Opinion
CV-23-00623-PHX-JZB
01-04-2024
Tyler Johnson, Plaintiff, v. Cameron Colvin, et al., Defendants.
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's Motion for Default Judgment (the “Motion”). (Doc. 18.) This Report and Recommendation is filed pursuant to General Order 21-25. The Court will recommend that Plaintiff's Motion be granted as to all named Defendants.
General Order 21-25 states in relevant part: “When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge, IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee. IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf: Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee. . . .”
I. Background.
On April 13, 2023, Plaintiff filed a Complaint against Cameron Colvin and Jane Doe Colvin, husband and wife; CamCo Commercial, Inc., a Nevada corporation; CamCo Galaxy and Technology Investments, LLC, an Arizona limited liability company; Linking Sports and Communities, an Arizona non-profit corporation; Rise Above Development BA, LLC, an Arizona corporation; Rise Above Development Gym, LLC, an Arizona limited liability company; Rise Above Development INF, LLC, an Arizona limited liability company; White Corporations I-X; Black Partnerships I-X; and Gray Limited Liability Companies I-X, (collectively “Defendants”), seeking unpaid minimum wages and an additional, equal amount in liquidated damages under the Fair Labor Standards Act (“FLSA”) (doc. 1, ¶¶ 82-88), unpaid minimum wages and an additional, equal amount in liquidated damages under the Arizona Minimum Wage Act (“AMWA”) (id., at ¶¶ 89-94), treble unpaid wages under the Arizona Wage Act (“AWA”) (id., at ¶¶ 95-105), damages for breach of contract (id., at ¶¶ 106-123), and compensatory and punitive damages for fraud in the inducement (id. ¶¶ 124-32). Plaintiff also seeks pre-and post-judgment interest and attorneys' fees and costs. (Id., ¶¶ 88, 94, 112, 123.)
For ease of reference, the Court will refer to the corporate entity Defendants CamCo Commercial, Inc.; CamCo Galaxy and Technology Investments, LLC; Linking Sports and Communities; Rise Above Development BA, LLC; Rise Above Development Gym, LLC; and Rise Above Development INF, LLC as the “Entity Defendants.” Due to lack of service, the Court will recommend dismissal without prejudice of the unnamed corporate defendants White Corporations I-X, Black Partnerships I-X, and Gray Limited Liability Companies I-X. (Doc. 1, ¶ 37.)
Plaintiff alleges he accepted an offer of employment from Rise Above Enterprises, LLC (“Rise Above”), owned and operated by Defendant Cameron Colvin (“Defendant Colvin”) (id., at ¶ 10), and began working on May 23, 2022 (id., at ¶ 10, 40). Plaintiff alleges that while there is no LLC registered with the Arizona Corporation Commission under the name “Rise Above,” “[u]pon information and belief, Defendants, and each of them, are the parent corporations, partners, joint ventures or holding companies for other entities that are or may be transacting business in the State of Arizona under the name ‘Rise Above Enterprises, LLC' and/or ‘Rise Above Enterprises' for whom Plaintiff worked.” (Id., ¶¶ 11, 14.) Plaintiff's job entailed “front-end website design for http://camcoholdings.com/, https://www.linkingsport.org/, http://riseaboveep.com/, and http://thecamcococktailhr.com/.” (Id., at ¶ 21.) Plaintiff alleges he “created Instagram content for Defendant Colvin (@drcamcolvin), Rise Above Creative Solutions (@riseabovecs), Camco Green House (@camcogreenhouse), Neverstop (@theneverstoplifestyle), and Amazingly Green (@amazingly.green) at the direction of Defendants[,]” and “Facebook content for CamCo Commercial (https://www.facebook.com/CamCoCommercialinc) and Rise Above Enterprise (https://www.facebook.com/RiseAboveEnterprise) at the direction of Defendants.” (Id.) Plaintiff states, “No efforts were made by Defendants to differentiate between the corporate entities for which Plaintiff performed work.” (Id .)
Plaintiff alleges that the Entity Defendants “regularly engage in the same or similar activities, share a common business purpose, and operate under a unified operation or common control by Defendant Colvin so as to constitute an ‘enterprise'” within the meaning of the FLSA and AWA. (Id., at ¶ 15.)
Plaintiff alleges that he commenced work for Rise Above on May 23, 2022, and that he received his first paycheck on June 14, 2022, in the amount of $1,182.29. (Id., at ¶¶ 40-41.) Plaintiff alleges this “paycheck failed to include wages owed to Plaintiff based upon the number of hours Plaintiff had worked that pay period.” (Id., at ¶ 42.) Plaintiff alleges Defendant Colvin and other Rise Above employees fraudulently induced or pressured him and other employees to continue working despite continued nonpayment of wages. (Id., at ¶¶ 43-81.) Plaintiff alleges he stopped working for Rise Above on November 6, 2022. (Id., at ¶ 76.)
Plaintiff alleges that on January 17, 2023, his counsel sent a demand letter to Defendant Colvin's attorney, who counter-offered $25,000 to settle Plaintiff's claims. (Id., at ¶¶ 69-70.) Plaintiff's counsel accepted the offer on Plaintiff's behalf, Defendant Colvin's attorney responded with a draft settlement agreement memorializing the agreed-upon terms, and Plaintiff executed and returned the agreement to Defendant Colvin's counsel on February 7, 2023. (Id., at ¶¶ 70-72.) Plaintiff alleges that, as of the date of filing, Defendants failed to deliver the settlement funds and were in breach of the agreement. (Id., at ¶ 73.)
II. Procedural History.
On April 13, 2023, Plaintiff filed the Complaint initiating this action. (Doc. 1.) On April 18, 2023, Plaintiff served Defendant Linking Sports and Communities by leaving a copy with an individual authorized to accept service. (Doc. 9.) On April 18, 2023, Plaintiff also served Defendants Rise Above Development BA, LLC, Rise Above Development Gym, LLC, and Rise Above Development INF, LLC, through statutory agents. (Doc. 10.) On April 19, 2023, Plaintiff served Camco Commercial, Inc. through a statutory agent. (Doc. 11.) Defendant Colvin, on behalf of himself, “Jane Doe Colvin,” and CamCo Galaxy and Technology Investments, LLC, purported to waive service on May 14, 2023. (Doc. 12.)
As discussed further in Section III(B)(1), infra, Defendant Colvin cannot waive service on his wife's behalf. See Fed.R.Civ.P. 4(d)(1)(A) (notice and request for waiver must be in writing and addressed to the individual defendant). Therefore, this Court finds it cannot exercise personal jurisdiction over the unnamed spouse, “Jane Doe Colvin.” Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one is not bound by a judgment in personam resulting from litigation in which he is not designated as a party or to which he has not been made a party by service of process.”). Importantly, however, a request for waiver of service may be made upon “an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process[.]” Fed.R.Civ.P. 4(d)(1)(A)(ii). Plaintiff has alleged Defendant Colvin is a member of the Camco Galaxy and Technology Investments LLC and exercises common control over the Entity Defendants' joint enterprise. (Doc. 1, ¶¶ 15, 33.) Therefore, this Court finds that Defendant Colvin's waiver of service on behalf of Camco Galaxy and Technology Investments, LLC was valid. (Doc. 12.)
The deadline for Defendants Linking Sports and Communities, Rise Above Development BA, LLC, Rise Above Development Gym, LLC, and Rise Above Development INF, LLC to respond to the complaint was May 23, 2023. (Doc. 18 at 2.) Defendant CamCo Commercial, Inc.'s deadline to respond to the Complaint was May 24, 2023. (Id.) The deadline for Defendant Colvin and CamCo Galaxy and Technology Investments, LLC to respond to the Complaint was July 12, 2023. (Id.) None of these Defendants responded to the Complaint.
On June 6, 2023, Plaintiff applied for default as to all Defendants and the Clerk of Court entered default. (Doc. 13, 14.) The Court later vacated the Clerk's entry of default, in part, because Defendants Cameron Colvin, Jane Doe Colvin, and Camco Galaxy and Technology Investments, LLC, had waived service and were entitled until July 12, 2023 to respond to the Complaint. (Doc. 15.) Plaintiff then reapplied for default for the remaining defendants after that deadline passed, and the Clerk entered default. (Doc. 16, 17.) Plaintiff then filed this Motion for Default Judgment as to all Defendants. (Doc. 18.)
III. Motion for Default Judgment.
A. Legal Standard.
Under Rule 55(a) of the Federal Rules of Civil Procedure, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). Once a party's default has been entered, the district court has discretion to grant default judgment against that party. See Fed.R.Civ.P. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
In assessing a motion for default judgment, the district court first “has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.” Tuli v. Republic of Iraq, 172 F.3d 707, 712 (9th Cir. 1999) (“To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter judgment in the first place.”). Once jurisdiction is satisfied, the court must determine whether default judgment is proper under the Eitel factors. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). A court should consider:
(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.Id., at 1471-72. In applying the Eitel factors, “the factual allegations of the complaint, except those relating to damages, will be taken as true.” Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977).
B. Discussion.
1. Jurisdiction.
“When entry of default is sought against a party who has failed to plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.” Tuli, 172 F.3d at 712. Plaintiff brings claims under the FLSA, AMWA, AWA, and other state law claims for breach of contract and fraud in the inducement. (Doc. 1, at 12-18.) The Court has subject matter jurisdiction over claims arising out of federal law, including the FLSA, pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 201, et seq. The Court also has supplemental jurisdiction over Plaintiff's state law claims because those claims are “so related” to the FLSA claim as to “form part of the same case or controversy[.]” 28 U.S.C. § 1367(a).
Venue and personal jurisdiction requirements are also satisfied, but only for the named Defendants. The named Defendants were properly served (see Section II, supra), and Plaintiff alleges “the acts and omissions giving rise to Plaintiff's claims occurred in the State of Arizona and[ ]Defendants regularly conduct business in, and have engaged in unlawful conduct alleged herein, . . . .” (Doc. 1, ¶ 5.) Plaintiff alleged that Defendant Colvin resides in the State of Arizona, and that Defendants CamCo Galaxy and Technology Investments, LLC, Linking Sports and Communities, Rise Above Development BA, LLC, Rise Above Development Gym, LLC, and Rise Above Development INF, LLC, are LLCs, non-profits, and corporate entities organized under the laws of the State of Arizona. (Id., at 1-2.) Plaintiff alleged that Defendants “are jointly and severally liable for the conduct alleged herein as entitled Defendants share common ownership, common management, and interrelation of operations.” (Id., at ¶ 13.) Plaintiff further alleged that “Defendants, including individual Defendant Cameron Colvin, and any related business entity which they own, control, or with whom they partner or operate together with their respective units, divisions and departments, regularly engage in the same or similar activities, share a common business purpose, and operate under a unified operation or common control by Defendant Colvin so as to constitute an ‘enterprise'” within the meaning of the FLSA. (Id., at ¶ 15); Geddes, 559 F.2d at 560 (in a motion for default judgment, the factual allegations in the complaint, except those pertaining to damages, are taken as true). Accordingly, the Court has jurisdiction over all named Defendants, i.e., Defendant Colvin and the Entity Defendants.
“A civil action may be brought in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated[.]” 28 U.S.C. § 1391(b)(2).
Plaintiff alleges the Entity Defendants are under common ownership and management and were engaged in a common enterprise in the state. (Doc. 1, ¶¶ 13, 15, 18-19, 32-35.) The Court finds these allegations would be sufficient to establish minimum contacts and, in turn, personal jurisdiction, over Camco Commercial, Inc., the Nevada corporation. See Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1134 (9th Cir. 2003) ([w]hile the mere existence of a parent-subsidiary relationship is insufficient to exercise jurisdiction over the parent, “a subsidiary's contacts may be imputed to the parent where the subsidiary is the parent's alter ego, or where the subsidiary acts as the general agent of the parent.”). ft must be shown that one entity is merely an instrumentality of the other. Id., at 1135. The Court notes that is the crux of Plaintiff's allegations pertaining to the Entity Defendants' involvement. (E.g., Doc. 1, ¶¶ 13-16, 18-19.)
This Court finds it lacks jurisdiction over unnamed Doe Defendants. Because they have not been served, the Court has no jurisdiction. S.E.C. v. Ross, 504 F.3d 1130, 113839 (9th Cir. 2007). Although Defendant Colvin purported to waive service on his wife's behalf (doc. 12), he cannot do so. See Weimer v. Maricopa Cnty. Cmty. Coll. Dist., 184 F.R.D. 309 n.1 (D. Ariz. 1998) (noting that a marital community is not a legal entity that can sue or be sued); see also Zenith Radio Corp., 395 U.S. at 110 (noting that one cannot be bound by judgment to which she is not designated as a party or has not been made a party through proper service).
2. Eitel Factors.
Having determined that this Court has both subject matter and personal jurisdiction in this action over the named Defendants, the Court will examine whether entry of default judgment is proper under the Eitel factors.
a. The First, Fifth, Sixth, and Seventh Eitel Factors.
When Defendants have not responded or participated in any litigation, the “first, fifth, sixth, and seventh [Eitel] factors are easily addressed.” Zekelman Industries Inc. v. Marker, No. CV-19-02109-PHX-DWL, 2020 WL 1495210, at *3 (D. Ariz. March 27, 2020).
The first factor weighs in favor of default judgment because denying Plaintiff's Motion will leave him “without other recourse for recovery,” PepsiCo, Inc. v. California Security Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002), and prejudice would exist if Plaintiff's Motion was denied because he would lose the right to a “judicial resolution” of his claims. Elektra Entertainment Group, Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005). The fifth factor weighs in favor of default judgment because the well-pleaded factual allegations in the Complaint are taken as true, and there is no “genuine dispute of material facts” that would preclude granting the Motion. PepsiCo, 238 F.Supp.2d at 1177. The sixth factor considers whether the default was due to excusable neglect. Here, Defendants' failure to participate after being served or waiving service does not indicate that default was due to excusable neglect. See Twentieth Century Fox Film Corp. v. Streeter, 438 F.Supp.2d 1065, 1071-1072 (D. Ariz. 2006). The seventh factor-favoring decisions on the merits-generally weighs against default judgment; however, “the mere existence of Rule 55(b) indicates that ‘this preference, standing alone, is not dispositive,'” PepsiCo, 238 F.Supp.2d at 1177, and is insufficient to preclude the entry of default judgment in this case. Warner Bros. Entertainment Inc. v. Caridi, 346 F.Supp.2d 1068, 1073 (C.D. Cal. 2004) (explaining that the seventh Eitel factor “standing alone, cannot suffice to prevent entry of default judgment for otherwise default judgment could never be entered” and courts have concluded that “this factor does not weigh very heavily”). Here, a decision on the merits is impossible, given that Defendants failed to respond. The first, fifth, sixth, and seventh factors weigh in favor of default judgment.
b. The Second and Third Eitel Factors.
The second and third Eitel factors-the merits of the claim and the sufficiency of the complaint-are “often analyzed together and require courts to consider whether a plaintiff has state[d] 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) (quotations omitted). Here, the Court must first examine Plaintiff's employee status under the FLSA, AMWA, and AWA.
1. Plaintiff's FLSA, AMWA, and AWA Claims.
The FLSA defines an “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). It defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Id. § 203(d). The Court finds that Plaintiff was an employee of Defendants. (Doc. 1, ¶¶ 13, 20-25.) Defendant Cameron Colvin had the authority to hire and fire employees, supervised and controlled work schedules and the conditions of employment, determined the rate and method of payment, and maintained employment records in connection with Plaintiff's employment with Defendants. (Id., at ¶ 38.) These allegations, taken as true, support that Defendants were Plaintiff's employer.
Like the FLSA, the AMWA defines an “employee” as “any person who is or was employed by an employer.” A.R.S. § 23-362(A). It defines an “employer” as “any corporation proprietorship, partnership, joint venture, limited liability company, trust, association, political subdivision of the state, individual or other entity acting directly or indirectly in the interest of an employer in relation to an employee.” A.R.S. § 23-362(B). Since the definition of employee is the same under both the FLSA and AMWA, the Court's analysis as to Plaintiff's employee status under the FLSA applies to the AMWA. Defendants were employers and Plaintiff was an employee of Defendants under the AMWA.
Lastly, like the FLSA and AMWA, the AWA defines an “employee” as “any person who performs services for an employer under a contract of employment either made in this state or to be performed wholly or partly within this state.” A.R.S. § 23350(2). The AWA defines “employer” as “any individual, partnership, association, joint stock company, trust or corporation, the administrator or executor of the estate of a deceased individual or the receiver, trustee or successor of any of such persons employing any person.” A.R.S. § 23-350(3). Thus, the Court's reasoning as to Plaintiff's employee status under the FLSA also applies under the AWA. Defendants are employers and Plaintiff was an employee of Defendants under the AWA.
2. Plaintiff's State Law Claims for Breach and Fraud.
Regarding Plaintiff's contract claims, “[u]nder Arizona law, a claim for breach of contract has three elements: (1) the existence of a contract between the plaintiff and defendant; (2) breach of the contract by defendant; and (3) resulting damage to the plaintiff.” Gordon Grado M.D., Inc. v. Phoenix Cancer & Blood Disorder Treatment Inst. PLLC, 603 F.Supp.3d 799, 818 (D. Ariz. 2022) (citations omitted). Plaintiff alleged counsel for the parties engaged in settlement discussions regarding the unpaid-wage claims, that defense counsel memorialized the agreed-upon terms in a draft settlement agreement and then conveyed it to Plaintiff, and that Plaintiff signed and returned the executed agreement. (Doc. 1, ¶¶ 115-18.) Plaintiff alleges that at the filing of the Complaint, Defendants had not paid the agreed-upon sum and were in breach. (Id., at ¶¶ 120-21.) The allegations in the complaint are sufficient to state a breach of contract claim.
As for fraud in the inducement, there are nine elements:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that it be acted upon by the recipient in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the listener's reliance on its truth; (8) the right to rely on it; and (9) his consequent and proximate injury.Meritage Homes Corp. v. Hancock, 522 F.Supp.2d 1203, 1218 (D. Ariz. 2007) (quoting Wells Fargo Credit Corp. v. Smith, 803 P.2d 900, 905 (Ariz. 1990)).
Plaintiff sufficiently alleged that Defendant Colvin knowingly made a material, false representation that Plaintiff would eventually be paid with the intent of inducing Plaintiff to continue working, and that Plaintiff justifiably relied upon the misrepresentation to his detriment and suffered injury as a result. (Doc. 1, ¶¶ 125-31.)
3. Plaintiff's Complaint Sufficiently Pleads the Claims.
As noted above, in his Complaint, Plaintiff argues that he is entitled to unpaid wages, liquidated damages in the same amount, treble unpaid wage damages, punitive damages, and pre- and post-judgment interest under the FLSA, AMWA, and AWA, and under state-law claims for breach of contract and fraud in the inducement. (Doc. 1, at 1718.) Because the Court takes these allegations as true, Geddes, 559F.2d at 560, and additionally has found that Defendants are employers and Plaintiff was an employee of Defendants, Plaintiff “has stated a claim on which [he] may recover.” Vietnam Reform Party, 416 F.Supp.3d at 962. Thus, the second and third Eitel factors support an entry of default judgment on all claims.
c. The Fourth Eitel Factor.
The fourth Eitel factor considers “the amount of money at stake in relation to the seriousness of Defendant's conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1177. “If the sum of money at stake is completely disproportionate or inappropriate, default judgment is disfavored.” Twentieth Century Fox Film Corp., 438 F.Supp.2d at 1071. Here, Plaintiff seeks unpaid wages, liquidated damages, punitive damages, and interest. Plaintiff is requesting $15,366.30 in statutory damages pursuant to A.R.S. § 23-355(A), $13,225.00 in attorneys' fees, and $1,139.90 in costs. (Doc. 18 at 6-8.) Plaintiff is requesting that all Defendants be jointly and severally liable for the entire amount. (Id. at 8.)
In the conclusion of his Motion, Plaintiff represents the sum of damages is $14,364.90. (Doc. 18 at 9.) The Court construes this number as a scrivener's error because the amount of statutory damages alone, which Plaintiff cites elsewhere, is $15,366.30. (Id. at 7.)
Taking Plaintiff's allegations as true, the Court finds that the amount requested is reasonable and not disproportionate or inappropriate. Thus, the fourth Eitel factor weighs in favor of default judgment. Overall, the Eitel factors weigh in favor of entering default judgment against Defendants.
3. Damages.
Having found that entry of default judgment is proper under the Eitel factors, the Court will turn to damages. Unlike the allegations in the Complaint, the Court does not take allegations relating to damages as true. Geddes, 559 F.2d at 560; see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Plaintiffs have the burden of “proving up” damages, and “if the facts necessary to determine damages are not contained in the complaint, or are legally insufficient, they will not be established by default.” Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). Courts may rely on declarations submitted by the plaintiff in determining appropriate damages. Tolano v. El Rio Bakery, No. CV-18-00125-TUC-RM, 2019 WL 6464748, at *6 (D. Ariz. Dec. 2, 2019) (citing Philip Morris USA, Inc., 219 F.R.D. at 498).
This amount engulfs Plaintiff's minimum wage damages and liquidated damages under the FLSA and AMWA.
According to his Motion and accompanying Declaration, Plaintiff's total damages are $15,366.30, equal to treble the amount of $5,122.10 in unpaid wages. (Doc. 18, Ex. A); A.R.S. § 23-355.8 Plaintiff further requests pre- and post-judgment interest and attorneys' fees and costs. (Doc. 1 at 17, Doc. 18 at 8.)
The Ninth Circuit has held employers individually liable under the FLSA. See, e.g., Walsh v. Wellfleet Commc'ns, 2021 WL 4796537, at *2 (9th Cir. Oct. 14, 2021). Likewise, the District of Arizona has held that employers may be individually liable under both the FLSA and the AMWA. See, e.g., Rosen v. Fasttrak Foods LLC, No. CV-19-05292-PHX-DWL, 2021 WL 2981590, at *5 (D. Ariz. July 15, 2021). In contrast, the AWA states individual liability is not authorized “against the owners, officers, and directors of a corporate employer in a case where the claim is for the employer's wholesale failure to pay wages.” Id. Thus, Defendant Colvin is not liable for treble damages under the AWA, but is liable for the portion of the damage award comprised of compensatory damages for unpaid wages and liquidated damages under the FLSA and AMWA.
Regarding interest, the Court acknowledges “it is ordinarily an abuse of discretion not to include pre-judgment interest in back-pay awards under the FLSA.” See Ford v. Alfaro, 785 F.2d 835, 842 (9th Cir. 1986). Importantly, however, pre-judgment interest under the FLSA is inappropriate when the Court also awards liquidated damages. Brooklyn Sav. Bank v. O 'Nell, 324 U.S. 697, 715 (1945); see Ford, 785 F.2d at 842 (“It is well established in other circuits that, in the absence of a liquidated damage award, prejudgment interest is necessary to fully compensate employees for the losses they have suffered.”) (citations omitted, emphasis added). Such is the case here. The Court does find, however, that post-judgment interest is still authorized under 28 U.S.C § 1961(a).
See also Acosta v. Pindernation Holdings LLC, No. CV-23-0086-PHX-JFM, 2023 WL 3951222, at *5 n. 4 (D. Ariz. Mar. 1, 2023), report and recommendation adopted, No. CV-23-00086-PHX-JFM, 2023 WL 3951211 (D. Ariz. Mar. 23, 2023).
The Court finds Plaintiff's Declaration supports his requested relief and accurately expresses his statutory entitlement to damages. The Court recommends Plaintiff be awarded the $15,366.30 in total damages he requests. Because Plaintiff's treble damages under the AWA engulf his FLSA and AMWA damages, and Defendant Colvin is not personally liable under the AWA as an owner, officer, or director of the corporate Entity Defendants, the Court finds Defendant Colvin is only liable for the minimum unpaid wage and liquidated damage claims under the FLSA and AMWA. The Court further recommends dismissing all Doe Defendants due to lack of service. See Zenith Radio Corp., 395 U.S. at 110.
Additionally, while Plaintiff has provided information pertaining to counsels' hourly rate and hours spent on the case, this Court recommends directing Plaintiff to file a separate motion for fees including a “task-based itemized statement of time expended” consistent with LRCiv. 54.2(d)(3).
III. Conclusion and Recommendation.
Having reviewed Plaintiff's Motion and the underlying documents in the record, the Court finds that the Eitel factors weigh in favor of granting default judgment in favor of Plaintiff for the requested amount.
Accordingly, IT IS RECOMMENDED that Plaintiff's Motion for Entry of Default Judgment (Doc. 18) be GRANTED against the named Entity Defendants and Defendant Colvin;
IT IS FURTHER RECOMMENDED that Plaintiff be awarded $15,366.30 plus post-judgment interest at the applicable statutory rate against all named Entity Defendants, jointly and severally, except Defendant Colvin and the unnamed Doe Defendants, with post-judgment interest calculated pursuant to 28 U.S.C. § 1961(a);
IT IS FURTHER RECOMMENDED that Defendant Colvin be held liable for $10,244.20 in liquidated damages under the FLSA and AMWA equivalent to double the amount of the $5,122.10 in unpaid wages, with post-judgment interest calculated at the applicable statutory rate pursuant to 28 U.S.C. § 1961(a);
IT IS FURTHER RECOMMENDED dismissing all unnamed Doe Defendants without prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff have no later than 14 days after entry of Judgment to file an application for attorneys' fees and costs.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.