Marin v. Aida, Inc.

• Decision Date: 16 April 2014
• Docket Number: Case No. 5:13–CV–05255.
• Parties: Luis MARIN, Plaintiff v. AIDA, INC. d/b/a Celi's True Mexican Cuisine and Jose Oseguera, Defendants.
• Court: U.S. District Court — Western District of Arkansas

992 F.Supp.2d 913

Luis MARIN, Plaintiff

v.AIDA, INC. d/b/a Celi's True Mexican Cuisine and Jose Oseguera, Defendants.

Case No. 5:13–CV–05255.

United States District Court,

W.D. Arkansas,

Fayetteville Division.

Signed April 16, 2014.

Annie Smith, Trevor B. Townsend, Bethany N. Whitfield, University of Arkansas School of Law, Fayetteville, AR, for Plaintiff.

ORDER

P.K. HOLMES, III, Chief Judge.

Plaintiff Luis Marin brought this action alleging that Defendant AIDA, Inc. d/b/a Celi's True Mexican Cuisine (“Celi's”) and Defendant Jose Oseguera violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. and the Arkansas Minimum Wage Act (“AMWA”), A.C.A. §§ 11–4–201 et seq., and Arkansas common law by failing to pay him wages and tips owed for work performed during his employment. Defendants failed to answer or otherwise respond to the complaint despite being appropriately served (see affidavits of service, Docs. 9 and 10), and have failed to appear at all in this matter. Accordingly, the Clerk of Court entered default (Doc. 16) against them on December 18, 2013. Currently before the Court are Plaintiff's uncontroverted motion for default judgment (Doc. 17), supporting affidavit (Doc. 17–1), and memorandum in support (Doc. 18).

An entry of default by the clerk does not automatically entitle the plaintiff to a default judgment. Instead, it is within the Court's discretion to determine whether a default judgment should be entered. Fed.R.Civ.P. 55(b)(1). As a consequence of default, Defendants are deemed to have admitted the factual allegations in the complaint. SeeFed.R.Civ.P. 8(b)(6) (“An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.”); Murray v. Lene, 595 F.3d 868, 871 (8th Cir.2010) (“Upon default, the factual allegations of a complaint (except those relating to the amount of damages) are taken as true.”). While the factual allegations are taken as true, Plaintiff must prove the allegations regarding the amount of damages to a reasonable degree of certainty. See Everyday Learning Corp. v. Larson, 242 F.3d 815, 818–19 (8th Cir.2001) (noting that even where a default judgment is entered and liability is established, a plaintiff must still prove his or her actual damages to a reasonable degree of certainty.).

Under the FLSA, when an employee is engaged in commerce or is employed in an enterprise engaged in commerce, the employee must be paid a minimum hourly wage of $7.25 and at least one and a half times his or her regular hourly rate for all hours worked over 40 per week. 29 U.S.C. §§ 206(a)(1)(C), 207(a)(1). In the complaint, Plaintiff alleges that both Defendants were his “employers” within the meaning of the FLSA. He also alleges that Defendant Oseguera—as the owner, officer, director, and registered agent of Celi's—participated in the restaurant's day-to-day operations, managed the restaurant, and made all business decisions, including hiring and firing employees and distributing employees' pay. Plaintiff specifically alleges that Oseguera hired him, determined his hourly wage, set his work schedule, determined his work duties, and signed and issued his paychecks. Furthermore, Plaintiff alleges that he was employed by Defendants from August 20, 2011 until February 17, 2013; that he was engaged in commerce by regularly performing credit card transactions; and that he was not paid a minimum wage for work performed for Defendants during the weeks of November 12, 2012; November 19, 2012; and February 11, 2013. He also alleges that he was not paid the appropriate overtime rate of pay for hours worked in excess of 40 per week.

Because Defendants are in default, they have admitted the above allegations. The Court finds that Defendants are “employers” under the FLSA, and that Plaintiff was employed jointly by both Defendants. Accordingly, Defendants are jointly and severally liable for any unpaid minimum wages and overtime compensation due to Plaintiff. See29 C.F.R. § 791.2(a) (providing that when an individual is employed by two or more employers within the scope of a single employment, “all joint employers are responsible, both individually and jointly, for compliance with [the FLSA] ...”); Solis v. Hill Country Farms, Inc., 808 F.Supp.2d 1105, 1115 (S.D.Iowa 2011)aff'd,469 Fed.Appx. 498 (8th Cir.2012) (“The 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.”). The Court further finds that Plaintiff has established liability under the FLSA. Defendants are therefore jointly and severally liable for the unpaid minimum wages and overtime compensation owed to Plaintiff.

Plaintiff acknowledges that his claims under the FLSA, the AMWA, and the Arkansas common law of unjust enrichment are alternative theories of liability. (Doc. 18, n. 2 p. 13). Furthermore, he only seeks damages under the FLSA. Id. As the Court has determined that Plaintiff is entitled to recover under the FLSA, it is not necessary to address Plaintiff's alternative theories of liability for recovering unpaid minimum wages and overtime.

The only remaining claim for the Court to assess is Plaintiff's claim for conversion based on Defendants' retention of tips earned by Plaintiff. Plaintiff alleges that customers regularly left cash and credit card tips, Plaintiff and his...