Opinion
CV-23-01881-PHX-ESW
02-29-2024
Muhammad Bhular, Plaintiff, v. Asteri Group Home LLC, et al., Defendants.
REPORT AND RECOMMENDATION
Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
In September 2023, Plaintiff initiated this action against Defendants Sammie Jo Black, John Doe Black, Asteri Group Home LLC, Larry Rodriguez, and Jane Doe Rodriguez for unpaid minimum wages, liquidated damages, attorneys' fees, costs, and interest under the Fair Labor Standards Act, 29 U.S.C. § 201, the Arizona Minimum Wage Act, and the Arizona Wage Act. (Doc. 1). Plaintiff consented to the exercise of Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Doc. 8).
On December 11, 2023, the Court granted Plaintiff's Motion for Alternative Service and permitted Plaintiff to serve Defendants Asteri Group Home LLC, Larry Rodriguez, and Jane Doe Rodriguez via U.S. Mail and Certified Mail at 23172 W. Ashleigh Marie Dr., Buckeye, Arizona 85326 and 25847 W. Williams St., Buckeye, Arizona 85326. (Doc. 14 at 1).
Plaintiff served Defendant Sammie Jo Black on September 14, 2023.(Doc. 10). Plaintiff served Defendants Asteri Group Home LLC, Larry Rodriguez, and Jane Doe Rodriguez in accordance with the Court's Order (Doc. 14) on December 12, 2023. (Docs. 15-17). Defendants have not answered or otherwise responded to the Complaint.
The docket does not reflect service on Defendant John Doe Black. It is recommended that the Court dismiss John Doe Black.
Upon Plaintiff's Applications (Docs. 11, 18), the Clerk of Court entered default against the served Defendants. (Docs. 12, 19). On February 6, 2024, Plaintiff filed the pending Motion for Entry of Default Judgment (Doc. 20). Because Defendants have not appeared or consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), the undersigned submits this Report and Recommendation pursuant to General Order 21-25. For the reasons discussed below, the undersigned recommends that default judgment be entered in favor of Plaintiff and against Defendants Sammie Jo Black, Asteri Group Home LLC, Larry Rodriguez, and Jane Doe Rodriguez.
I. DISCUSSION
A. Jurisdiction
“When entry of judgment 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.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
Here, Plaintiff's claim arises out of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201. The Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 as this is a civil action arising under the Constitution, laws, or treaties of the United States. The Court has supplemental jurisdiction over Plaintiff's related statelaw claims under 28 U.S.C. § 1367(a). The Court also has personal jurisdiction over the parties.
B. Plaintiff's Motion for Default Judgment
“After entry of a default, a court may grant a default judgment on the merits of the case.” See Twentieth Century Fox Film Corp. v. Streeter, 438 F.Supp.2d 1065, 1070 (D. Ariz. 2006). In determining whether to grant default judgment, the Court considers the following factors: (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 decision on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). “The Court analyzes these factors taking as true the allegations in the complaint, except those relating to damages.” Fed. Trade Comm'n v. Money Now Funding LLC, 2015 WL 11120847, at *1 (D. Ariz. July 1, 2015).
1. The First, Fifth, Sixth, and Seventh Eitel Factors
In cases where a Defendant has “not participated in the litigation at all, the first, fifth, sixth, and seventh factors are easily addressed.” Zekelman Indus. Inc. v. Marker, No. CV-19-02109-PHX-DWL, 2020 WL 1495210, at *3 (D. Ariz. Mar. 27, 2020). As a denial of Plaintiff's Motion (Doc. 20) would leave him “without other recourse for recovery,” the undersigned finds that the first Eitel factor weighs in favor of default judgment. PepsiCo, Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Because the well-pleaded facts in the Complaint are taken as true, there is no “genuine dispute of material facts” that would preclude granting the Motion. The undersigned thus finds that the fifth Eitel factor weighs in favor of default judgment. In addition, because Defendants Sammie Jo Black, Asteri Group Home LLC, Larry Rodriguez, and Jane Doe Rodriguez were properly served, it is unlikely that their failure to answer is due to excusable neglect. Therefore, the sixth factor weighs in favor of default judgment. Finally, although the seventh factor generally weighs against default judgment, the existence of Rule 55(b) “indicates that this preference, standing alone, is not dispositive.” PepsiCo, 238 F.Supp.2d at 1177. Because Defendants have not appeared in this action, deciding this case on the merits is “impractical, if not impossible.” Id. The seventh Eitel factor alone is not sufficient to preclude the entry of default judgment in this case.
2. The Second and Third Eitel Factors
The second and third Eitel factors, which concern the merits of the claim and the sufficiency of the complaint, are often “analyzed together and require courts to consider whether a plaintiff has stated a claim on which it may recover.” Vietnam Reform Party v. Viet Tan- Vietnam Reform Party, 416 F.Supp.3d 948, 962 (N.D. Cal. 2019).
The FLSA's minimum wage provision entitles employees to a wage “not less than $7.25 an hour.” 29 U.S.C. § 206(a). To state a plausible minimum wage claim under the FLSA, a plaintiff must allege that his or her weekly wages fall below the statutory minimum. Heck v. Heavenly Couture, Inc., No. 3:17-CV-0168-CAB-NLS, 2017 WL 4476999, at *4 (S.D. Cal. Oct. 6, 2017); see also Alvarez v. IBP, Inc., 339 F.3d 894, 91415 (9th Cir. 2003) (recounting precedent in which the Ninth Circuit has approved approximated awards where “plaintiffs can establish, to an imperfect degree of certainty,” that they have performed work and have not been paid in accordance with the FLSA).
The Court may exercise supplemental jurisdiction over Plaintiff's state-law based claims. To state a claim under the Arizona Minimum Wage Act (“AMWA”), the defendant must be an “employer” under the statute, the plaintiff must be a qualified employee of the defendant, and “the plaintiff must allege that [he or] she was not paid the applicable minimum wage for hours worked.” Coe v. Hirsch, No. CV-21-00478-PHX, 2021 WL 5634798, at *2 (D. Ariz. Dec. 1, 2021) (Ariz. Rev. Stat. § 23-363).
The Arizona Wage Act (“AWA”) provides that if an employer fails to pay wages due to any employee, the employee may recover damages in an amount that is treble the amount of unpaid wages. See Ariz. Rev. Stat. § 23-355. Under Ariz. Rev. Stat. § 23-353, a discharged employee must be paid wages due to him “within seven working days or the end of the next regular pay period, whichever is sooner.”
Here, the Complaint states that Plaintiff worked for Defendants from August 13, 2023 through approximately August 23, 2023 and that Defendants agreed to pay Plaintiff $16.25 per hour. (Doc. 1 at ¶¶ 30, 33). Plaintiff asserts that he worked approximately 70-80 hours during that two-week period. (Id. at ¶ 34). The Complaint alleges that Defendants were “employers” as defined by the FLSA and Ariz. Rev. Stat. § 23-362 and that the enterprise engaged in commerce that had annual gross sales of at least $500,000. (Id. at ¶ 23). Plaintiff asserts that Defendants failed to pay Plaintiff any wages for the hours worked during his employment. (Id. at ¶ 35).
After reviewing the Complaint and taking Plaintiff's factual allegations as true, the Court finds that Plaintiff has sufficiently stated a claim for violations of the FLSA, the AMWA, and the AWA.
3. The Fourth Eitel Factor
Under the fourth Eitel factor, the Court considers the amount of money at stake in relation to the seriousness of Defendant's conduct. See PepsiCo, Inc., 238 F.Supp.2d at 1176. If the sum of money at stake is completely disproportionate or inappropriate, default judgment is disfavored. See Twentieth Century Fox Film Corp. v. Streeter, 438 F.Supp.2d 1065, 1071 (D. Ariz. 2006).
Here, Plaintiff seeks a total of $3,688.92, exclusive of attorneys' fees and costs. (Doc. 20 at 12). The undersigned does not find this amount to be so “substantial or unreasonable” as to discourage default judgment. The undersigned finds that the fourth Eitel factor weighs in favor of default judgment against Defendant.
After considering Plaintiff's Motion (Doc. 20) and the Eitel factors, the undersigned finds that the entry of default judgment against Defendant is appropriate in this case.
4. Damages
Unlike the Complaint's other factual allegations, those pertaining to damages are not taken as true upon default. Geddes, 559 F.2d at 560. A plaintiff seeking default judgment “is required to prove all damages sought in the complaint.” Tolano v. El Rio Bakery, No. CV-18-00125-TUC-RM, 2019 WL 6464748, at *6 (D. Ariz. Dec. 2, 2019) (internal quotations omitted) (quoting Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003)). A plaintiff must “provide evidence of its damages, and the damages sought must not be different in kind or amount from those set forth in the complaint.” Fisher Printing Inc. v. CRG LTD II LLC, No. CV-16-03692-PHX-DJH, 2018 WL 603299, at *3 (D. Ariz. Jan. 22, 2018) (citing Amini Innovation Corp. v. KTY Int'l Mktg., 768 F.Supp.2d 1049, 1054 (C.D. Cal. 2011)). Courts may rely on declarations submitted by the plaintiff in determining appropriate damages. Tolano, 2019 WL 6464748, at *6 (citing Philip Morris USA, Inc., 219 F.R.D. at 498).
Here, Plaintiff has submitted a sworn declaration stating that he worked approximately 70 hours during the two-week period he was employed by Defendants. (Doc. 20-1 at ¶ 8). Plaintiff states that his rate of pay was $16.25 per hour. (Id. at ¶ 6). Based on these figures, Plaintiff asserts that he is owed $1,137.50 in unpaid wages, exclusive of overtime wages. (Id. at ¶¶ 10, 13). Plaintiff states that he worked approximately 17 hours in overtime during his first week of employment by Defendants. (Id. at ¶ 11). Plaintiff calculates that he is owed $138.21 in overtime wages ($8.13 x 17). (Id.). Plaintiff correctly asserts that the FLSA provides double damages when an employer violates 29 U.S.C. § 206. See 29 U.S.C. § 216(b). Plaintiff accurately calculates that he is owed damages for unpaid overtime wages in the amount of $276.42 ($138.21 x 2). (Id. at ¶ 20).
Plaintiff's Arizona minimum wage damages equals $969.50 ($13.85 x 70).(Id. at ¶ 8). This amount trebled equals $2,908.50. See Ariz. Rev. Stat. § 23-364(G). Plaintiff correctly calculates that his trebled damages for unpaid regular wages equals $3,412.50 ($1,137.50 x 3). (Id. at ¶ 18). Because this amount engulfs Plaintiff's Arizona minimum wage damages, the undersigned concurs with Plaintiff that $3,412.50 is the appropriate total unpaid regular wages award.
Plaintiff's Declaration and Motion for Default include a typographical error indicating that the Plaintiff's Arizona minimum wage damages equal $969.85 rather than $969.50. This typographical error was carried over to Plaintiff's calculation of treble damages. Plaintiff's Declaration and Motion for Default request trebled Arizona minimum wages in the amount of $2,909.55 ($969.85 x 3). The correct trebled damages amount is $2,908.50 ($969.50 x 3).
Plaintiff's requested relief is supported by Plaintiff's Declaration. The undersigned finds it appropriate to award Plaintiff total damages in the amount of $3,688.92 ($3,412.50 in trebled unpaid regular wages + $276.42 in doubled unpaid overtime wages).
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court GRANT Plaintiff's Motion for Default Judgment (Doc. 20).
IT IS FURTHER RECOMMENDED that the Court enter judgment in favor of Plaintiff and against Defendants Asteri Group Home LLC, Sammie Jo Black, and Larry Rodriguez and Jane Doe Rodriguez as follows:
A. For trebled award of Plaintiff's unpaid wages of $1,137.50 in the amount of $3,688.92 for which Defendant Asteri Group Home LLC shall be liable;
B. Of that $3,688.92, for Defendants Asteri Group Home LLC, Sammie Jo Black, and Larry Rodriguez and Jane Doe Rodriguez to be jointly and severally liable for the amount of $2,908.50 in unpaid, trebled minimum wages;
C. For unpaid overtime in the amount of $138.21 for which Defendants Asteri Group Home LLC, Sammie Jo Black, and Larry Rodriguez and Jane Doe Rodriguez shall be jointly and severally liable;
D. For liquidated damages on his unpaid overtime in the amount of an additional $138.21 for which Defendants Asteri Group Home LLC, Sammie Jo Black, and Larry Rodriguez and Jane Doe Rodriguez shall be jointly and severally liable;
E. For Plaintiff's attorneys' fees and costs, a motion for attorneys' fees and costs shall be filed pursuant to LRCiv 54.2;
F. For post judgment interest on the above amounts at the federal rate from the date of Judgment until paid;
G. For Plaintiff's attorneys' fees and costs incurred in enforcing this Judgment.
IT IS FURTHER RECOMMENDED that the Court dismiss John Doe Black from this action without prejudice for failure to serve.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) 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 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, 72. Thereafter, the parties have fourteen days within which to file a response to the 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. Failure to file timely objections to any factual determinations 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 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).