Herrera v. Mitch O'Hara LLC, Civil Action No. 16-1726 (ABJ).

• Citation: 257 F.Supp.3d 37
• Decision Date: 05 July 2017
• Docket Number: Civil Action No. 16-1726 (ABJ).
• Parties: Gabriel Cortes HERRERA, et al., Plaintiffs, v. MITCH O'HARA LLC, et al., Defendants.
• Court: U.S. District Court — District of Columbia

257 F.Supp.3d 37

Gabriel Cortes HERRERA, et al., Plaintiffs,

v.MITCH O'HARA LLC, et al., Defendants.

Civil Action No. 16-1726 (ABJ).

United States District Court, District of Columbia.

Signed July 5, 2017

Michael K. Amster, Zipin, Amster & Greenberg, LLC, Silver Spring, MD, for Plaintiffs.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiffs Gabriel Cortes Herrera, Neftali G. Martinez, Ubaldo O. Vivar Martinez, and Juan De Dios Martinez Herrera have brought this action against defendants Mitch O'Hara LLC and the owner-operator of that corporation, Tyra Hargis, alleging that defendants violated the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. ("FLSA"), the D.C. Minimum Wage Act Revision Act, D.C. Code § 32–1001 et. seq. ("DCMWA"), and the D.C. Wage Payment and Collection Law, D.C. Code § 32–1301 et. seq. ("DCWPCL") because they failed to pay both regular wages for the last two weeks of plaintiffs' employment and overtime wages for plaintiffs' entire term of employment. Compl. [Dkt. # 1] ¶¶ 17–18.

After defendants failed to respond to the lawsuit, the Clerk of Court entered a default against each defendant. Clerk's Entry of Default [Dkt. # 10]; Clerk's Entry of Default [Dkt. # 11]. Plaintiffs then filed a motion for default judgment. Mot. for Default J. of Amount Certain [Dkt. # 13] ("Pls.' Mot."); Mem. in Supp. of Pl.'s Mot. [Dkt. # 13–1] ("Pls.' Mem."). For the reasons that follow, the motion will be granted and judgment will be entered against defendants in the amount of $37,704.00, plus $13,755.90 in costs and attorneys' fees.

BACKGROUND

The complaint states that Mitch O'Hara LLC is a Washington D.C. corporation, and that Tyra Hargis owns and operates the company. Compl. ¶¶ 2–3. Plaintiffs worked for defendants as concrete finishers and foremen. Id. ¶ 4. Plaintiff Neftali Martinez alleges that he worked for defendants from February 1, 2016 until April 1, 2016. Id. ¶ 11. He alleges that he was paid $27 per hour, even for the hours that he worked in excess of forty hours per week, and that defendants never paid him for his final two weeks of work. Id. ; see also Aff. of Neftali G. Martinez, Ex. 1 to Pls.' Mot. [Dkt. # 13–2] ("Martinez Aff.") ¶ 5.¹

Plaintiffs Ubaldo Vivar Martinez and Juan de Dios Martinez Herrera allege that they worked for defendants during the same two-month time period, from February 1 to April 1, 2016, that they were both paid $23 per hour, even for the time that they worked in excess of forty hours per week, and that defendants never paid either for their last two weeks of work. Compl. ¶¶ 12–13; Aff. of Ubaldo O. Vivar Martinez, Ex. 3 to Pls.' Mot. [Dkt. # 13–4] ("Vivar Martinez Aff.") ¶ 5; Aff. of Juan De Dios Martinez Hererra, Ex. 2 to Pls.' Mot. [Dkt. # 13–3] ("Martinez Herrera Aff.") ¶ 5.

And plaintiff Gabriel Cortes Herrera alleges that he worked for defendants from March 15, 2016 to March 24, 2016, at the agreed rate of $23 per hour. Compl. ¶ 14. Plaintiff Cortes Herrera alleges that defendants never paid him for the ninety-three hours that he worked over his two week term of employment. Id. ; see also Aff. of Gabriel Cortes Herrera, Ex. 4 to Pls.' Mot. [Dkt. # 13–5] ("Cortes Herrera Aff.") ¶ 5.

Plaintiffs filed this three-count complaint on August 25, 2016, alleging that defendants violated the FLSA and DCMWA by failing to pay them overtime for any hours worked in excess of forty hours per week, Compl. ¶¶ 21–32 (Counts I and II), and that defendants violated the DCWPCL by failing to pay them for all of their hours worked. Id. ¶¶ 34–40 (Count III). Defendant Mitch O'Hara LLC was served on October 11, 2016, Aff. of Service [Dkt. # 3], and defendant Hargis was served on March 15, 2017. Aff. of Service [Dkt. # 7]. After neither defendant answered in the time permitted by Federal Rule of Civil Procedure 12, plaintiffs sought a clerk's entry of default. See Mot. for Entry of Default [Dkt. # 8]; Mot. for Entry of Default [Dkt. # 9]. After the Clerk of Court entered defendants' default, plaintiffs filed a motion for a default judgment. Pls.' Mot.

STANDARD OF REVIEW

"The determination of whether default judgment is appropriate is committed to the discretion of the trial court." Int'l Painters & Allied Trades Indus. Pension Fund v. Auxier Drywall, LLC , 531 F.Supp.2d 56, 57 (D.D.C. 2008), citing Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980). Upon entry of default by the clerk of the court, the "defaulting defendant is deemed to admit every well-pleaded allegation in the complaint." Int'l Painters & Allied Trades Indus. Pension Fund v. R . W . Amrine Drywall Co. , 239 F.Supp.2d 26, 30 (D.D.C. 2002) (internal citation omitted). "Although the default establishes a defendant's liability, the court is required to make an independent determination of the sum to be awarded unless the amount of damages is certain." Id. , citing Adkins v. Teseo , 180 F.Supp.2d 15, 17 (D.D.C. 2001). Accordingly, when moving for a default judgment, the plaintiff must prove its entitlement to the amount of monetary damages requested. Id ."In ruling on such a motion, the court may rely on detailed affidavits or documentary evidence to determine the appropriate sum for the default judgment." Id ., citing United Artists Corp. v. Freeman , 605 F.2d 854, 857 (5th Cir. 1979).

ANALYSIS

I. Liability

The Fair Labor Standards Act requires an employer to pay his employees for hours worked in excess of 40 hours per week "at a rate not less than one and one-half times the regular rate at which [the employee] is employed." 29 U.S.C. §§ 207(a)(1)–(2). And the D.C. Minimum Wage Act requires that an employer must compensate an employee who works "in excess of 40 hours at a rate not less than 1 1/2 times the regular rate at which the employee is employed." D.C. Code § 32–1003(c).

Under federal law, "[a]ny employer who violates the provisions of ... section 207 of [the FLSA] shall be liable to the employee or employees affected in the amount of their ... unpaid overtime compensation ... and an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). While liability under the FLSA substantially overlaps with the provisions of the D.C. Minimum Wage Act, the liquidated damages provided by the D.C. statute are greater than those provided by the FLSA. Compare 29 U.S.C. § 216(b) ( "additional [amount equal to unpaid overtime compensation] as liquidated damages"), with D.C. Code § 32–1308 ("liquidated damages equal to treble the amount of unpaid wages").²

Plaintiffs have averred in sworn affidavits that they were not paid the proper rate for work that they engaged in in excess of forty hours per week, and that they were not paid for their final two weeks of work. Where, as here, there is a complete "absence of any request to set aside the default or suggestion by the defendant that it has a meritorious defense, it is clear that the standard for default judgment has been satisfied." Auxier Drywall , 531 F.Supp.2d at 57.

Plaintiff also moved for default against Tyra Hargis, who the complaint describes as the person who "owns and operates" Mitch O'Hara LLC. See Compl. ¶ 3. For an employer to be liable in an individual capacity, she must qualify as an employer under the FLSA and the DCWPCL. See Ventura v. Bebo Foods , 738 F.Supp.2d 1, 5 & n.2 (D.D.C. 2010) (applying individual liability analysis under the FLSA to claims brought under the DCWPCL). "[T]he overwhelming weight of authority is that a corporate officer with operational control of a corporation's covered enterprise is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid wages." Perez v. C.R. Calderon Constr., Inc. , 221 F.Supp.3d 115, 143–44 (D.D.C. 2016), quoting Ruffin v. New Destination , 800 F.Supp.2d 262, 269 (D.D.C. 2011). Courts consider a number of factors in determining whether a corporate officer has the requisite operational control, such as whether the individual was responsible for hiring and firing, controlling work schedules, establishing pay rates, and maintaining employment records. Ventura , 738 F.Supp.2d at 6.

Here, plaintiffs allege that Hargis had the "power to hire, fire, suspend, and otherwise discipline Plaintiffs;" that she "[h]ad the power to supervise" their work and ensure that it was of a sufficient quality; that she "[s]et and controlled their work schedule," or at least, "had the power to set and control" their schedules; and that she either "[s]et and determined" or "had the power to set and determine" their rates of pay. Compl. ¶ 10. And plaintiffs have each averred that "Tyra Hargis was the owner and operator of Mitch O'Hara LLC;" she was their "boss and the person who hired [them] to perform work;" and she "controlled the day-to-day operations of Mitch O'Hara LLC and [plaintiffs'] rate and method of pay." Martinez Aff. ¶ 4; Martinez Herrera Aff. ¶ 4; Vivar Martinez Aff. ¶ 4; Cortes Herrera Aff. ¶ 4. Those facts sufficiently establish that Hargis is an employer under the FLSA because she had a "significant ownership interest in [Mitch O'Hara LLC]" and "operational control" over it. Ventura , 738 F.Supp.2d at 6.

With no response from defendants, the Court accepts the well-pleaded allegations in the complaint and the statements in plaintiffs' affidavits as true, and it will find Mitch O'Hara LLC and Tyra Hargis to be jointly and severally liable to plaintiffs.

II. Damages

"When a defendant has failed to respond, the Court must make an independent determination—by relying on affidavits, documentation, or an evidentiary hearing—of the sum to be awarded as damages." Ventura v. L.A. Howard Constr. Co. , 134 F.Supp.3d 99, 104 (D.D.C. 2015). Here, plaintiffs have each submitted an affidavit to provide proof of their damages.

The DCWPCL provides for liquidated damages equal to either "10 per centum of the unpaid wages for each working day during which such failure shall continue after the day upon which payment is hereunder required, or an amount equal to treble the unpaid wages,...