Opinion
CV-23-01111-PHX-DMF
11-07-2023
Eduardo Ramos, Plaintiff, v. Probuilds LLC, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
I. SUMMARY
On June 16, 2023, Plaintiff Eduardo Ramos (“Plaintiff”) filed a Verified Complaint (“Complaint”) naming three Defendants: Probuilds LLC, Joaquin Roberto Quijano, and Jane Doe Quijano (collectively, “Defendants”). (Doc. 1) In the Complaint, Plaintiff alleges violations of the Fair Labor Standards Act, the Arizona Minimum Wage Act, and the Arizona Wage Act. (Id. at 10-16) On July 5, 2023, Plaintiff consented to proceed before a United States Magistrate Judge. (Doc. 7)
Before appearances and consent of all defendants, there is not full consent for a Magistrate Judge to enter dispositive orders. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). Thus, pursuant to General Order 21-25, this Report and Recommendation is made to Senior United States District Judge Stephen M. McNamee.
On August 12, 2023, Plaintiff filed an Application for Entry of Default against Defendants due to Defendants' failure to plead or otherwise defend this action. (Doc. 15) On August 14, 2023, the Clerk of Court entered default against Defendants. (Doc. 16)
On September 7, 2023, Plaintiff filed the pending Motion for Entry of Default Judgment Against Defendants. (Doc. 17) No Defendant has filed a response to Plaintiff's Motion for Entry of Default Judgment, and the time to do so has expired. For the reasons set forth below, it is recommended that default judgment be entered in Plaintiff's favor against Defendants.
II. PROCEDURAL HISTORY
On June 16, 2023, Plaintiff filed a Complaint against Defendants asserting four counts for relief. (Doc. 1) Also on June 16, 2023, Plaintiff paid the filing fee, and summons were issued. (Docs. 3, 4)
Plaintiff verified the Complaint by declaring “under penalty of perjury that he has read the foregoing Verified Complaint and is familiar with the contents thereof. The matters asserted therein are true and based on his personal knowledge, except as to those matters stated upon information and belief, and, as to those matters, he believes them to be true.” (Doc. 1 at 18)
Plaintiff's Complaint alleges that this Court “has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 201, et seq. because this civil action arises under the Constitution and law of the United States” and that this Court “also has subject matter jurisdiction pursuant [sic] 28 U.S.C. § 1367 because the state law claims asserted herein are so related to claims in this action over which this Court has subject matter jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” (Doc. 1 at 2)
In Count One of the Complaint, Plaintiff asserts that all Defendants failed to pay Plaintiff overtime wages in violation of the Fair Labor Standards Act at 29 U.S.C. § 201, et seq. (“FLSA”). (Id. at 10-12) In Count Two, Plaintiff asserts that all Defendants failed to pay Plaintiff minimum wages for “approximately the final workweek of his employment with Defendants,” in violation of FLSA. (Id. at 12-13) In Count Three, Plaintiff asserts that all Defendants failed to pay Plaintiff minimum wages “for approximately the final workweek of his employment with Defendants,” in violation of the Arizona Minimum Wage Act, A.R.S. § 23-362, et seq. (“AMWA”). (Id. at 14-15) In Count Four, Plaintiff asserts that Defendant Probuilds LLC failed to pay Plaintiff his wages due and owed in violation of the Arizona Wage Act, A.R.S. § 23-350, et seq. (“AWA”). (Id. at 15-16)
On July 5, 2023, Plaintiff consented to Magistrate Judge Jurisdiction. (Doc. 7) On June 26, 2023, Defendants were served with the Complaint and summons through personal service upon Defendant Joaquin Roberto Quijano in Peoria, Arizona. (Docs. 12, 13, 14)
The docket reflects duplicate copies of proof of service upon Defendants at Docs. 9, 10, and 11.
On August 12, 2023, Plaintiff filed an Application for Entry of Default against Defendants. (Doc. 15) On the same day, Plaintiff's counsel certified that Plaintiff's Application for Entry of Default was mailed to Defendants at the address at which Defendants were served. (Id. at 2) On August 14, 2023, the Clerk of Court entered default against Defendants pursuant to Fed.R.Civ.P. 55(a). (Doc. 16)
On September 7, 2023, Plaintiff filed a Motion for Entry of Default Judgment Against Defendants (“Motion for Default Judgment”). (Doc. 17) In the motion, Plaintiff's counsel certified that a copy of Plaintiff's Motion for Default Judgment was mailed to Defendants at the address at which Defendants were served. (Id. at 13) No Defendant has filed a response to Plaintiff's Motion for Default Judgment, and the time to do so has expired.
III. JURISDICTION
A. Subject Matter Jurisdiction
A federal court must evaluate its subject matter jurisdiction in each case. Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1116 (9th Cir. 2004); Fed.R.Civ.P. 12(h)(3). If a plaintiff establishes federal question jurisdiction, this Court may exercise supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367 if such claims “derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them in one judicial proceeding.” Trustees of Constr. Indus. & Laborers Health & Welfare Tr. v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th Cir. 2003) (internal quotations omitted).
This Court may exercise subject matter jurisdiction over Plaintiff's FLSA claims because the claims are based on federal law and plaintiff may initiate an action pursuant to FLSA against an employer “in any Federal or State court of competent jurisdiction.” 29 U.S.C. § 216; 28 U.S.C. § 1331. Plaintiff's claims pursuant to the AMWA and AWA arise out of the same events as Plaintiff's FLSA claims; namely, Plaintiff's unpaid overtime and minimum wages for Plaintiff's employment with Defendants. Because Plaintiff's claims pursuant to the AMWA and AWA are so substantially related to Plaintiff's FLSA claims that they are part of the same case or controversy, this Court has supplemental jurisdiction over Plaintiff's Arizona state law claims arising under the AMWA and AWA. 28 U.S.C. § 1367(a).
B. Personal Jurisdiction
The Court must also evaluate whether personal jurisdiction is proper. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“district court has an affirmative duty to look into” personal jurisdiction when default judgment is sought); see also Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (no personal jurisdiction unless defendant has been properly served). This Court applies the long-arm statute of Arizona, which permits personal jurisdiction “to the maximum extent permitted by the Constitution of the United States[.]” Patterson v. Home Depot, USA, Inc., 684 F.Supp.2d 1170, 1175 (D. Ariz. 2010).
Accordingly, this Court may exercise personal jurisdiction if Defendants have “minimum contacts” with Arizona such that jurisdiction will not “offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (internal citations omitted). This Court may have general jurisdiction where Defendants' contacts with Arizona are “continuous and systematic[,]” Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984), or may have specific jurisdiction if Defendants have “purposely directed [their] activities at residents of the forum [] and the litigation results from alleged injuries that arise out of or relate to those activities.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985).
Defendant Joaquin Roberto Quijano was properly served with the Complaint and summons by personal service. (Doc. 13) Defendant Probuilds LLC was also properly served by personal service upon Defendant Joaquin Roberto Quijano, who is an owner of Probuilds LLC. (Doc. 12; Doc. 1 at 4, ¶ 11) Fed.R.Civ.P. 4(h) provides for proper service on an LLC by delivering the summons and complaint “to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process[.]” Defendant Jane Doe Quijano was also properly served because the summons and Complaint were left with her spouse, Defendant Joaquin Robert Quijano, at their residence. (Doc. 14); Fed.R.Civ.P. 4(e) (allowing for service by leaving a copy of the summons and complaint “at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there”). Plaintiff's Complaint states that Probuilds LLC is incorporated in Arizona and that Probuilds LLC and its owners, Joaquin Roberto Quijano and Jane Doe Quijano, regularly do business, have offices, and maintain agents for their business in Maricopa County, Arizona. (Doc. 1 at 2-3, ¶¶ 6, 8-11) Further, Plaintiff is a resident of the state of Arizona, and Plaintiff asserts that acts giving rise to the claims in the Complaint occurred in Arizona. (Id. at 2-3, ¶¶ 6-7)
The Court finds that Defendants have “continuous and systematic” contacts with Arizona and that Plaintiff's claims arise out of acts purposefully directed at the forum state of Arizona. Helicopteros Nacionales, 466 U.S. at 415; Burger King, 471 U.S. at 472. Because Defendants have sufficient minimum contacts with Arizona, personal jurisdiction in Arizona is proper. See, e.g., Hetland v. Hirsch, 2022 WL 657354, at *2 (D. Ariz. Mar. 4, 2022); Tolano v. El Rio Bakery, 2019 WL 6464748, at *2 (D. Ariz. Dec. 2, 2019).
IV. MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANTS PROBUILDS LLC, JOAQUIN ROBERTO QUIJANO, AND JANE DOE QUIJANO (Doc. 17)
Fed. R. Civ. P. 55(a) allows the clerk of court to enter default “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules[.]” Following entry of default, if a party has failed to appear or set aside the default, Fed.R.Civ.P. 55(b)(2) provides that the Court may enter default judgment. The Court maintains discretion as to whether to enter a default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In determining whether to grant a motion for default judgment, the Court may consider seven factors set forth in Eitel v. McCool:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing Moore's Federal Practice ¶ 55-05[2], at 55-24 to 55-26). The second and third Eitel factors, whether the substantive claims in the Complaint have merit and the sufficiency of the Complaint, “are often analyzed together and require courts to consider whether a plaintiff has stated a claim on which [he] may recover.” Vietnam Reform Party v. Viet Tan - Vietnam Reform Party, 416 F.Supp.3d 948, 962 (N.D. Cal. 2019).
Default judgment may not be entered against a minor or incompetent individual unless such individual is represented by a guardian, conservator, or other fiduciary who has made an appearance. Fed.R.Civ.P. 55(b)(2). Further, the Servicemembers Civil Relief Act provides special requirements that must be met before a court may enter default judgment against an individual in military service. 50 U.S.C. § 3931 (formerly cited as 50 U.S.C. § 520). Because Defendants are not minors, incompetent, or in the military, neither Fed.R.Civ.P. 55(b)(2) nor the Servicemembers Civil Relief Act prohibit this Court from entering a default judgment against Defendants. (See Doc. 15-1 at 2)
A. Possibility of Prejudice to Plaintiff
The first Eitel factor, the possibility of prejudice, supports entry of default judgment. Plaintiff will suffer prejudice is default judgment is not entered. The Complaint in this action pertains to wages that Plaintiff alleges Defendants have failed to pay to Plaintiff. (Doc. 1 at 6-10, ¶¶ 27-67) If the Court does not enter default judgment, Plaintiff will suffer delay in the resolution of his claims, and Plaintiff will “likely be without other recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). The first factor weighs in favor of default judgment.
B. Merits of Substantive Claim and Sufficiency of the Complaint
The second Eitel factor, whether the substantive claims in the Complaint have merit, and the third Eitel factor, sufficiency of the Complaint, are typically considered together and require Plaintiff to state a claim on which he may recover. Vietnam Reform Party, 416 F.Supp.3d at 962. Due to the Clerk of Court's entry of default pursuant to Fed.R.Civ.P. 55(a), the factual allegations in the Complaint are taken as true. TeleVideo, 826, F.2d at 917-18.
1. Counts One and Two (FLSA)
To state a minimum wage or overtime claim under FLSA, Plaintiff “must establish three elements: (1) [he] was an employee of Defendants; (2) [he] was covered under the FLSA; and (3) Defendants failed to pay [his] minimum wage or overtime wages.” Smith v. Nov. Bar N Grill LLC, 441 F.Supp.3d 830, 834 (D. Ariz. 2020) (citing 29 U.S.C. § 206(a), 207(a)).
FLSA defines an employee as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). To distinguish between an employee and an independent contractor, the Court may consider six factors: “(1) the degree of the alleged employer's right to control the manner in which the work is to be performed; (2) the alleged employee's opportunity for profit or loss depending upon his managerial skill; (3) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer's business.” Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979).
Individual coverage under FLSA exists when an employee “is engaged in commerce or in the production of goods for commerce[.]” 29 U.S.C. § 206(a). Commerce is defined under FLSA as “trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b). Enterprise coverage under FLSA exists when an employee works for “an enterprise engaged in commerce or in the production of goods for commerce[.]” 29 U.S.C. § 206(a). An enterprise engaged in commerce “has employees engaged in commerce or in the production of goods for commerce, or [] has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and has an “annual gross volume of sales made or business done [] not less than $500,000[.]” 29 U.S.C. § 203(s)(1).
a. Whether Plaintiff Was an Employee of Defendants
Plaintiff asserts that he was an employee of Defendants and not an independent contractor because Defendants controlled Plaintiff's schedules; Plaintiff was economically dependent on Defendants; Defendants had the exclusive right to hire and fire Plaintiff; Defendants made the decision not to pay overtime to Plaintiff; Defendants supervised Plaintiff; Plaintiff had no opportunity for profit or loss in Defendants' business; Plaintiff's services for Defendants were integral to Defendants' business; Plaintiff was hired as a permanent employee; Plaintiff had no right to refuse work from Defendants; and Defendants did not allow Plaintiff to work for other companies. (Doc. 1 at 6-7, ¶¶ 33-36)
As for the first Driscoll factor, the degree of the alleged employer's control over the manner in which work was performed, Plaintiff asserts that Defendants controlled Plaintiff's schedule, Defendants had the exclusive right to hire and fire Plaintiff, Defendants supervised Plaintiff, Plaintiff had no right to refuse work assigned by Defendants, and Defendants did not allow Plaintiff to work for other companies. (Id.) The degree of alleged control over Plaintiff's work weighs in favor of Plaintiff's claim that he is an employee.
As for the second factor, the alleged employee's opportunity for profit or loss, Plaintiff asserts that Defendants compensated him “the same hourly rate of pay, regardless of the number of hours he worked in a given workweek, and regardless of whether he worked in excess of 40 hours in a given workweek.” (Id. at 6, ¶¶ 30-31) Plaintiff asserts that he was economically dependent on Defendants and that Plaintiff had no opportunity for profit or loss in Defendants' business. (Id., ¶¶ 35-36) Plaintiff's fixed wage and lack of opportunity for profit or loss weighs in favor of Plaintiff's claim that he was an employee. See Stamper v. Freebird Logistics Incorporated, 2022 WL 2316317, at *4 (D. Ariz. June 28, 2022) (collecting cases).
As for the third factor, the alleged employee's investment in equipment and materials or employment of helpers, Plaintiff asserts that he was economically dependent on Defendants and does not assert that he is invested in Defendants' business. (Doc. 1 at 6, ¶ 35) Plaintiff further asserts that he had no supervisory authority over any employees, had no authority to hire or fire employees in his work for Defendants, and did not manage the enterprise or department of the enterprise for which he was employed. (Id. at 9, ¶¶ 5257) The third factor weighs in favor of Plaintiff's claim that he is an employee.
As for the fourth factor, whether the services rendered required a special skill, Plaintiff states that he performed construction-related manual labor for Defendants. (Id. at 6, ¶ 28) Manual labor is generally not classified as a special skill. See Stamper, 2022 WL 2316317, at *4. As such, this factor weighs in favor of Plaintiff's claim that he is an employee.
As for the fifth factor, the permanence of the working relationship between Plaintiff and Defendants, Plaintiff asserts that he worked for Defendants from in or around April 2023 through May 22, 2023. (Doc. 1 at 6-7, ¶¶ 28, 37) Plaintiff does not allege that he worked for any other employer during his employment with Defendants; to the contrary, Plaintiff asserts that Defendants did not allow Plaintiff to work for other companies. (Id., ¶ 36) Plaintiff further states that he “was hired as a permanent employee, generally working in excess of 40 hours per week for approximately seven or eight workweeks.” (Id. at 7, ¶ 36) Although Plaintiff's brief employment with Defendants suggests impermanence, Plaintiff's assertion that he was hired as a permanent employee suggests a more permanent working relationship. Accordingly, this factor is neutral.
For the sixth factor, whether the alleged employee's services were integral to the alleged employer's business, Plaintiff asserts that his manual labor services were integral to Defendants' business. (Id. at 6, ¶ 28; Id. at 7, ¶ 36) Plaintiff asserts that “Defendants own and/or operate as Probuilds, an enterprise that performs construction and remodeling-related services in Maricopa County, Arizona.” (Id. at 6, ¶ 27) Accordingly, this factor weighs in favor of Plaintiff's claim that he is an employee.
In sum, the Driscoll factors weigh in favor of Plaintiff being an employee of Defendants under FLSA.
b. Whether Plaintiff Was Covered Under FLSA
In the Complaint, Plaintiff asserts that he was covered under FLSA because FLSA applies to Defendants and Plaintiff was a non-exempt employee. (Doc. 1 at 5, ¶¶ 17-18; 910, ¶¶ 61, 63) Plaintiff asserts that he was engaged in interstate commerce, that he regularly handled goods produced or transported in interstate commerce in his work for Defendants, and that Defendants had annual gross sales of at least $500,000. (Id. at 5, ¶¶ 23-26) Plaintiff's assertions in the Complaint sufficiently allege enterprise coverage under FLSA. See 29 U.S.C. § 206(a); 29 U.S.C. § 203(s)(1). Although FLSA excepts employees of the United States government, the United States Postal Service, a state, a government agency, or an agricultural employer and volunteers performing services for a public agency or for humanitarian purposes, 29 U.S.C. § 203(e)(2)-(5), Plaintiff does not assert that his services for Defendants fell under one of these categories.
c. Whether Defendants Failed to Pay Plaintiff's Minimum or Overtime Wages
In Count One of the Complaint, Plaintiff asserts that Defendants “failed to pay one and one-half times the applicable regular rate of pay for all hours worked in excess of 40 hours.” (Doc. 1 at 11, ¶ 70) In Count Two of the Complaint, Plaintiff asserts that Defendants failed “to compensate Plaintiff any wages whatsoever for approximately the final workweek of his employment with Defendants,” thereby failing “to pay Plaintiff the FLSA-mandated minimum wage.” (Id. at 12, ¶ 77)
Because the Court takes the factual allegations as true due to the Clerk of Court's entry of default, Plaintiff has stated a well-plead claim of unpaid overtime and minimum wages under FLSA in Counts One and Two.
2. Count Three (AMWA)
To state a claim under the AMWA, codified at A.R.S. § 23-362 et seq., Defendants “must be an employer under the statute, the plaintiff must be a qualified employee of the defendant[s], and ‘the plaintiff must allege that [he] was not paid the applicable minimum wage for hours worked.'” Nichol v. On Point Solar Power LLC, 2022 WL 2159051, at *3 (D. Ariz. June 15, 2022) (quoting Coe v. Hirsch, 2021 WL 5634798, at *2 (D. Ariz. Dec. 1, 2021), and citing A.R.S. § 23-363). The AMWA defines an employer to include a corporation, limited liability company, or individual “acting directly or indirectly in the interest of an employer in relation to an employee” but excludes small businesses with gross annual revenue below five hundred thousand dollars. A.R.S. § 23-362(B), (C). An employee under the AMWA is “any person who is or was employed by an employer but does not include any person who is employed by a parent or a sibling, or who is employed performing babysitting services in the employer's home on a casual basis.” A.R.S. § 23-362(A).
In his Complaint, Plaintiff asserts that Defendants are individuals and an enterprise which directed Plaintiff's work and that Defendants had gross annual revenue over five hundred thousand dollars. (Doc. 1 at 5, ¶¶ 21-23) Plaintiff asserts that he was an employee of Defendants pursuant to A.R.S. § 23-362. (Id., ¶ 20) There is no indication in the record that Plaintiff was employed by a parent or sibling or performed babysitting services. Plaintiff also asserts that Defendants “fail[ed] to compensate Plaintiff any wages whatsoever for approximately the final workweek of his employment with Defendants,” thereby “fail[ing] or refus[ing] to pay Plaintiff the Arizona-mandated minimum wage.” (Id. at 14, ¶¶ 82-83) Plaintiff has stated a well-plead claim of unpaid minimum wages under the AMWA in Count Three.
3. Count Four (AWA)
To state a claim under the AWA, codified at A.R.S. § 23-350 et seq., Plaintiff must show “that Defendants did not timely pay all wages due as required under the AWA.” Grabda v. IMS Acquisition LLC, 2020 WL 5544366, at *2 (D. Ariz. Sept. 16, 2020) (citing A.R.S. § 23-351(A), (C)); see also A.R.S. § 23-355.
In his Complaint, Plaintiff asserts that Defendant Probuilds LLC failed to “compensate Plaintiff wages due and owing to him.” (Doc. 1 at 15, ¶ 87) Because Plaintiff has alleged that Defendant Probuilds LLC did not timely pay Plaintiff wages due, Plaintiff has stated a well-plead claim under the AWA in Count Four.
C. Sum of Money at Stake
The fourth Eitel factor, the amount of money at stake in this action, supports default judgment. For the fourth Eitel factor, the Court “must consider the amount of money at stake in relation to the seriousness of Defendant's conduct.” PepsiCo, 238 F.Supp.2d at 1176. In the Complaint, Plaintiff seeks unpaid overtime wages from in or around April 2023 through May 22, 2023, as well as unpaid wages for Plaintiff's final workweek of his employment with Defendants. (Doc. 1 at 10-16, ¶¶ 68-92) In his Motion for Default Judgment, Plaintiff requests unpaid overtime wage and overtime damages only for his final workweek of employment with Defendants in the amount of $3,200.00 plus post-judgment interest, of which Plaintiff requests that Defendant Probuilds LLC be liable for the entire amount and that all Defendants be held jointly and severally liable for $2,277.50. (Doc. 17 at 11) The amount at stake here is reasonable and proportional to Defendants' failure to pay Plaintiff the applicable minimum wage and overtime wage. As such, the fourth factor weighs in favor of default judgment.
D. Possibility of a Dispute Concerning Material Facts
The fifth Eitel factor, the possibility of a dispute concerning the material facts in these proceedings, supports default judgment. No Defendant has appeared in this action, filed an answer, or otherwise responded to the factual allegations in the Complaint. Due to Defendants' failure to answer or otherwise contest the factual allegations in the Complaint, and given the general rule allowing the factual allegations in the Complaint to be taken as true, there is no appearance of any possibility of a dispute concerning the material facts in this matter. The fifth factor weighs in favor of entry of default judgment.
E. Excusable Neglect
The sixth Eitel factor, existence of excusable neglect, also supports default judgment. There is no evidence that Defendants' failure to appear, answer the Complaint, or otherwise defend against Plaintiff's claims is the result of excusable neglect. The Clerk of Court issued summons as to each Defendant on June 16, 2023. (Doc. 4) Defendants were served with the summonses and Complaint on June 26, 2023, through personal service pursuant to Fed.R.Civ.P. 4 upon Defendant Joaquin Roberto Quijano for each of the three defendants. (Docs. 12, 13, 14) Plaintiff's counsel certified that he mailed a copy of Plaintiff's Application for Entry of Default and Plaintiff's Motion for Default Judgment to Defendants at the address at which Defendants were served with the summonses and Complaint. (Doc. 15 at 2; Doc. 17 at 13)
Despite proper service upon Defendants, as well as mailing of the aforementioned documents to Defendants at the address at which they were served the summonses and Complaint, Defendants have failed to appear or respond to the Complaint in this matter. As such, the sixth factor weighs in favor of entry of default judgment.
F. Policy Favoring Decision on the Merits
Finally, the seventh Eitel factor, the policy favoring judgment on the merits, typically weighs against entry of default judgment. See Eitel, 782 F.2d at 1472 (default judgments are disfavored because “cases should be decided upon their merits whenever reasonably possible”). However, all Defendants have failed to answer the Complaint or otherwise appear in this matter. Under these circumstances, resolution of this matter on the merits would be impractical or impossible. Further, all Defendants have notice of these proceedings, have not appeared, and there is no dispute over the material facts. Here, the seventh factor weighs in favor of entry of default judgment.
G. Eitel Factors Weigh In Favor of Default Judgment
In sum, the Eitel factors weigh in favor of entry of default judgment against Defendants. It is therefore recommended that default judgment be entered in Plaintiff's favor against Defendants.
V. DAMAGES
Because default judgment is appropriate under the Eitel factors, the Court now turns to Plaintiff's damages. The Court does not take as true the allegations in Plaintiff's Complaint related to damages. TeleVideo, 826 F.2d at 917-18 (“upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”). Instead, Plaintiff “is required to prove all damages sought in the complaint.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). Plaintiff must provide evidence to support an award of damages but may do so by submitting a declaration or affidavit. Id. Plaintiff's requested default judgment “must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed.R.Civ.P. 54(c).
Plaintiff submitted a declaration with his Motion for Default Judgment regarding his hours worked and his wages. (Doc. 17-1) Plaintiff declares that his regular rate of pay was $20 per hour. (Id. at 3, ¶ 6) Plaintiff asserts that he worked approximately 50 hours during his final workweek of employment with Defendants and that ten of these hours were overtime. (Id., ¶ 8, 11) Accordingly, Plaintiff alleges the following damages.
A. FLSA Unpaid Minimum Wages
Pursuant to FLSA, an employee is entitled to his “unpaid minimum wages, or [his] unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Double damages are the norm, and single damages are the exception. See Alvarez v. IBP, Inc., 339 F.3d 894, 910 (9th Cir. 2003).
In his declaration submitted with his Motion for Default Judgment, Plaintiff asserts that his unpaid federal minimum wages amount to $362.50, or fifty hours times the federal minimum wage of $7.25 per hour. (Doc. 17-1 at 3, ¶ 8) Plaintiff asserts that his unpaid federal minimum wage damages should be statutorily doubled pursuant to 29 U.S.C. § 216(b), amounting to $725.00. (Id. at 4, ¶¶ 14-15)
B. FLSA Unpaid Overtime Wages
In his declaration submitted with his Motion for Default Judgment, Plaintiff asserts that his unpaid federal overtime wages amount to $100, or ten hours times half of Plaintiff's regular rate of pay of $20. (Id. at 3, ¶ 11) Plaintiff asserts that his unpaid federal overtime wage damages should be statutorily doubled pursuant to 29 U.S.C. § 216(b), amounting to $200.00. (Id. at 4, ¶¶ 14, 20) Although Plaintiff requests unpaid federal overtime wages for fewer hours than in the Complaint, Plaintiff's asserted damages do not “differ in kind from, or exceed in amount,” what Plaintiff demanded in the pleadings. Fed.R.Civ.P. 54(c). To the contrary, Plaintiff requests decreased damages in his Motion for Default Judgment and attached declaration-specifically, Plaintiff only requests unpaid federal overtime wage damages for one week of employment instead of the duration of Plaintiff's employment with Defendants. Further, Plaintiff requests the same unpaid federal overtime wage damages in his motion for default judgment as in the Complaint. Plaintiff's Complaint sufficiently put Defendants on notice of the potential award for unpaid federal overtime wages as requested in Plaintiff's Motion for Default Judgment. See, e.g., JPMorgan Chase Bank NA v. U.S. Metal Buildings Corporation, 2019 WL 5213337, at *3 (D. Ariz. Oct. 16, 2019) (entering default judgment where motion for default judgment requested a smaller amount of damages than complaint); Barlows v. Nguyen, 2023 WL 6467928, at *6 (C.D. Cal. Sept. 26, 2023) (complaint need not “state the exact amount of damages” sought in default judgment so long as defendant “was on reasonable notice of what was on stake should he fail to defend himself”).
C. AMWA Unpaid Minimum Wages
Pursuant to the AMWA, an employee is entitled to “the balance of the wages or earned paid sick time owed, including interest thereon, and an additional amount equal to twice the underpaid wages[.]” A.R.S. § 23-364(G).
In his declaration submitted with his Motion for Default Judgment, Plaintiff asserts that his unpaid Arizona minimum wages amount to $692.50, or fifty hours times Arizona's minimum wage of $13.85 per hour. (Doc. 17-1 at 3, ¶ 8) Plaintiff also asserts that his unpaid Arizona minimum wages should be trebled pursuant to A.R.S. § 23-364, amounting to $2,077.50. (Id. at 4, ¶ 16) Plaintiff states that because his unpaid Arizona minimum wages engulf his unpaid federal minimum wages, his AMWA damages are his appropriate liquidated unpaid minimum wage damages. (Id., ¶ 17)
D. AWA Unpaid Wages
Pursuant to the AWA, where an employer “fails to pay wages due any employee, the employee may recover [] an amount that is treble the amount of the unpaid wages.” A.R.S. § 23-355.
In his declaration submitted with his Motion for Default Judgment, Plaintiff asserts that his unpaid Arizona wages, exclusive of overtime, amount to $1,000.00, or fifty hours times Plaintiff's regular rate of pay of $20.00 per hour. (Doc. 17-1 at 3, ¶ 10) Plaintiff also asserts that his unpaid Arizona wages should be trebled pursuant to A.R.S. § 23-355, amounting to $3,000.00. (Id. at 4, ¶¶ 14, 18) Plaintiff states that because his unpaid Arizona wages engulf his unpaid Arizona minimum wages, his AWA damages are his appropriate unpaid regular wage damages, exclusive of overtime. (Id. at 13, 19)
In sum, Plaintiff requests total damages in the amount of $3,200.00, comprised of treble unpaid regular wage damages under the AWA in the amount of $3,000.00 (50 hours times Plaintiff's $20 regular rate of pay) and double federal overtime wage damages under FLSA in the amount of $200.00 (ten overtime hours times half Plaintiff's regular rate of pay, or $10). (Id. at 3-4, ¶¶ 8-21) Of the requested $3,200.00 award, Plaintiff requests that Defendant Probuilds LLC be liable for the entire amount and that all Defendants be jointly and severally liable for $2,277.50, which consists of Plaintiff's AMWA minimum wage damages and FLSA overtime wage damages. (Id. at 4-5, ¶¶ 15-21)
Plaintiff's requested relief accurately calculates the damages to which Plaintiff is statutorily entitled and is supported by Plaintiff's declaration. Accordingly, it is appropriate for this Court to award Plaintiff $3,200.00 in liquidated damages plus post-judgment interest against Defendant Probuilds LLC and against all Defendants jointly and severally for $2,277.50 of the $3200.
VI. ATTORNEY'S FEES AND COSTS
In an action for unpaid minimum or overtime wages pursuant to FLSA, a court “shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.” 29 U.S.C. § 216(b). An award of attorney's fees is mandatory, but the Court has discretion regarding the amount of reasonable fees. Alzate v. Creative Man Painting LLC, 2015 WL 789727, at *3 (D. Ariz. Feb. 25, 2015). A prevailing plaintiff in a suit under the AMWA is also “entitled to reasonable attorney's fees and costs of suit.” A.R.S. § 23-364(G).
In Plaintiff's Motion for Default Judgment, Plaintiff asserts that he is entitled to attorney's fees and costs and requests that the Court allow him to file a motion for attorney's fees and costs following a grant of entry of default judgment. (Doc. 17 at 10-11) Within fourteen (14) days, Plaintiff shall file a motion for attorney's fees and costs that complies with Local Rule of Civil Procedure (“LRCiv”) 54.2.
VII. CONCLUSION
For the reasons set forth above, it is recommended that Plaintiff's Motion for Entry of Default Judgment Against Defendants (Doc. 17) be granted, including award of $3,200.00 in unpaid wages plus post-judgment interest pursuant to 28 U.S.C. § 1961.
Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Entry of Default Judgment Against Defendants (Doc. 17) be granted.
IT IS FURTHER RECOMMENDED that Plaintiff be awarded $3,200.00 plus post-judgment interest against Defendant Probuilds LLC, and that all Defendants be jointly and severally liable for $2,277.50 of that amount plus post-judgment interest thereon.
IT IS FURTHER RECOMMENDED that within fourteen (14) days, Plaintiff shall file a motion for attorney's fees and costs that complies with LRCiv 54.2.
The above recommendations are not orders that are immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
IT IS ORDERED that the Clerk of Court send this Report and Recommendation via First Class U.S. Mail, postage prepaid to each of the following:
Probuilds LLC
13310 N. Plaza Del Rio Blvd., Unit 3115Peoria, AZ 85381
Joaquin Roberto Quijano
13310 N. Plaza Del Rio Blvd., Unit 3115
Peoria, AZ 85381
Jane Doe Quijano
13310 N. Plaza Del Rio Blvd., Unit 3115
Peoria, AZ 85381