Lemus v. Pezzementi
- Andrew Krause
- 7:15-cv-05592
- U.S. District Court · Southern District of New York
- 3
In Lemus v. Pezzementi, Judge Krause scheduled a damages hearing after a default judgment, finding plaintiff’s written evidence insufficient to calculate wage damages.
Ramiro Lemus must provide testimony and may submit admissible documents supporting his damages. Todd Pezzementi and Northern Tree Service may appear and present evidence concerning the amount of damages.
What happened
In Lemus v. Pezzementi, the court had already entered a default judgment establishing Todd Pezzementi’s and Northern Tree Service’s liability for overtime violations, wage-notice violations, unpaid wages, and assault and battery. The remaining issue was how much money Ramiro Lemus could recover.
The court said Lemus’s written evidence did not adequately show what he was paid, how he was paid, or the details needed to calculate his unpaid overtime and other unpaid wages. Because damages after a defendant’s default must be supported by admissible evidence, the court lacked enough information to recommend an award based only on the written submissions.
Judge Andrew E. Krause scheduled an in-person damages hearing for February 6, 2023, and a telephone conference for January 25, 2023. Lemus must be prepared to testify and may provide admissible documents; the defendants may also present testimony and documents about the amount of damages.
The detailed version
- Lemus v. Pezzementi · No. 7:15-cv-05592
- Andrew Krause
- Jan. 11, 2023
Background
Ramiro Lemus sued Todd Pezzementi and Northern Tree Service. The district judge had previously entered a default judgment establishing the defendants’ liability for four categories of claims: overtime violations under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), violations of the wage-notice provisions of the WTPA, unpaid wages, and assault and battery.
This order concerned only the amount of damages. The matter had been referred to Magistrate Judge Andrew E. Krause for a recommendation about the damages recoverable on those claims. A damages inquest is a hearing used to determine the amount owed after liability has already been established.
Evidence Problems
Lemus submitted a sworn declaration, but it did not state the amounts the defendants actually paid him or whether they paid him by check or in cash. That information appeared only in allegations in the complaint and in declarations submitted by his attorney. His declaration also provided very little additional evidence about his weekly work routine.
The court stated that damages following a defendant’s default must be based on admissible evidence. It concluded that Lemus had not provided admissible evidence sufficient to establish his unpaid overtime compensation and other unpaid wages. Without additional evidence, the court would not have a sufficient basis to recommend damages for the FLSA and NYLL claims.
Order
The court scheduled an in-person inquest hearing for Monday, February 6, 2023, at 10:00 a.m. in Courtroom 250 at the United States Courthouse in White Plains, New York. Lemus was required to be prepared to offer testimony supporting his FLSA and NYLL claims and could also offer testimony about damages on his other claims. He could provide admissible documentary evidence as well.
The defendants were permitted to appear and offer testimony and admissible documentary evidence concerning the amount of damages. The court also scheduled a telephone status conference for January 25, 2023, to discuss the hearing’s parameters and logistical matters. The order did not award a specific amount of damages.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.