025 WL 1031133 (E.D.N.Y. Apr. 7, 2025). “In many cases, failure to comply with Local Civil Rule 55.2 is a basis to deny a motion for default judgment.” Id. (cleaned up).

a. Local Rule 55.2(a)(1)(A)-(C)

First, the movant must file an affidavit or declaration showing (1) that the Clerk of the Court entered default, (2) that the movant has complied with the Servicemembers Civil Relief Act, 50a U.S.C. § 521 (“SCRA”), and (3) that the party against whom judgment is sought is not known to be a minor or incompetent person. See E.D.N.Y. Loc. Civ. R. 55.2(a)(1)(A)-(C).

Plaintiffs have only partially met these requirements. See ECF No. 13-3 ¶ 22 (declaration in support of motion affirming that the Clerk of the Court entered default); 13-8 (Clerk's certificate of default attached to declaration). The SCRA requires a plaintiff to “file with the court an affidavit (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.” 50 U.S.C.A. § 3931(b)(1). The affidavit “must be based not only on an investigation conducted after the commencement of an action or proceeding but also after a default in appearance by the party against whom the default judgment is to be entered.” Pruco Life Ins. Co. of N.J. v. Est. of Locker, No. 12-CV-882 (ENV) (RML), 2012 WL 3062754, at *1 (E.D.N.Y. July 23, 2012) (quoting Apex Mar. Co. v. Furniture, Inc., No. 11–CV–5365, 2012 WL 1901266, at *1 (E.D.N.Y. May 18, 2012)).

Neither the affidavit of service nor Plaintiffs’ counsel's affidavit satisfies the statute. The affidavit of service states that at the time of service, the process server asked the person accepting service whether the individual defendant was on active military duty and “received a negative reply.” See ECF No. 13-6 at 2. Plaintiff's counsel's affidavit states that, “[u]pon information and belief, Mejia Mera is a resident of New York, and is not an infant, in the military, or an incompetent person.” ECF No. 13-3 at 2. Courts have found similar statements, without a report from the SCRA confirming that an individual defendant is not active military at the time of default, insufficient to satisfy the requirements of the SCRA. See Guanglei Jiao v. Shang Shang Qian Inc., No. 18CV5624ARRVMS, 2020 WL 5105063, at *2 (E.D.N.Y. Aug. 31, 2020); see also Tenemaza v. Eagle Masonry Corp., No. 20CIV452AMDVMS, 2021 WL 8317120, at *5 (E.D.N.Y. July 22, 2021) (finding that counsel's conclusory statement that defendant was not an active military service member insufficient for default judgment).

The Court gave Plaintiffs an opportunity to correct this deficiency, but Plaintiffs did not comply. See May 6, 2026 Order. Thus, Plaintiffs failed to satisfy this portion of the Local Rules, which warrants denial of the Motion.

b. Local Rule 55.2(a)(2)-(3)

Next, Plaintiffs are required to file (1) a memorandum of law, (2) a proposed order detailing the proposed judgment to be entered, and (3) a certificate of service stating that all documents in support of the motion, including the Clerk's certificate of default, have been personally served on or mailed to the last known residence (for an individual) or business address (for a company). E.D.N.Y. Loc. Civ. R. 55.2(a)(2)-(3).

Plaintiffs have not met each of these requirements. While Plaintiffs filed a memorandum of law and proposed order (see ECF No. 13-2; ECF No. 13-12), Plaintiffs did not serve the documents in support of the Motion on Mera Masonry's last known business address. ECF No. 13-1 (certificate of service showing that Plaintiffs served the Motion on Mera Masonry at 170 Tudor Road, BSMNT, Centereach, New York 11720). However, Plaintiffs’ Complaint (see ECF No. 1) alleges that Mera Masonry is located in Medford, New York, and the New York Secretary of States Office lists Mera Masonry as being located at 7 Howard Dr., Coram, New York, 11727. Again, the Court gave Plaintiffs another opportunity to serve the Motion at Mera Masonry's last known business address, but Plaintiffs did not file proof of such service. See May 6, 2026 Order. Plaintiffs therefore failed to comply with this portion of the Local Rules, as well.

c. Local Rule 55.2(c)

Finally, the movant must file “a statement of damages, sworn or affirmed to by one or more people with personal knowledge, in support of the request, showing the proposed damages and the basis for each element of damages, including interest, attorney's fees, and costs.” E.D.N.Y. Loc. Civ. R. 55.2(c).

Plaintiffs met this requirement. ECF No. 13-3 (declaration affirming plaintiff's estimated calculation of damages); 13-11 (damages computation). Although the statement of damages itself is not “sworn or affirmed,” it is included as an exhibit to Plaintiff's attorney's declaration, which is signed by Plaintiff's attorney under penalty of perjury, and the Court is therefore satisfied that Local Rule 55.2(c) has been complied with. See Great Bowery, Inc. v. Royal Beauty Studio Inc., No. 25-CV-3627 (FB) (JAM), 2026 WL 1029641, at *9 (E.D.N.Y. Apr. 16, 2026) (excusing the “minor violation” that the statement of damages was not sworn or affirmed but signed by plaintiff's attorney).

B. The Complaint Lacks Sufficient Allegations To Establish Defendants’ Liability Under The FLSA

“[B]ecause a party in default does not admit conclusions of law, it is incumbent upon the Court to consider whether the plaintiff has pleaded facts sufficient to establish the defendant's liability with respect to each cause of action.” Cazares v. 2898 Bagel & Bakery Corp., No. 18 Civ. 5953 (AJN), 2020 WL 2832766, at *3 (S.D.N.Y. May 31, 2020) (citation & internal quotation marks omitted); see Vera v. Banco Bilbao Vizcaya Argentaria, S.A., 946 F.3d 120, 135 (2d Cir. 2019) (“In reviewing a default judgment, we generally ‘deem[ ] all the well-pleaded allegations [as to liability] in the pleadings to be admitted.’ ”) (alterations in original) (quoting Transatlantic Marine Claims Ag. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997)). The Court finds that Plaintiffs’ conclusory allegations here are insufficient to establish Defendants’ liability under the FLSA, and thus the undersigned respectfully recommends that the Motion should be denied on this basis, as well as the previously identified procedural defects.

1. Employer-Employee Relationship

To establish liability under both the FLSA and NYLL, Plaintiffs must first show an employer-employee relationship between themselves and each Defendant. Cooper, 2024 WL 3344001, at *6-7 (assessing employer-employee relationship on motion for default judgment). The FLSA defines “employee” as “any individual employed by an employer,” 29 U.S.C. § 203(e)(1), and “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d).

To determine this employer-employee relationship, courts analyze the “ ‘economic reality” of the relationship between the plaintiff and defendant, considering the following non-dispositive factors: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)); see also Xia v. 62-98 Realty LLC, No. 19-CV-1203, 2024 WL 5181633, at *5-6. (E.D.N.Y. Dec. 19, 2024) (describing economic reality test factors). Moreover, individual defendants who are owners, officers, or otherwise make corporate decisions on behalf of a defendant company must also have “operational control” over the company “in a manner that relates to the plaintiff's employment” to qualify as an employer under the FLSA. Irizarry v. Catsimatidis, 722 F.3d 99, 109-10 (2d Cir. 2013). An individual defendant “exercises operational control over employees if his or her role within the company, and the decisions it entails, directly affect the nature or conditions of the employees’ employment.” Id. at 110. To prove operational control, “the relationship between the individual's operational function and the plaintiffs’ employment must be closer in degree than simple but-for causation.” Id.

However, allegations of an employer-employee relationship cannot “simply recite” the elements of the economic reality test. Jurado v. Sabor Hispano, Inc., No. 20-CV-1104, 2021 WL 11690645, at *8 (E.D.N.Y. Aug. 5, 2021) (finding that plaintiff's “boilerplate allegations that simply recite[d] the elements of the economic reality test” were “insufficient to establish that [plaintiff] was employed by [d]efendants” on a motion for default judgment).

Here, Plaintiffs’ motion for default judgment suffers from this fatal flaw, as Plaintiffs’ conclusory allegations are insufficient to establish that Defendants were their employers or that Plaintiffs were their employees. Plaintiffs’ “boilerplate allegations that simply recite the elements of the economic reality test” (Keawsri v. Ramen-Ya Inc., No. 17 Civ. 2406 (VEC), 2018 WL 279756, at *3 (S.D.N.Y. Jan. 2, 2018) (citation omitted)) include:

• Upon information and belief, at all relevant times, Joaquin Mejia Mera was and continues to be an owner, corporate officer, director, and/or managing agent of Mera Masonry. Compl. ¶ 13;

• Upon information and belief, at all relevant times, Joaquin Mejia Mera exercised operational control over Mera Masonry, controlled significant business functions of Mera Masonry, determined employee salaries, made hiring decisions, and acted on behalf of and in the interest of Mera Masonry in devising, directing, implementing, and supervising the wage and hour practices and policies relating to their employees, including Plaintiffs. Id. ¶ 13;

• Joaquin Mejia Mera participated in the decision to hire Plaintiffs. Id. ¶ 45;

• Joaquin Mejia Mera participated in the decision to fire Plaintiffs. Id. ¶ 46;

• Joaquin Mejia Mera participated in the daily supervision of Plaintiffs’ job duties and responsibilities. Id. ¶ 48;

• Joaquin Mejia Mera participated in setting Plaintiffs’ work schedule. Id. ¶ 49.

• Defendants dictated, controlled, and ratified the wage and hour and all related employee compensation policies. Id. ¶ 55.

These allegations regarding employer status do little more than parrot the elements of the economic reality test; moreover, many are pled upon information or belief, which carry minimal weight. See Dixon v. Int'l Unified Workforce, Inc., No. 18-CV-7191, 2020 WL 6140054, at *4 (E.D.N.Y. Sept. 1, 2020) (“The minimal allegations in the [c]omplaint ․ are made solely on information and belief, and such allegations are accorded no weight, even on default.”); see also Cruz v. 1730 Walt Whitman Rd. Corp., No. 23-CV-8992 (ENV) (LGD), 2025 WL 2449077, at *7 (E.D.N.Y. Aug. 25, 2025) (finding threadbare allegations as insufficient to establish an employer-employee relationship). Thus, Plaintiffs’ FLSA claims (as set forth in the Complaint) fail due to the lack of specific instances in which defendant hired, fired, supervised, managed, paid (or failed to pay), or otherwise interacted with either Plaintiff. See, e.g., Duan v. Studio M Bar & Lounge Inc., No. 20-CV-2240, 2023 WL 11936864, at *2 (E.D.N.Y. May 1, 2023) (noting that “boilerplate assertions of employer status as defined by the Second Circuit” were insufficient to establish employer status on motion for default judgment); Gao v. Jian Song Shi, No. 18-CV-2708, 2021 WL 1949275, at *6 (E.D.N.Y. Apr. 30, 2021), report and recommendation adopted, 2021 WL 1946322 (May 15, 2021) (concluding that plaintiff failed to “adequately allege that defendants were plaintiff's employers” on motion for default judgment where the allegations were “verbatim assertions of the [employer] factors articulated by the Second Circuit”).

2. FLSA Coverage

Plaintiffs also must show that the FLSA covers their employment relationship. Coverage exists if the plaintiff either (1) was personally “engaged in commerce or in the production of goods for commerce,” (individual coverage), or (2) was “employed in an enterprise engaged in commerce or in the production of goods for commerce” (enterprise coverage). 29 U.S.C. §§ 206(a), 207(a)(1). For enterprise coverage, the employer must have both “annual gross volume of sales made or business done [of] not less than $500,000,” and have “employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person.” Id. § 203(s)(1)(A)(i)-(ii).

In support of a finding of FLSA coverage, Plaintiffs assert the following claims:

• Defendants were and are subject to the overtime pay requirements of the FLSA because Defendant Mera Masonry is an enterprise engaged in commerce or in the production of goods for commerce.” Compl. ¶ 60;

• At all times relevant to this Complaint, Defendant Mera Masonry had, and continues to have, two (2) or more employees handle goods or materials that have moved in interstate commerce, including Plaintiffs who worked as laborers and handled materials and equipment that originated outside of the State of New York.” Id. ¶ 61; and

• Upon information and belief, the gross annual volume of sales made or business done by Defendant Mera Masonry for the years 2023 and 2024 was not less than $500,000.00 each year.” Id. ¶ 62.

However, these allegations taken alone are insufficient to establish coverage under the FLSA.

a. Individual Coverage

“Individual coverage under [the] FLSA can be established where the employee is engaged in commerce or produced goods in commerce.” Alvarado v. J.A. Vasquez Landscaping Corp., No. 20-CV-4005 (MKB)(SJB), 2022 WL 17775252, at *2 (E.D.N.Y. Feb. 9, 2022). “Employees are ‘engaged in commerce’ within the meaning of the [FLSA] when they are performing work involving or related to the movement of persons or things (whether tangibles or intangibles, and including information and intelligence) among several States or between any State and any place outside thereof.” 29 C.F.R. § 779.103.

But the Court cannot reasonably infer from any factual allegations herein how Defendant's business connects to interstate commerce at all, as Plaintiffs plead merely that “Defendant Mera Masonry had, and continues to have, two (2) or more employees handle goods or materials that have moved in interstate commerce, including Plaintiffs who worked as laborers and handled materials and equipment that originated outside of the State of New York.” Compl. ¶ 61; see Baez v. Mi Pueblo Corp., No. 23-CV-2097 (RER)(MMH), 2024 WL 4093473, at *6 (E.D.N.Y. Sept. 5, 2024), report and recommendation adopted, No. 23-CV-2097 (RER) (MMH), 2024 WL 4648138 (E.D.N.Y. Sept. 30, 2024) (rejecting conclusory allegations of interstate commerce as “no more than a rote recitation of the statutory language”); Salamanca v. ABC Corp., No. 19CV1335RRMSIL, 2019 WL 8807843, at *4 (E.D.N.Y. Oct. 30, 2019), report and recommendation adopted, No. 19CV1335RRMSIL, 2020 WL 2542497 (E.D.N.Y. May 18, 2020) (finding that the complaint failed to adequately allege that defendants engaged in interstate commerce where it contained only a verbatim recitation of the statute without any description of defendants’ business operations). Plaintiffs fail to provide, “even in a conclusory fashion,” that Plaintiffs were “involved with the movement of materials among or between states or that he had any contact with any out-of-state customers or businesses.” Tene v. Neuehaus Studios Inc., No. 23-CV-2040 (NRM)(MMH), 2024 WL 1270816, at *5 (E.D.N.Y. Mar. 26, 2024).

The Tene case is particularly informative because, as Plaintiffs here have alleged, that plaintiff asserted only that the defendant “(i) ha[d] purchased goods, tools, and supplies for its business through the streams and channels of interstate commerce, and has had employees engaged in interstate commerce, and/ or in the production of goods intended for commerce, and handle, sell and otherwise work with goods and material that have been moved in or produced for commerce by any person[;] and (ii) has had annual gross volume of sales of not less than $500,000.00.” 2024 WL 1270816, at *5 cf. Compl. ¶ 61-62. But the Tene court found that even where plaintiff's allegations were taken as true, he failed to “provide any description regarding the nature of [defendant's] business, and the Court cannot reasonably infer from [defendant's] name or other factual allegations in the [c]omplaint whether [defendant's] business connects to interstate commerce.” See id.

In fact, another court in this District specifically found barebones allegations concerning masonry and bricklaying businesses (similar to that of the Defendants in the instant case) insufficient to constitute interstate commerce because “how bricklaying involves or relates to the movement of things between or among the States is not evident from the allegations; by its nature, it is a stationary activity.” Tenemaza, 2021 WL 8317120, at *7 (finding that plaintiff failed to provide any information about the bricks, mortar or other supplies he used in his work so as to allege that they had moved in interstate commerce).

Accordingly, Plaintiffs have not established individual coverage under the FLSA.

b. Enterprise Coverage

An employer is an “enterprise engaged in commerce or in the production of goods for commerce” subject to the FLSA when the employer: (1) “has employees engaged in commerce or in the production of goods for commerce” or “has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and (2) has an “annual gross volume of sales made or business done ․ not less than $500,000[.]” 29 U.S.C. § 203(s)(1)(A)(i)–(ii); Guanglei Jiao v. Shang Shang Qian Inc., No. 18-CV-5624 (ARR)(VMS), 2020 WL 6370148, at *10 (E.D.N.Y. Aug. 11, 2020), report and recommendation adopted 2020 WL 5105063 (E.D.N.Y. Aug. 31, 2020).

“On default, a plaintiff's allegations are sufficient to subject a defendant to FLSA liability as long as one may reasonably infer that a business was an ‘enterprise engaged in commerce.’ ” Alvarado v. J.A Vasquez Landscaping Corp., No. 20-CV-4005 (HG)(SJB), 2023 WL 2542702, at *5 (E.D.N.Y. Feb. 14, 2023) (quoting Fermin v. Las Delicias Peruanas Rest., 93 F. Supp. 3d 19, 32 (E.D.N.Y. 2015)),), report and recommendation adopted, No. 20-CV-4005 (HG)(SJB) (E.D.N.Y. Mar. 16, 2023). However, as discussed supra, Plaintiffs fail to allege adequate facts to reasonably infer that Defendants engaged in interstate commerce as required by the FLSA. Even accepting Plaintiffs’ allegations as true, there are no facts to support the inference that Plaintiffs were “handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” where there are no allegations on the nature of Plaintiffs’ “laborer” work for Defendants. See ECF No. 13-10 ¶ 11, 13-9 ¶ 11. The Court therefore declines to make the inferential leap that this work automatically involved interstate commerce.

Moreover, Plaintiffs provide no additional support for their contention that Defendant's gross annual volume of sales exceeds $500,000 for all years of the FLSA limitations period. See Compl. ¶ 62. Such a barebones recitation of the statutory requirements is insufficient where Plaintiffs could have provided even minimally more specific allegations regarding the volume of Defendants’ work. See Tenemaza, 2021 WL 8317120, at *7 (E.D.N.Y. July 22, 2021) (holding that “[p]laintiff also fails to provide any information about the volume of Defendants’ work to support the statement that the gross volume of sales was over $500,000.00.”); Pinela Jurado v. Sabor Hispano, Inc., No. 20CIV1104RPKVMS, 2021 WL 11690645, at *9 (E.D.N.Y. Aug. 5, 2021) (finding conclusory allegations as insufficient to establish either enterprise or individual coverage under the FLSA); Day An Zhang v. L.G. Apparel Inc., No. 09-CV-3240 KAM, 2011 WL 900183, at *3 (E.D.N.Y. Feb. 18, 2011), report and recommendation adopted, No. 09-CV-3240 KAM SMG, 2011 WL 900950 (E.D.N.Y. Mar. 15, 2011) (finding the allegation that “each defendant has had gross revenues in excess of $500,000” as “mere labels and conclusions” insufficient to establish FLSA liability); Tene, 2024 WL 1270816, at *6 (same).²

Based on the foregoing, this Court respectfully recommends that Plaintiffs be denied default judgment as to their FLSA claims.³

C. The Court Declines to Exercise Supplemental Jurisdiction over Plaintiffs’ NYLL Claims

Federal courts have supplemental jurisdiction over state law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Once a district court's discretion over supplemental jurisdiction is triggered under 28 U.S.C. § 1367(c)(3), it balances the traditional “values of judicial economy, convenience, fairness, and comity.” Hu v. City of New York, No. 22-183, 2023 WL 3563039, at *3 (2d Cir. May 19, 2023) (quoting Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (citation omitted). However, and of particular relevance here, a district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Weighing these factors, the Court declines to grant supplemental jurisdiction over Plaintiffs’ NYLL claims following the denial of default judgment on the FLSA claims. See Aponte v. Clinton St. Pizza Inc., No. 20-CV-2037 (KMW), 2021 WL 1961646, at *4 (S.D.N.Y. May 17, 2021) (declining to exercise supplemental jurisdiction over NYLL claims when denying default judgment on FLSA claims); Pinela Jurado, 2021 WL 11690645, at *10 (same); Baez, 2024 WL 4093473, at *6 (same); Tene, 2024 WL 1270816, at *6 (same).

IV. CONCLUSION

Considering Plaintiffs’ failure to sufficiently plead liability under the FLSA and Plaintiffs’ failure to comply with the Local Rules, the undersigned respectfully recommends that Plaintiffs’ motion for default judgment be denied without prejudice, and Plaintiffs be given thirty days from the order adopting this report and recommendation (in the event that it is adopted) to file and serve an amended complaint on Defendants correcting the pleading deficiencies.⁴ Should Plaintiffs not file and serve an amended complaint, the Court recommends the case be dismissed with prejudice as to the federal claims and without prejudice for lack of subject matter jurisdiction as to the state law claims.

V. OBJECTIONS TO THE REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any request for extension of time for filing objections must be directed to Judge Choudhury. FAILURE TO FILE TIMELY OBJECTIONS SHALL CONSTITUTE A WAIVER OF THOSE OBJECTIONS BOTH IN THE DISTRICT COURT AND LATER APPEAL TO THE UNITED STATES COURT OF APPEALS. See Thomas v. Arn, 474 U.S. 140, 154–55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega, Inc., 338 F. App'x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3D 566, 569 (2d Cir. 1995).

SO ORDERED:

FOOTNOTES

2.   The undersigned notes some other courts have accepted such sparse allegations at the default judgment stage. See, e.g., Borja v. MSK Rest. Corp., No. 22-CV-6178, 2025 WL 951402, at *11 (E.D.N.Y. Mar. 13, 2025), report and recommendation adopted, 2025 WL 948122 (Mar. 29, 2025) (finding conclusory allegation that defendant restaurant “had gross annual revenue in excess of $500,000” throughout the litigation to be sufficient on motion for default judgment). However, the undersigned finds the other cases more persuasive and also concludes that Plaintiffs should have the opportunity to address this and other defects with a potential amended complaint. See infra Section IV.

3.   As the Court finds that the Motion should be denied due to the failure to demonstrate FLSA liability, the Court need not address the question of damages under the FLSA. See Hallmark Licensing, LLC v. Dickens, Inc., No. 17-CV-2149, 2020 WL 6157007, at *7 (E.D.N.Y. Oct. 21, 2020) (quoting Miller v. Metro. Life Ins. Co., No. 17-CV-7284, 2018 WL 59093477, at *5 n.5 (S.D.N.Y. Nov. 15, 2018) (further citations omitted)) (“it is well-settled that “there is no requirement for a court to specifically address each and every argument raised by a party in papers filed with the Court”).

4.   See Tenemaza, 2021 WL 8317120, at *8 (granting leave to amend the complaint after denying default judgment due to plaintiff's failure to sufficiently plead liability under the FLSA).

LEE G. DUNST United States Magistrate Judge