Perez v. C.R. Calderon Constr., Inc., Civil Action No. 12–697 (BAH)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtBERYL A. HOWELL, Chief Judge
Citation221 F.Supp.3d 115
Parties Freddy Paz PEREZ, et al., Plaintiffs, v. C.R. CALDERON CONSTRUCTION, INC., et al., Defendants.
Docket NumberCivil Action No. 12–697 (BAH)
Decision Date22 December 2016

221 F.Supp.3d 115

Freddy Paz PEREZ, et al., Plaintiffs,
v.
C.R. CALDERON CONSTRUCTION, INC., et al., Defendants.

Civil Action No. 12–697 (BAH)

United States District Court, District of Columbia.

Signed December 22, 2016


221 F.Supp.3d 119

Andrew Hass, Washington, DC, Megan Hamilton, Robert S. Porter, Omar Vincent Melehy, Melehy & Associates LLC, Silver Spring, MD, for Plaintiffs.

Leonard Arthur Sacks, Leonard A. Sacks & Associates, P.C., Rockville, MD, Leonard Paul Buscemi, Law Offices of Leonard P. Buscemi, Arlington, VA, Jennifer A. Mahar, Smith, Pachter, McWhorter, PLC, Tysons Corner, VA, for Defendants.

MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

BERYL A. HOWELL, Chief Judge

Thirteen construction workers bring this action against a first-tier subcontractor and its owners, C.R. Calderon Construction, Inc. ("CRC"), Carlos R. Calderon and Ana P. Calderon (collectively, the "CRC defendants"), a second-tier subcontractor and its owner, Jacinto Construction, Inc. ("JCI") and Jacinto E. Cespedes ("Jacinto Cespedes") (collectively, the "JCI defendants"), and a company which served as a surety on a payment bond with CRC, Travelers Casualty and Surety Company of America ("Travelers"), for alleged violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , the District of Columbia Wage Payment and Collection Act ("DCWPCA"), D.C. Code § 32–1301 et seq ., and the District of Columbia Minimum Wage Revision Act ("DCMWRA"), D.C. Code § 32–1001 et seq. , and for common-law breach of contract.1 The plaintiffs seek the payment of wages they claim are owed in connection with drywall, ceiling and other work they performed on a construction project at the H. Carl Moultrie Courthouse in Washington, D.C (the "Project"). The defendant CRC has asserted cross-claims for indemnification and breach of contract against the JCI defendants, and the JCI defendants, likewise, have asserted cross-claims for contribution and breach of contract against the CRC defendants. Following a bench trial, the Court concludes that the JCI and CRC defendants were plaintiffs' employers under the relevant statutes and are liable to plaintiffs for unpaid wages and statutory liquidated damages, and that Travelers is liable to the extent of its surety bond with CRC. Finally, since the Court declines to enforce the subcontracts between CRC and JCI, the various cross-claims among the CRC and JCI defendants are denied. The factual and legal findings supporting these conclusions are summarized after review of the procedural background in this case.

I. PROCEDURAL BACKGROUND

The plaintiffs' allegations as well as significant issues raised and either resolved or deferred in pre-trial motions are summarized below.

A. CLAIMS

The plaintiffs' operative complaint in this action, Pls.' First Amended Compl. ("Pls.' FAC"), ECF No. 40, asserts six claims for relief. All thirteen plaintiffs claim that the CRC and JCI defendants

221 F.Supp.3d 120

violated (1) the regular payment schedule requirement of the DCWPCA, by failing to pay the plaintiffs promptly, on regular payment dates, and upon the plaintiffs' discharge, for "all wages earned" for certain work performed, id. ¶¶ 39–50 (Count I); (2) the prompt payment requirement of the FLSA, by failing to pay the plaintiffs "promptly on regular payment dates" for certain work performed, id. ¶¶ 56–57 (Count III); (3) the minimum wage provisions of the DCMWRA, by failing to pay the plaintiffs minimum wages "for the first 40 hours that Plaintiffs worked" for certain work performed, id. ¶¶ 58–63 (Count IV); and (4) the minimum wage provisions of the FLSA, by failing to pay the plaintiffs minimum wages "promptly on regular payment dates" for certain work performed, id. ¶¶ 64–72 (Count V). All thirteen plaintiffs additionally claim that the defendant Travelers breached the terms of a payment bond by which Travelers, acting as a surety, agreed to answer for the debts owed by the defendant CRC to laborers on the Project. Id. ¶¶ 73–77 (Count VI). Lastly, nine plaintiffs—Gerardo Moya, Mario Moya, Peter Soto, Wilson Perez Zapata, Jose Lenin Rocha, Juan Amurrio Quiroz, Edgardo Pablo Terceros, Samuel Lopez, and Jose Rocha Cespedes—claim that all the defendants violated the overtime provisions of the FLSA and the DCMWRA by failing to pay these plaintiffs overtime wages earned. Id. ¶¶ 51–55 (Count II). The plaintiffs seek unpaid wages and liquidated damages in the total amount of approximately $340,974.64, an unspecified amount in "unpaid overtime wages," id. at 13, "an additional amount of liquidated damages equal to the unpaid overtime wages," id. at 14, as well as attorneys' fees and costs.

The defendant CRC, in its operative cross-complaint in this action, CRC's First Amended Cross–Compl. Against JCI Defs. ("CRC's Cross–Compl."), ECF No. 79, asserts four cross-claims against the JCI defendants. Specifically, CRC claims that it is entitled to indemnification from the defendant JCI for any amounts found to be owed to the plaintiffs (1) based on "two sub-subcontract [ ]" agreements between CRC and JCI, id. ¶¶ 11–15 (Count I), and (2) by the Department of Labor for any Davis–Beacon Act violations arising from the plaintiffs' work on the Project, "[a]s a direct result of JCI's actions and inactions," id. ¶¶ 16–19 (Count II). CRC further claims that it is entitled to indemnification from the defendant Jacinto Cespedes, personally, for any amounts found by the Department of Labor to be owed to the plaintiffs for any Davis–Bacon Act violations arising from the plaintiffs' work on the Project, because Cespedes allegedly knowingly signed certified payrolls and false certifications that "JCI had paid for all labor supplied to the Project." Id. ¶¶ 20–28 (Count III). Lastly, CRC asserts a breach of contract claim against the defendant JCI for damages in the amount of $200,879.26 as a result of JCI's breach of the two subcontracts when JCI allegedly abandoned and failed to complete the work for the Project. Id. ¶¶ 29–36 (Count IV).

The JCI defendants assert similar cross-claims against the CRC defendants. See JCI Defs.' Countercl. Against CRC Defs. ("JCI's Cross–Compl."), ECF No. 29.2 The JCI defendants claim that they are entitled to contribution from the CRC defendants "for any amounts found" to be owed by the JCI defendants to the plaintiffs. Id. at 3.3 The JCI defendants further assert

221 F.Supp.3d 121

they are entitled to damages "resulting from breach of agreement" by the CRC defendants, and that the CRC defendants failed to pay JCI all it was owed under the parties' "agreement for services," id. ¶ 1, as well as "for extra work" performed by JCI outside the scope of the subcontracts, id. ¶ 2; "for overtime work" for which the CRC defendants promised to pay; for "holiday pay cost for the plaintiffs that [JCI] never contracted to pay," id. ¶ 4; and "for work [Cespedes] personally performed," id. ¶¶ 3–5.

B. DISPOSITIVE MOTIONS

The parties engaged in extensive motions practice requiring the resolution prior to trial of, inter alia , seven dispositive motions, including a motion to dismiss or, in the alternative, for summary judgment filed by Travelers, ECF No. 43; two motions for partial summary judgment filed by the plaintiffs, ECF Nos. 45, 96; and three motions for summary judgment filed by the CRC defendants, ECF Nos. 49, 95, 99.

Specifically, the Court denied cross-motions filed by the plaintiffs and Travelers regarding the issue of Travelers' liability for breach of contract, under Count VI of the FAC, based on a payment bond in the amount of $929,693, which Travelers signed as a surety on March 4, 2011, in connection with CRC's subcontract agreement ("Prime Subcontract") with the Project's prime contractor, Whiting–Turner Contracting Company ("Whiting–Turner").4 Mem. & Order (July 10, 2013) at 2, ECF No. 58. Finding the language of the bond unambiguous, the Court concluded "that the plaintiffs are potential third-party beneficiaries of the bond" and held that, as a result, Travelers' liability, if any, depends entirely upon CRC's liability. Id. at 8, 10–12; see id. at 11 ("Travelers' obligation under the payment bond is co-extensive with [CRC]'s obligation to pay ‘all persons supplying labor ... in the performance of the said Contract.’ " (ellipsis in original)). CRC's liability and the plaintiffs' third-party-beneficiary status, however, could not definitively be determined due to a genuine dispute of material fact as to whether CRC was the plaintiffs' employer and "obligated to pay the plaintiffs for their work," which question "remain[ed] to be decided." Id. at 11.

For the same reason, the Court subsequently denied the CRC defendants' motion for summary judgment regarding whether the plaintiffs were the CRC defendants' "employees" for purposes of the DCWPCA, the DCMWRA, and the FLSA. Order (Nov. 15, 2013) at 1, ECF No. 74. Material factual disputes precluded a determination of whether the plaintiffs were the CRC defendants' "employees," including, inter alia , factual disputes as to whether the CRC defendants (1) had the express or de facto power to hire and fire the plaintiffs, (2) supervised or controlled...

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  • Garcia v. Skanska USA Bldg., Inc., Civil Action No. 17-cv-0629 (DLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 24, 2018
    ...to be the DBA-mandated prevailing wages for a carpenter—irrespective of "how DOL would classify the plaintiffs' correct wage rate." 221 F.Supp.3d 115, 149 (D.D.C. 2016).4 The court cited Operating Engineers Health & Welfare Trust Fund v. JWJ Contracting Co. , 135 F.3d 671 (9th Cir. 1998), C......
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    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2017
    ..."determinations of employer or employee status under the FLSA apply equally under the [DCMWRA]." Perez v. C.R. Calderon Constr., Inc. , 221 F.Supp.3d 115, 138 (D.D.C. 2016) ; see also Gainor v. Optical Soc'y of Am., Inc., 206 F.Supp.3d 290, 297 (D.D.C. 2016) ; Galloway v. Chugach Gov't Serv......
  • Medina v. Kevorkian Cleaning Co., Civil Action No. 18-1291 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 17, 2020
    ...and the DCWPCL since that would result in a double (or triple) recovery for unpaid wages." Perez v. C.R. Calderon Constr., Inc., 221 F. Supp. 3d 115, 139 (D.D.C. 2016).Defendants argue that Plaintiff's claims brought under these statutes should be rejected for several reasons. First, they a......
  • Herrera v. Mitch O'Hara LLC, Civil Action No. 16-1726 (ABJ).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 5, 2017
    ...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 determi......
  • Request a trial to view additional results
10 cases
  • Garcia v. Skanska USA Bldg., Inc., Civil Action No. 17-cv-0629 (DLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 24, 2018
    ...to be the DBA-mandated prevailing wages for a carpenter—irrespective of "how DOL would classify the plaintiffs' correct wage rate." 221 F.Supp.3d 115, 149 (D.D.C. 2016).4 The court cited Operating Engineers Health & Welfare Trust Fund v. JWJ Contracting Co. , 135 F.3d 671 (9th Cir. 1998), C......
  • Murcia v. Contractors, Inc., Civil Action No. 16–2065 (RDM)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 5, 2017
    ..."determinations of employer or employee status under the FLSA apply equally under the [DCMWRA]." Perez v. C.R. Calderon Constr., Inc. , 221 F.Supp.3d 115, 138 (D.D.C. 2016) ; see also Gainor v. Optical Soc'y of Am., Inc., 206 F.Supp.3d 290, 297 (D.D.C. 2016) ; Galloway v. Chugach Gov't Serv......
  • Medina v. Kevorkian Cleaning Co., Civil Action No. 18-1291 (JEB)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 17, 2020
    ...and the DCWPCL since that would result in a double (or triple) recovery for unpaid wages." Perez v. C.R. Calderon Constr., Inc., 221 F. Supp. 3d 115, 139 (D.D.C. 2016).Defendants argue that Plaintiff's claims brought under these statutes should be rejected for several reasons. First, they a......
  • Herrera v. Mitch O'Hara LLC, Civil Action No. 16-1726 (ABJ).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 5, 2017
    ...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 determi......
  • Request a trial to view additional results

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