Opinion
CV-23-00234-TUC-EJM
02-12-2024
Derek Quen Wong, an individual, Plaintiff, v. White Rock Phlebotomy, LLC, an Arizona limited liability company; and Caroline Anne Lebiecki, an individual, Defendants.
REPORT AND RECOMMENDATION
Eric J. Markcovich, United States Magistrate Judge
Currently pending before the Court is Plaintiff Derek Quen Wong's Motion for Entry of Default Judgment Against Defendants (Doc. 12). When a United States Magistrate Judge has the incomplete consent of the Parties, General Order 21-25 directs this Court to prepare a Report and Recommendation to the appropriate designee in either Tucson or Phoenix/Prescott. Accordingly, the Court directs this Report and Recommendation to the Honorable Raner C. Collins. The Magistrate Judge recommends granting Plaintiff's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was an “employee” of Defendants as a mobile phlebotomist. Compl. (Doc. 1) at ¶¶ 18-22, 28. “Under the terms of the October 2022 ‘W2 Employment Agreement' between White Rock and Wong (hereinafter the ‘October W2 Employment Agreement'), White Rock hired Wong as a full time W2 employee with an annual salary of $75,000 plus 15% commission and reimbursement for covered expenses.” Id. at ¶ 29. “Under the terms of the October W2 Employment Agreement, White Rock promised to pay Wong on the 10th and 25th of each month.” Id. at ¶ 31. On October 24, 2022, Plaintiff began working for White Rock. Id. at ¶ 32.
“White Rock paid Wong for the first three pay periods of his employment; namely, Wong received pay on November 10, 2022 (for the October 16, 2022 to October 31, 2022 pay period), November 25, 2022 (for the November 1, 2022 to November 15, 2022 pay period), and December 10, 2022 (for the November 16, 2022 to November 30, 2022 pay period).” Id. at ¶ 33. “[O]n the fourth applicable pay day, December 25, 2022 (for the December 1, 2022 to December 15, 2022 pay period), Defendants failed to pay Wong.” Compl. (Doc. 1) at ¶ 34. “Defendants also failed or refused to pay Wong on the fifth applicable pay day, January 10, 2023 (for the December 16, 2022 to December 31, 2022 pay period).” Id. at ¶ 35. “On January 13, 2023, three days after failing or refusing to pay Wong on the fifth pay day, Lebiecki offered Wong a promotion at White Rock.” Id. at ¶ 36. “Lebiecki represented to Wong that the promotion would be effective immediately if Wong signed the written offer, and his raise in salary would be ‘implemented and retroacted' to the previous two pay checks Defendants previously failed or refused to provide.” Id. at ¶ 37. “Wong understood that by signing the offer letter, Defendants would pay him his backpay (grossed up to his new salary) and would pay him prospectively on the regular payroll schedule for White Rock.” Id. at ¶ 38.
“On January 13, 2023, Wong accepted and signed Lebiecki's written offer letter and emailed it to Lebiecki.” Compl. (Doc. 1) at ¶ 39. “On January 25, 2023, Wong also executed a new employment contract titled ‘W2 Employment Agreement,' whereby White Rock hired Wong as a full time W2 employee with an annual salary of $125,000 plus 5% commission (the ‘January W2 Employment Agreement').” Id. at ¶ 40. “Under the terms of the January W2 Employment Agreement, White Rock promised to pay Wong on the 10th and 25th of each month.” Id. at ¶ 41. “Under the terms of the January W2 Employment Agreement, White Rock promised to pay Wong $5,208.33 gross pay per period before withholdings.” Id. at ¶ 42. “Defendants never paid Wong his backpay or his salary moving forward[,] [and] Wong continued to work for White Rock based on Defendants' promises to pay him all wages due and owing.” Id. at ¶ 43.
“Wong worked for Defendants for three months without pay.” Id. at ¶ 53. “During this time, Wong repeatedly and consistently requested that White Rock pay him what he was owed under the terms of the October W2 Employment Agreement, Lebiecki's January 13, 2023 offer letter, and the January W2 Employment Agreement.” Id. at ¶ 54. From December 2022 through February 2023, Defendant failed or refused to pay Plaintiff for the wages he earned, as well as the commissions owed to him. Id. at ¶¶ 55-62. “Wong's employment with White Rock ended on February 28, 2023.” Compl. (Doc. 1) at ¶ 52.
On May 23, 2023, Plaintiff filed the instant case alleging a violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 206(a), based on a failure to pay minimum wages; a violation of the Arizona Minimum Wage Act (“AMWA”), A.R.S. § 23-363, et seq., based on a failure to pay minimum wages; a violation of the Arizona Wage Act (“AWA”), A.R.S. § 23-350, et seq., based on a failure to pay wages that were due and owing; breach of contract; and a breach of the implied covenant of good faith and fair dealing. See Compl. (Doc. 1). Plaintiff sought judgment against Defendants; an award of unpaid minimum wage damages; compensatory damages, including liquidated damages; treble damages equal to Plaintiff's unpaid wages; pre- and post-judgment interest; and reasonable attorneys' fees. Id. The Defendants did not answer or otherwise respond to Plaintiff's Complaint. On July 12, 2023, Plaintiff filed an Application for Entry of Default Against Defendants (Doc. 10). On July 18, 2023, the Clerk of Court entered Default pursuant to Rule 55(a), Federal Rules of Civil Procedure, against Defendants White Rock Phlebotomy LLC and Caroline Anne Lebiecki. See Clerk's Entry of Default (Doc. 11). No responses have been filed. ... ... ...
II. ANALYSIS
A. Jurisdiction
As a preliminary matter, the Court addresses whether it has jurisdiction to hear Mr. Wong's claims. “When entry of a default judgment is sought against a party who has failed to plead or otherwise defend, the district court has an affirmative duty to look into its jurisdiction both of the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (citations omitted).
1. Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). A district court has original jurisdiction “of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The FMLA is a law of the United States, and as such this Court has original jurisdiction over this cause of action. Furthermore, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Plaintiff's federal claim arises from Defendants' failure to pay him minimum wage for work he performed. See Compl. (Doc. 1). Plaintiff's state law claims are founded on the same facts. See id. Because all of Plaintiff's state and federal claims arise from “a common nucleus of operative fact,” this Court has subject matter over the entire case. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).
2. Personal Jurisdiction
Defendants are an Arizona limited liability company doing business in Pima County, and its Member-Manager who resides in Maricopa County. As Arizona residents, they are both subject to the jurisdiction of this Court. The Court also considers the adequacy of the service of process on Defendants White Rock Phlebotomy, LLC and Caroline Anne Lebiecki. See e.g., SEC v. Internet Sol'ns for Business, Inc., 509 F.3d 1161, 1165 (9th Cir. 2007) ( reviewing de novo whether “default judgment is void because of lack of personal jurisdiction due to insufficient service of process.”); Mason v. Genisco Technology, Corp., 960 F.2d 849, 851 (“A person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process”). Regarding service of process, Rule 4(e), Federal Rules of Civil Procedure, provides:
Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]Fed. R. Civ. P. 4(e). Neither of the Defendants is a minor or an incompetent.
Other than minors or incompetent persons, or where service has been waived, Arizona law requires:
[A]n individual may be served by: (1) delivering a copy of the summons and of the pleading to that individual personally; (2) leaving a copy of each at that individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.Ariz. R. Civ. P. 4.1(d). “Unless service is waived, proof of service must be made to the court.” Fed.R.Civ.P. 4(1). The rules further direct that “[e]xcept for service by a United States marshal or deputy marshal, proof must be made by the server's affidavit.” Id. On June 5, 2023, Plaintiff filed Affidavits of Service (Docs. 6 & 7) indicating personal service on Caroline Anne Lebiecki and by leaving the copies for White Rock Phlebotomy LLC with Lydia Libecki in the presence of Caroline Anne Lebiecki, the Statutory Agent.Accordingly, Plaintiff has demonstrated valid service upon Defendants.
The Affidavits of Service (Docs. 6 & 7) indicate that service was effectuated on June 3, 2023.
On July 12, 2023, Plaintiff filed an Application for Entry of Default Against Defendants (Doc. 10). On July 18, 2023, the Clerk of Court entered Default pursuant to Rule 55(a), Federal Rules of Civil Procedure, against Defendants White Rock Phlebotomy LLC and Caroline Anne Lebiecki. See Clerk's Entry of Default (Doc. 11). Plaintiff's motion for default judgment is now ripe.
The Court finds that Plaintiff has satisfied the procedural requirements for default judgment against all Defendants. Plaintiff's request for relief does not exceed that prayed for in the Complaint, and his application for default judgment complies with the Federal Rules of Civil Procedure. Thus, this Court need only analyze the Eitel factors to determine whether default judgment is appropriate in this case.
B. Default Judgment
Rule 55, Federal Rules of Civil Procedure, provides for the entry of default judgment by the Court. Fed.R.Civ.P. 55(b)(2). “The district court's decision whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). After entry of default by the Clerk of the Court pursuant to Rule 55(a), Federal Rules of Civil Procedure, the Court may grant default judgment pursuant to Rule 55(b)(2). See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (discussing the two-step process required by Rule 55). In exercising its discretion whether to grant default judgment, the Court may consider 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 decisions on the merits.Id. at 1471-72 (citations omitted). Upon entry of default by the Clerk, the general rule is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 91718 (9th Cir. 1987) (citations omitted). Therefore, Plaintiff is “required to provide proof of all damages sought in the complaint.” PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002). ...
1. Eitel Factors
a. Possibility of Prejudice to the Plaintiff
With respect to the first Eitel factor, Plaintiff would suffer prejudice if the default judgment is not entered, because he would otherwise be without recourse for recovery. PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Moreover, by failing to answer or otherwise respond to the allegations in Plaintiff's Complaint, the Defendants are deemed to have admitted the truth of those statements. Defendants have not contested the fact that they failed to compensate Plaintiff for wages, commissions, and expenses that he was owed based upon his employment. The Court finds that this first Eitel factor weighs in favor of Plaintiff.
b. Substantive Merits and Sufficiency of the Complaint
The second and third Eitel factors are interrelated and shall be considered in tandem. These factors support default judgment where Plaintiff's well-pleaded complaint states sufficient facts for a plausible claim for relief pursuant to Rule 8, Federal Rules of Civil Procedure. See PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002); Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978). Plaintiff brought this action pursuant to the FLSA and AMWA based on Defendant's failure to pay minimum wages, the AWA for a failure to pay wages at all, and Arizona law regarding breach of contract and breach of the implied covenant of good faith and fair dealing. See Compl. (Doc. 1). The Court will review each of Plaintiff's claims and weigh the substantive merits and sufficiency of his Complaint (Doc. 1).
i. Fair Labor Standards Act minimum wage violations
The FLSA mandates that “[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce” a minimum wage of $7.25 an hour. 29 U.S.C. § 206(a). An “employee” is defined as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). The statute defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee[.]” 29 U.S.C. § 203(d). The FLSA “defines the verb ‘employ' expansively to mean ‘suffer or permit to work.'” NationwideMut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (quoting 29 U.S.C. §§ 203(e), (g)). “[T]he words ‘suffer' and ‘permit' as used in the statute mean ‘with the knowledge of the employer.'” Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) (alterations in original) (citations omitted). The Supreme Court has recognized the “striking breadth” of this definition, which “stretches the meaning of ‘employee' to cover some parties who might no qualify as such under a strict application of traditional agency law principles.” NationwideMut. Ins. Co., 503 U.S. at 326.
In order to state a claim for unpaid minimum wages under the FLSA, a Plaintiff must “allege facts showing that there was a given week in which he was entitled to but denied minimum wages[.]” Landers v. Quality Commc'ns, Inc. 771 F.3d 638, 645 (9th Cir. 2014). Plaintiff alleges that he was employed by Defendants, and that he “worked for Defendants for three months without pay.” Compl. (Doc. 1) at ¶¶ 18-19, 28, 53. Accepting this allegation as true, Plaintiff has shown that Defendants violated the FLSA by denying him a minimum wage.
ii. Statutory state law wage violations
The AMWA mandates that “[e]mployers shall pay employees no less than the minimum wage,” which was $12.80 per hour in 2022 and $13.85 per hour in 2023. See A.R.S. § 23-363(A)-(B); see also Compl. (Doc. 1) at ¶ 72-74. “Any employer who fails to pay the wages . . . required . . . shall be required to pay the employee the balance of the wages . . . owed, including interest thereon, and an additional amount equal to twice the underpaid wages[.]” A.R.S. § 23-364. 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). The AMWA defines “employer” to “include[] 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).
The AWA requires “[e]ach employer, on each of the regular paydays, shall pay to the employees all wages due to the employees up to that date[.]” A.R.S. § 23-351(C). The AWA further provides that any employer who “fails to pay wages due any employee” may be subject to recovery by the employee of “an amount that is treble the amount of the unpaid wages.” A.R.S. § 23-355(A). Similar to the FLSA and AMWA, the AWA defines “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. § 23-350(2). The AWA defines “employer” to mean “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). “This statutory definition does not . . . authorize individual liability 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.” Rosen v. Fasttrak Foods LLC, No. CV-19-05292-PHX-DWL, 2021 WL 2981590, at *5 (D. Ariz. July 15, 2021).
The facts alleged by Plaintiff demonstrate that he was employed by Defendants for purposes of the AMWA, and that he “worked for Defendants for three months without pay.” Compl. (Doc. 1) at ¶¶ 18-19, 28, 53. The narrow definition of employer under the AWA, however, excludes Defendant Lebiecki from individual liability. The Court finds that accepting these allegations as true, Plaintiff has shown that Defendant White Rock Phlebotomy, LLC violated the AMWA and AWA, and Defendant Lebiecki is liable for violation of the AMWA.
iii. State law breach of contract
It is well-established law that “[t]o bring an action for the breach of [a] contract, the plaintiff has the burden of proving the existence of the contract, its breach and the resulting damages.” Graham v. Asbury, 540 P.2d 656, 657 (Ariz. 1975) (citations omitted). Furthermore, “[t]he law implies a covenant of good faith and fair dealing in every contract.” Rawlings v. Apodaca, 726 P.2d 565, 569 (Ariz. 1986) (en banc) (citations omitted). This duty “arises by virtue of a contractual relationship” and requires that “neither party will act to impair the right of the other to receive the benefits which flow from their agreement or contractual relationship.” Id. at 569-70 (citations omitted). Plaintiff properly alleges the existence of a contract, its breach, and the resulting damages. Plaintiff further alleges sufficient facts to establish that Defendants acted in a manner which impaired Plaintiff's right to receive the benefits of their contractual relationship. Accepting these allegations as true, Plaintiff has shown that Defendants breached their contract with Plaintiff and the implied covenant of good faith and fair dealing.
iv. Sufficient and meritorious
The Court finds Plaintiff's Complaint (Doc. 1) alleges sufficient facts to support the violations alleged and the substantive merits favor Plaintiff. As such, the second and third factors favor default judgment.
c. Amount of Money at Stake
The fourth Eitel factor directs the Court to consider the amount of money at stake in relation to the seriousness of Defendants' conduct. Eitel, 782 F.2d at 1471-72. “If the sum of money at stake is completely disproportionate or inappropriate, default judgment is disfavored.” Twentieth Century Fox Film Corp. v. Streeter, 438 F.Supp.2d 1065, 1071 (D. Ariz. 2006). Here, Plaintiff seeks unpaid wages, liquidated damages, penalties, and interest. See Pl.'s Mot. for Entry of Default J. (Doc. 12) at 6-8. Plaintiff seeks to recover $118,973.58 in statutory and contractual damages and penalties. Defendants' violations of state and federal law, as well as their breach of contract, is serious enough to justify default judgment.
For reasons discussed below, the Court will not award the entire amount sought by Plaintiff. However, Plaintiff's total amount of damages sought is neither disproportionate nor inappropriate.
d. The Possibility of a Dispute Concerning Material Facts
The fifth Eitel factor contemplates the possibility of a dispute concerning material facts. Upon entry of default “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). The Defendants have had more than an ample amount of time to defend against Plaintiff's claim, yet have failed to do so. There are no disputed issues of material fact which would preclude default judgment. PepsiCo, 238 F.Supp.2d at 1177.
e. Whether Default Was Due to Excusable Neglect
The sixth Eitel factor considers whether the default was due to excusable neglect. Defendants were served with the summons and Complaint on June 3, 2023. See Affidavit of Service (Docs. 6 & 7). There is no evidence before this Court to indicate that the Defendants' failure to answer or otherwise respond to Plaintiff's complaint is due to excusable neglect and a substantial amount of time has passed since service was made. As such, this factor favors entry of default judgment.
f. Public Policy Favoring Decisions on the Merits
The seventh Eitel factor involves “the strong public policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel, 782 F.2d at 1472. This concept, however, is not an absolute. Rule 55(a), Federal Rules of Civil Procedure, specifically contemplates “termination of a case before hearing the merits . . . whenever a defendant fails to defend an action.” PepsiCo, Inc. v. California Security Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Thus, despite the strong public policy in favor of decisions on the merits, cases such as this make “a decision on the merits impractical, if not impossible.” Id. The Court finds that this factor does not outweigh the other Eitel factors discussed above. See Tolano v. El Rio Bakery, No. CV-18-00125-TUC-RM, 2019 WL 6464748, at *6 (D. Ariz. Dec. 2, 2019).
2. Conclusion
After consideration of the Eitel factors, the Court finds it appropriate to grant default judgment.
C. Damages
Unlike the factual allegations of the Complaint, allegations regarding the amount of damages are not taken as true. Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). “A default judgment may be entered without a hearing on damages when the amount claimed is capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits.” Taylor Made Golf Co. v. Carsten Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal. 1997) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir.1983)). Plaintiff bears the burden of “proving up” damages; however, “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 Prod., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citing Cripps v. Life Ins. Co. of N. America, 980 F.2d 1261, 1267 (9th Cir. 1992)). Plaintiff has submitted a sworn affidavit and other documentary evidence in support of his damages claim. Pl.'s Mot. for Entry of Default J. (Doc. 12), Wong Decl. & Exhs. 1-5.
Plaintiff claims damages under the FLSA, AMWA, AWA, and for breach of contract. Id. at 6-9 & Wong Decl. The FLSA provides damages “in the amount of [the employee's] unpaid minimum wages . . . and [] an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Under the AMWA “[a]ny employer who fails to pay the wages . . . required under this article shall be required to pay the employee the balance of the wages . . . owed, including interest thereon, and an additional amount equal to twice the underpaid wages[.]” A.R.S. § 23-364(G). Similarly, the AWA provides for the employee to recover “an amount that is treble the amount of the unpaid wages.” A.R.S. § 23-355(A).
1. Statutory Damages
In his declaration, Plaintiff states that from December 1, 2022 through February 28, 2023, he worked 512 unpaid hours at a rate of $61.03 per hour. Wong Decl. (Doc. 12-1) at ¶ 6. Plaintiff asserts that he is owed federal minimum wages of $3,712.00, with double damages pursuant to the FLSA, for a total of $7,424.00, plus interest. Plaintiff further asserts that he is owed state minimum wages of $6,906.40 under the AMWA, with treble damages, for a total of $20,719.20, plus interest. Finally, Plaintiff asserts that he is owed contractual wages of $31,249.98, pursuant to the AWA, with treble damages for a total of $93,749.94, plus interest. Plaintiff concedes that he is not entitled to recover under each of the three theories. Pl.'s Mot. for Entry of Default J. (Doc. 12) at 6-8; see Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 333 (1980) (“courts can and should preclude double recovery by an individual”); Acosta v. Pindernation Holdings LLC, No. CV-23-0086-PHX-JFM, 2023 WL 3951222, at *4-5 (D. Ariz. Mar. 1, 2023), report and recommendation adopted, 2023 WL 3951211 (D. Ariz. Mar. 23, 2023) (finding no basis to authorize stacked awards under the FLSA, the AMWA, and the AWA); see also Conway v. Icahn & Co., Inc., 16 F.3d 504, 511 (2d Cir. 1994) (“[w]here a plaintiff seeks recovery for the same damages under different legal theories, only a single recovery is allowed”).
Although Plaintiff claims his hourly rate was $61.03, this does not seem to be correct. The January 2023 employment contract, confirmed by the promotion letter, sets his base pay at $125,000.00 annually, which would be $60.10 per hour ($125,000.00 ÷ 2080 = $60.096). See Pl.'s Mot. for Entry of Default J. (Doc. 12), January 2023 Contract (Exh. “2”) & Lebiecki Ltr. to Wong (Exh. “3”). Defendants, however, acknowledge that Plaintiff was owed $5,208.33 per pay period, which would be $65.10 ($5,208.33 ÷ 80 = $65.10). See Pl.'s Mot. for Entry of Default J. (Doc. 12), E-mail from Ruthaford to Wong 2/10/2023 (Exh. “4”). Because Defendants have admitted to owing Plaintiff $5,208.33 per pay period, the Court finds it appropriate to use this amount for the final calculation of damages under the AWA.
Plaintiff's declaration provides that he worked twenty-two (22) days in December 2022 for a total of 176 hours and forty-two (42) days in January through February 2023 for a total of 336 hours. Wong Decl. (Doc. 12-1) at ¶¶ 15, 18. As noted, supra, in December 2022, the Arizona minimum wage was $12.80 per hour, and beginning in January 2023, the Arizona minimum wage was $13.85 per hour. See A.R.S. § 23-363.
This amount reflects the $5,208.33 times six (6) pay periods that Plaintiff worked, but was not paid.
Because the amount owed under the AWA engulfs the amounts owed under the FLSA and AMWA, Plaintiff seeks an award against both Defendants for $93,749.94, plus interest. Pl.'s Mot. for Entry of Default J. (Doc. 12) at 7; see also Valenzuela v. Esser, No. CV-22-01180-PHX-CDB, 2023 WL 2815548, at *7 (D. Ariz. Mar. 14, 2023) (“Plaintiff is entitled only to the maximum amount of damages under either the state or federal statute.”), report and recommendation adopted, 2023 WL 2814078 (D. Ariz. Apr. 6, 2023). As discussed in Section II.B.l.b.ii., however, Defendant Lebiecki cannot be held individually liable pursuant to the AWA. As such, Plaintiff is entitled to damages from Defendant White Rock Phlebotomy, LLC in the amount of $93,749.94. Defendant Lebiecki is only liable for the minimum unpaid wages. Because the Arizona minimum wage is higher than federal law provides, and the AMWA provides for treble damages, the Court finds Plaintiff entitled to damages from Defendant Lebiecki in the amount of $20,719.20.
Arizona law provides for interest at a rate of ten per cent per annum. A.R.S. § 44-1201(A)(2).
The Court addresses pre-judgment interest, infra.
The Court addresses pre-judgment interest, infra.
2. Breach of Contract Damages
Plaintiff seeks $923.40 in covered reimbursement expenses. Pl.'s Mot. for Entry of Default J. (Doc. 12) at 8. Plaintiff's declaration states that on January 17, 2023, he submitted a reimbursement request via e-mail for $283.44 in covered expenses and submitted a second request on February 1, 2023, for $639.96 in covered expenses. Wong Decl. (Doc. 12-1) at ¶¶ 25-26. Supporting documents confirm Plaintiff's January 17, 2023 request for $283.44; however, they only establish $550.86 in his February 1, 2023 request. See Pl.'s Mot. for Entry of Default J. (Doc. 12), Exh. “5.” The Court finds that Plaintiff is entitled to $834.30 for unreimbursed expenses.
Plaintiff also seeks $20,000.00 for unpaid commissions. Pl.'s Mot. for Entry for Default J. (Doc. 12) at 8. Plaintiff alleges that he “successfully recruited Rios Southwest Medical Group (‘Rios') to White Rock.” Wong Decl. (Doc. 12-1) at ¶ 30. Plaintiff states that “Rios is a large medical practice that has generated significant revenue for White Rock[,]” and “[b]ased on [his] understanding of the average costs of the services White Rock provided Rios and the demand for services that Rios's twelve clinics will generate, [he] believe[s] White Rock receives approximately $50,000.00 to $100,000.00 in revenue monthly for the work it does for Rios.” Id. at ¶¶ 31, 33. Plaintiff “believe[s] [he] [is] owed at least a $20,000.00 commission for securing Rios's business for White Rock.” Id. at ¶ 34. In Arizona, it is well-established law that “[d]amages that are speculative, remote or uncertain may not form the basis of a judgment.” Coury Bros. Ranches, Inc. v. Ellsworth, 446 P.2d 458, 464 (Ariz. 1968). Plaintiff fails to provide any evidence to establish when he secured Rios as a client, or the amount of any receivables from Rios under his accounts. Furthermore, Plaintiff's employment contracts provide for different amounts of commission compensation-the October 2022 agreement contemplates “15% commission on white rock [sic] Phlebotomy receivables on accounts under W2 employee[,]” while the January 2023 contract provides for “5% gross commissions on white rock [sic] Phlebotomy receivables on accounts under W2 employee.” See Pl.'s Mot. for Entry of Default J. (Doc. 12), Exh. “1.”) Plaintiff's unsubstantiated estimate of the commission owed “is too speculative and conjectural to be the basis of a judgment.” Coury Bros., 446 P.2d at 465. The Court finds that Plaintiff has not met his burden to prove entitlement to unpaid commissions.
3. Pre-judgment Interest
Plaintiff seeks pre-judgment interest on the entirety of his award; however, he is not entitled to prejudgment interest on penalty awards. The Arizona Supreme Court has observed, “[o]f course, prejudgment interest is calculated only on the actual severance pay, not on the penalty amount.” Schade v. Diethrich, 760 P.2d 1050, 1064 (Ariz. 1988) (finding Plaintiff was entitled to pre-judgment interest on claim under Arizona Wage Act). Further, the AMWA states, “[a]ny employer who fails to pay the wages or earned paid sick time required under this article shall be required to pay the employee the balance of the wages or earned paid sick time owed, including interest thereon, and an additional amount equal to twice the underpaid wages or earned paid sick time.” A.R.S. § 23-364. The plain language of the AMWA clearly contemplates that an employee is only entitled to interest on his or her unpaid wages, not the penalty amount. Plaintiff's final day of employment was February 28, 2023. Compl. (Doc. 1) at ¶ 52. As such, the Court will provide for unpaid interest on Plaintiff's unpaid wages and for his unreimbursed expenses from March 1, 2023. ...
4. Damages Award
The Court finds that Plaintiff is entitled to damages as follows:
A. On his Arizona Wage Act Claim, Plaintiff shall take judgment against Defendant White Rock Phlebotomy as follows:
1) $31,249.98 in unpaid wages;
2) an additional $62,499.96 as treble damages on the unpaid wages;
3) pre-judgment interest of 10% per annum on the unpaid wages from March 1, 2023, to the date of entry of default judgment; and
4) post-judgment interest on all amounts awarded.
The Court calculates monthly interest of $260.31 ($31,249.98 x 0.00833). As of the date of this Report and Recommendation, the total interest owed would be $2,967.53 ($260.31 x 11.4 months).
B. On his Arizona Minimum Wage Act Claim, Plaintiff shall take judgment against Defendant Caroline Anne Lebiecki as follows:
1) $6,906.40 in minimum wages due;
2) an additional $13,812.80 as treble damages;
3) pre-judgment interest of 10% per annum on the unpaid wages from March 1, 2023, to the date of entry of default judgment; and
4) post-judgment interest on all amounts awarded.
C. On his Breach of Contract Claim, Plaintiff shall take judgment against Defendant White Rock Phlebotomy and Defendant Caroline Anne Lebiecki, joint and severally, as follows:
1) $834.30 for unreimbursed expenses;
2) pre-judgment interest of 10% per annum on the unreimbursed expenses from March 1, 2023, to the date of entry of default judgment; and
3) post-judgment interest.
D. Attorneys' Fees
Plaintiff asserts that following the entry of default judgment he will be entitled to recover attorneys' fees and costs. Pl.'s Mot. for Entry of Default J. (Doc. 12) at 9-10. Plaintiff shall have fourteen (14) days from the entry of default judgment to file a fee application. If a motion for attorneys' fees and costs is filed, it shall be accompanied by an electronic spreadsheet, to be e-mailed to the Court, containing an itemized statement of legal services with all information required by LRCiv. 54.2(e)(1). The spreadsheet shall automatically total the amount of fees requested, but it does not relieve the moving party of its burden under LRCiv. 54.2(d) to attach all necessary supporting documentation.
III. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge RECOMMENDS that the District Judge enter an order GRANTING Plaintiff Derek Quen Wong's Motion for Entry of Default Judgment Against Defendants (Doc. 12).
IT IS FURTHER RECOMMENDED that Plaintiff be awarded damages as follows:
A. On his Arizona Wage Act Claim against Defendant White Rock Phlebotomy:
1) $31,249.98 in unpaid wages;
2) an additional $62,499.96 as treble damages on the unpaid wages;
3) pre-judgment interest of 10% per annum on the unpaid wages from March 1, 2023, to the date of entry of default judgment; and
4) post-judgment interest on all amounts awarded.
The Court calculates monthly interest of $260.31 ($31,249.98 x 0.00833). As of the date of this Report and Recommendation, the total interest owed would be $2,967.53 ($260.31 x 11.4 months).
B. On his Arizona Minimum Wage Act Claim against Defendant Caroline Anne Lebiecki:
1) $6,906.40 in minimum wages due;
2) an additional $13,812.80 as treble damages;
3) pre-judgment interest of 10% per annum on the unpaid wages from March 1,
2023, to the date of entry of default judgment; and
4) post-judgment interest on all amounts awarded.
C. On his Breach of Contract Claim against Defendant White Rock Phlebotomy and Defendant Caroline Anne Lebiecki, joint and severally:
1) $834.30 for unreimbursed expenses;
2) pre-judgment interest of 10% per annum on the unreimbursed expenses from March 1, 2023, to the date of entry of default judgment; and
3) post-judgment interest.
IT IS FURTHER RECOMMENDED that Plaintiff be allowed to file a fee application within fourteen (14) days from the entry of default judgment.
Pursuant to Section 636(b), 28 U.S.C., and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed the parties shall use the following case number: CV-23-0234-TUC-RCC.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.