Baltierra v. Advantage Pest Control Co., 14 Civ. 5917 (AJP)

• Decision Date: 18 September 2015
• Docket Number: 14 Civ. 5917 (AJP)
• Parties: GUZMARO BALTIERRA, et al., Plaintiffs, v. ADVANTAGE PEST CONTROL CO., and TONY ORTIZ, Defendants.
• Court: U.S. District Court — Southern District of New York

GUZMARO BALTIERRA, et al., Plaintiffs,
v.
ADVANTAGE PEST CONTROL CO., and TONY ORTIZ, Defendants.

14 Civ. 5917 (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 18, 2015

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

On August 10, 2015, defendants withdrew their answer and the Court entered default for plaintiffs Guzmaro Baltierra, David Perez and Kelvin Jaquez against defendants Advantage Pest Control and Tony Ortiz. (Dkt. No. 38: Order of Default.) Presently before the Court is plaintiffs' inquest request for damages. (Dkt. Nos. 40-46.) The parties consented to decision of this FLSA/NYLL case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 39.)

For the reasons discussed below, judgment is entered for the plaintiffs for damages as follows: Baltierra $379,532.24, Perez $5,234.40 and Jaquez $34,322.68, plus continuing prejudgment interest until judgment is entered, as well as attorneys' fees and costs of $22,415.00

FACTS

"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).

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The Complaint

The amended complaint (Dkt. No. 21) alleges as follows:

Defendants Advantage Pest Control and Tony Ortiz are part of an integrated business enterprise where plaintiffs worked as exterminators. (Am. Compl. ¶¶ 15, 20, 28, 33.) Ortiz is a shareholder of Advantage Pest Control within the meaning of New York Business Corporations Law § 630. (Am. Compl. ¶ 16.) Ortiz had control over all employment practices at Advantage Pest, "including wages, scheduling and the hiring and firing of employees." (Am. Compl. ¶ 17.)

Plaintiff Guzmaro Baltierra worked for defendants as an exterminator since June 1, 2004; plaintiff David Perez worked for defendants as an exterminator from August 15, 2013 to September 15, 2013; plaintiff Kelvin Jaquez worked for the defendants as an exterminator from November 1, 2008 to August 15, 2011. (Am. Compl. ¶¶ 19-20, 28, 33.)

During their employment, plaintiffs worked more than ten hours per day and more than forty hours per week. (Am. Compl. ¶¶ 21-24, 30, 34-35, 42-44.) Defendants did not pay plaintiffs the minimum wage or overtime compensation required by the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). (Am. Compl. ¶¶ 48, 50, 55, 57.) Defendants did not pay spread of hours for each day that plaintiffs' shifts lasted more than ten hours per day. (Am. Compl. ¶ 59.) Defendants did not provide plaintiffs with wage notices or wage statements as required by the NYLL. (Am. Compl. ¶¶ 64, 66.)

The complaint alleges that defendants' violations of the FLSA and NYLL were willful. (Am. Compl. ¶¶ 38, 40.) The complaint asserts claims for unpaid minimum and overtime wages pursuant to the FLSA and NYLL (Am. Compl. ¶¶ 48, 50, 55, 57), spread of hours pursuant to the NYLL (Am. Compl. ¶ 59), and statutory damages for violations of the NYLL (Am. Compl.

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Wherefore Clause ¶ H), and also seeks liquidated damages (id. ¶ G), prejudgment interest (id. ¶ K) and attorneys' fees and costs (id. ¶ J).¹

Inquest Submissions

In support of inquest damages, plaintiff Baltierra filed an affidavit stating that he began working at Advantage Pest Control in June 2004. (Dkt. No. 43: Baltierra Aff. ¶ 3.) When Baltierra was hired, he was told that he would be paid by the job, but was not told how much he would be paid or how many hours he was required to work. (Baltierra Aff. ¶¶ 5, 11.) Baltierra was never given a wage statement with his pay that included the dates covered by the wages, his name, the rate of pay, the number of hours he worked, or the name and contact information for Advantage Pest Control. (Baltierra Aff. ¶ 12.) Baltierra worked six days a week, and typically began working at 8:00 a.m. and finished working between 8:00 p.m. and 9:00 p.m. (Baltierra Aff. ¶ 5.) In the summer of 2008, Baltierra complained to Ortiz about the number of hours he worked relative to his compensation, and Ortiz began to pay him $600 per week for approximately seventy-two hours of work. (Baltierra Aff. ¶ 6.) In March 2013, Baltierra quit his job with Advantage Pest Control. (Baltierra Aff. ¶ 7.) On or about April 1, 2013, Ortiz asked Baltierra to return to work, and assured him conditions would be better if he did. (Baltierra Aff. ¶ 7.) Between April 1, 2013 and July 30, 2014, when he commenced this lawsuit, Baltierra was paid $300 per week for approximately sixty-three hours of work. (Baltierra Aff. ¶ 7.) Baltierra was not paid overtime or spread of hours pay. (Balteirra Aff. ¶¶ 9-10.)

After Baltierra filed this lawsuit on July 30, 2014, Ortiz would not permit him to work as many hours, and for a few months required him to punch in and out of work. (Baltierra Aff.

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¶ 8.) Other than that brief period, defendants did not keep track of Baltierra's hours. (Balteirra Aff. ¶ 13.) Although other employees clocked in and out, Baltierra was instructed not to. (Balteirra Aff. ¶ 13.) Prior to filing this lawsuit, Baltierra took it upon himself to clock in and out a few times, to show defendants how much he was working. (Baltierra Aff. ¶ 13.) Baltierra does not know what happened to his punch cards, but he was not compensated differently for his time when he used them. (Baltierra Aff. ¶ 13.) In May 2014, Baltierra was given one of his punch cards, but it had been adjusted by hand to reflect fewer hours. (Baltierra Aff. ¶ 13; see also Dkt. No. 42: Chickedantz Aff. Ex. E.)

Plaintiff Perez filed an affidavit stating that he began working at Advantage Pest Control as an exterminator on or about August 15, 2013. (Dkt. No. 44: Perez Aff. ¶ 3.) Ortiz told Perez that he "would be in 'training' until [he] was 'ready' to be an exterminator." (Perez Aff. ¶ 4.) Perez was never told how much he would be paid or how many hours he was required to work. (Perez Aff. ¶¶ 4, 9.) Perez typically worked six days per week, from 7:30 a.m. until 5:30 or 6:00 p.m, at least sixty hours per week. (Perez Aff. ¶ 5.) Perez observed that nearly every evening, Ortiz took plaintiff Baltierra with him to perform night jobs. (Perez Aff. ¶ 6.)

On about September 15, 2013, Perez asked to be paid for the previous month's work. (Perez Aff. ¶ 7.) Ortiz told Perez that he was not yet ready to be paid. (Perez Aff. ¶7.) Perez quit, and never was compensated for any of the time he worked at Advantage Pest Control. (Perez Aff. ¶¶ 7-8.) Defendants did not keep track of the time Perez worked, and although he punched in and out a few times, his punch cards "always disappeared" and he was not compensated for the time reflected on them. (Perez Aff. ¶ 10.)

Plaintiff Kelvin Jaquez filed an affidavit stating that he began working at Advantage Pest Control on or about November 1, 2008. (Dkt. No. 45: Jaquez Aff. ¶ 3.) Ortiz told Jaquez that

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he "would be in 'training' until [he] was 'ready to be an exterminator.'" (Jaquez Aff. ¶ 4.) Jaquez was never told how much he would be paid or how many hours he was required to work. (Jaquez Aff. ¶¶ 4, 11.) Jaquez typically worked six days per week, from 8:00 a.m. to 5:00 p.m, for at least fifty hours per week. (Jaquez Aff. ¶ 5.) From November 1, 2008 until December 31, 2008, Jaquez was paid $100 per week for a minimum of fifty hours of work. (Jaquez Aff. ¶ 6.) On January 1, 2009, Ortiz told Jaquez that he was "'ready'" to be an exterminator, and would be paid $300 per week. (Jaquez Aff. ¶ 7.) Jaquez was not told how many hours he was expected to work as an exterminator, or what his hourly rate was. (Jaquez Aff. ¶ 7.) Jaquez occasionally went on night jobs with Ortiz, and on those days usually worked until 10:00 p.m. (Jaquez Aff. ¶ 8.) Jaquez observed that Baltierra went on night jobs with Ortiz nearly every day. (Jacquez Aff. ¶ 8.) Jaquez was never paid overtime, although he always worked more than forty hours per week. (Jaquez Aff. ¶ 10.) Jaquez never received a wage statement indicating his hourly wage or the number of hours he worked. (Jaquez Aff. ¶ 11.) Defendants did not keep track of Jaquez's time, and he never clocked in or out of work. (Jaquez Aff. ¶ 12.)

Plaintiffs' attorney attached a chart to her affidavit, dividing plaintiffs' employment into periods based upon their wages and detailing the damage calculation during each period. (Chickedantz Aff. Ex. F: Calculations Chart.) Plaintiffs claim that defendants owe them a total of $460,990.66 for unpaid wages, overtime and spread of hours wages, liquidated damages, and penalties for notice and record keeping violations. (Chickedantz Aff. ¶ 19 & Ex. F: Calculations Chart.)

Defendants withdrew their answer on August 10, 2015 (see Dkt. No. 47: 8/10/15 Conf. Tr. at 6), and did not submit any papers in opposition to the inquest.

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ANALYSIS

I. APPLICABLE LEGAL STANDARDS

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