Perez v. Hitt Contracting, Inc.

• Court: District Court, District of Columbia
• Decided: November 7, 2023
• Docket: Civil Action No. 2022-3156
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JORGE PEREZ; ALEJANDRA TORRES; ARYS SOLANO,

Plaintiffs,

v. Civil Action No. 22-cv-03156 (TSC) HITT CONTRACTING, INC.; BROTHER’S MECHANICAL, INC.; DAYCJ PLUMBING & MECHANICAL INC.; EDGAR JIMENEZ,

Defendants.

MEMORANDUM OPINION

Plaintiffs Jorge Perez, Alejandra Torres, and Arys Solano claim they were underpaid

while working on a construction project in violation of the Fair Labor Standards Act (FLSA) and

the D.C. Code. Two of the defendants are in default—DayCJ Plumbing & Mechanical Inc.

(DayCJ) and Edgar Jimenez (“Defaulting Defendants”). Plaintiffs now move for default

judgment, or, in the alternative, summary judgment, against Defaulting Defendants. For the

following reasons, the court will GRANT Plaintiffs’ motion for default judgment as to

Defaulting Defendants.

I. BACKGROUND

Plaintiffs sued Defendants HITT Contracting, Inc. (HITT), Brother’s Mechanical, Inc.

(BMI), DayCJ, and Edgar Jimenez on October 17, 2022, alleging Defendants violated the FLSA,

the D.C. Minimum Wage Act (DCMWA), and the D.C. Wage Payment and Collection Law

(DCWPCL). Compl., ECF No. 1 at 2, 8–13. Plaintiffs claim they were underpaid while working

on a construction project in which they were directly employed by DayCJ, a subcontractor of

Page 1 of 8 BMI, which was performing sheet metal work pursuant to a contract with HITT. Id. at 1–2.

Jimenez was the President of DayCJ at all relevant times. Id. at 5. Perez alleges Defendants

failed to pay him for 80 hours of work he performed; Solano alleges Defendants failed to pay

him for 273 hours of work; and Torres alleges her wage rate was more than two dollars less than

the District of Columbia minimum wage and Defendants failed to pay her for 233 hours of work

she performed. Id. at 7.

Each Defendant filed a separate answer. See ECF Nos. 11, 16, 18, 24. At the outset,

DayCJ and Jimenez were jointly represented, and HITT and BMI were each separately

represented. Plaintiffs settled with HITT and BMI (“Responsive Defendants”) and this court

approved the settlement agreements. See Joint Mot. for Settlement, ECF No. 25; Order, ECF

No. 26. The claims against Responsive Defendants were then terminated. See Notice of

Voluntary Dismissal, ECF No. 27; Minute Order, May 3, 2023.

On May 17, 2023, counsel for DayCJ and Jimenez moved to withdraw from

representation of both clients, claiming that he was not receiving the information and cooperation

necessary to provide effective representation. ECF No. 30 at 1. The certificate of service

indicates that counsel mailed a copy of the motion to both clients. Id. at 2; see LCvR 83.6(c)

(requiring notice to the party where the party has not consented to withdrawal). At a scheduling

conference on May 26, 2023, the court granted the motion to withdraw, set an ascertainment of

counsel hearing for June 26, 2023, and ordered DayCJ and Jimenez to inform the court by the

date of the hearing whether they had secured replacement counsel, or whether Jimenez planned

to proceed pro se. See Minute Order, May 26, 2023. The court memorialized its directive by

Minute Order, a copy of which was sent to Defaulting Defendants on May 30, 2023.

Page 2 of 8 Neither defendant informed the court of their intentions, and neither defendant appeared

at the ascertainment of counsel hearing or had counsel attend on their behalf. See Minute Order,

June 26, 2023. Plaintiffs subsequently sought and obtained a Clerk’s Entry of Default against

Defaulting Defendants under Federal Rule of Civil Procedure 55(a) on June 30, 2023, and July 3,

2023, respectively. ECF Nos. 37, 40. Plaintiffs now move for default judgment against

Defaulting Defendants, or, in the alternative, summary judgment.

II. LEGAL STANDARD

Default judgment under Federal Rule of Civil Procedure 55(b) is appropriate where an

unresponsive party halts the adversarial process. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir.

2005). In arguing for default judgment, plaintiffs “may rest their argument on their pleadings,

bolstered by such affidavits and other written materials as they can otherwise obtain.” Id. The

court must take every well-pleaded allegation in the Complaint as true because the Clerk’s entry

of default under Federal Rule of Procedure 55(a) deems the defendant to have admitted all well-

pleaded allegations. Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001).

III. ANALYSIS

A. Liability

i. Minimum wage claims

Plaintiffs first contend that Defendants violated the FLSA and D.C. Code by failing to

pay Plaintiffs a minimum wage. The FLSA requires that an employer pay each employee “not

less than the minimum wage,” 29 U.S.C. § 206(b), of $7.25 per hour, id. § 206(a)(1)(C), and the

DCMWA requires employers to pay their employees a minimum wage, which, at the relevant

time, was $15.20 per hour. D.C. Code § 32-1003(a)(5)(A)(v)–(6)(A). The DCMWA is

construed consistently with the FLSA. E.g., Orellana v. NBSB Inc., 332 F. Supp. 3d 252, 257

(D.D.C. 2018); Steinke v. P5 Sols., Inc., 282 A.3d 1076, 1084 (D.C. 2022). Page 3 of 8 To show that they are entitled to relief on their minimum wage claims, Plaintiffs must

first establish that they had an employment relationship with Defaulting Defendants, 29 U.S.C.

§ 206(b); D.C. Code § 32-1003(a)(5)(A), rather than an independent contractor relationship, see

Rhea Lana, Inc. v. United States, 925 F.3d 521, 523 (D.C. Cir. 2019). In determining whether an

employment relationship exists, the court looks to whether one party has the power to hire or fire

the other, supervises and controls their work schedules or conditions of employment, and

determines the rate and method of payment. Morrison v. Int’l Programs Consortium, Inc., 253

F.3d 5, 11 (D.C. Cir. 2001). Plaintiffs submitted declarations contending that Jimenez hired

them; that Jimenez and DayCJ set their wage rates and schedules; that “DayCJ” was printed at

the top of the time sheets; and that BMI and DayCJ coordinated regarding employee

compensation. Perez Dec’l, App., ECF No. 41-3 at App.002–App.003; Solano Dec’l, id. at

App.007–App.008; Torres Dec’l, id. at App.012–App.013; DayCJ Timesheet, id. at App.016.

DayCJ sent Plaintiffs paychecks signed by Jimenez. Perez Dec’l, id. at App.003, App.005;

Solano Dec’l, id. at App.008; Torres Dec’l, id. at App.013. Taken as true, these declarations

suffice to show that DayCJ and Jimenez employed Plaintiffs.

Plaintiffs have also established they were not paid the minimum wage. Each Plaintiff

declares that Defendants failed to pay them for significant periods of time: Perez 80 hours, id. at

App.003, Solano 273 hours, id. at App.008; and Torres 233 hours, id. at App.014. Because

Defaulting Defendants have not participated in the litigation, Plaintiffs have been unable to

develop the record to include official records of their working hours and Defendants’ payment

history. In this context, Plaintiffs’ declarations suffice to establish liability for Plaintiffs’

minimum wage claims. E.g., Zaldaña v. Morrogh, No. 20-cv-3810, 2022 WL 203471, at *5

Page 4 of 8 (D.D.C. Jan. 24, 2022) (“[A]ssertions supported by detailed allegations that are fact-specific to

each Plaintiff … are sufficient” to establish FLSA violations in declaratory judgment posture).

ii. Prompt payment claims

Plaintiffs also allege that Defendants violated the FSLA and D.C. Code by failing to

promptly pay them. Courts have interpreted the FLSA to contain an implicit “requirement that

wage payments due to employees must be paid promptly and at regular intervals.” Perez v. C.R.

Calderon Constr., Inc., 221 F. Supp. 3d 115, 138 (D.D.C. 2016) (citing Circuit cases). Similarly,

the DCWPCL requires employers to pay employees “on regular paydays designated in advance

by the employer and at least twice during each calendar month.” D.C. Code § 32-1302. If an

employee quits or resigns, the employer must pay the wages that employee is owed “upon the

next regular payday or within 7 days from the date of quitting or resigning, whichever is earlier.”

Id. § 32-1303(2). Here, having established an employment relationship with Defaulting

Defendants, Plaintiffs need to show only that wage payments were not made promptly at regular

intervals to show they are entitled to relief on their prompt payment claims. See Perez, 221

F. Supp. 3d at 139–40.

Plaintiffs sufficiently allege they were not paid promptly. Their declarations—signed in

August 2023—indicate that Defendants have not paid Plaintiffs for work they completed in 2021

and 2022. Perez Dec’l, ECF No. 41-3 at App.003–App.004 (January 3, 2022, through January

14, 2022); Solano Dec’l, id. at App.007–App.008 (March 28, 2022, through May 22, 2022);

Torres Dec’l, id. at App.014 (March 28, 2022, through May 22, 2022). Taking those allegations

as true, the court finds that Defaulting Defendants are liable to Plaintiffs under the FLSA and

D.C. labor law.

Page 5 of 8 iii. Joint and several liability

Plaintiffs claim Defaulting Defendants are jointly and severally liable on both claims.

Mem. in Supp., ECF No. 41-1 at 11–12. Under the FLSA and D.C. law, an employing company

and employing individual—such as the President of the company—are jointly and severally

liable so long as they both constitute “employers” under the statutes. See, e.g., Ayala v. Tito

Contractors, Inc., 82 F. Supp. 3d 279, 288 (D.D.C. 2015); Perez, 221 F. Supp. 3d at 144. As

explained above, both DayCJ and Jimenez were Plaintiffs’ “employers” under the FLSA and

D.C. law because they had the power to hire and fire Plaintiffs, set Plaintiffs’ wages and

schedules, and determined how Plaintiffs would be paid for their work. Consequently,

Defaulting Defendants are jointly and severally liable.

B. Damages

Plaintiffs may not recover duplicative damages under the FLSA and D.C. law. See

Sanchez v. Devashish Hosp., LLC, 322 F.R.D. 32, 38 (D.D.C. 2017). Accordingly, they seek

damages under D.C. wage-and-hour laws instead of the FLSA. ECF No. 41-1 at 14; see

Sanchez, 322 F.R.D. at 38 (analyzing damages claim under D.C. law because it is “more

generous to employees” (citation omitted)). D.C. law permits plaintiffs to recover “unpaid

wages, statutory penalties, and an additional amount as liquidated damages equal to treble the

amount of unpaid wages.” D.C. Code § 32-1012(b)(1).

Plaintiffs are entitled to $12,750.80 in unpaid wages and wages paid for less than D.C.’s

minimum wage of $15.20 per hour. Their declarations indicate that Perez is entitled to 80 hours

of pay at his contracted rate of $22 per hour, ECF No. 41-3 at App.003, totaling $1,760, and

Solano is entitled to 273 hours of pay at his rate of $22 per hour, id. at App.008–App.009,

totaling $6,006. Torres is entitled to 233 hours of pay at D.C.’s minimum wage of $15.20

Page 6 of 8 (totaling $3,541.60) along with additional pay for the work she performed for which she was

paid $13.00 per hour rather than $15.20 per hour, which she reasonably estimates at 656 hours—

approximately 40 hours per week during the period of November 22, 2021, through March 27,

2022 (totaling $1,443.20). In addition to the unpaid wages, under the DCWPCL, Plaintiffs are

entitled to liquidated damages in the amount of three times the unpaid wages ($12,750.80)—a

total of $38,252.40.

C. Attorney’s Fees and Costs

D.C. law also permits plaintiffs to recover “costs, including attorney’s fees computed

pursuant to the [Laffey] matrix approved in Salazar v. District of Columbia, 123 F. Supp. 2d 8

(D.D.C. 2000), and updated to account for the current market hourly rates for attorney’s

services.” D.C. Code § 32-1308(b)(1). Plaintiffs are therefore entitled to collect attorneys’ fees

and costs in accordance with the affidavits and evidence they submitted and the Laffey matrix.

See Salazar, 123 F. Supp. 2d 8, 14–15; Sanchez, 322 F.R.D. at 39–40. Plaintiffs support their

request for costs and attorneys’ fees with an affidavit from counsel, which provides that one

partner (approximately ten years out of law school) and one associate (approximately three years

out of law school) worked on the matter for a reasonable total of 22.75 hours—4 hours on

pleadings, 9 hours on motions, and 9.75 hours on case development and administration. ECF

No. 41-3 at App.017–App.020. The time narratives clarify that Plaintiffs do not seek attorney’s

fees or costs associated with work on the case pertaining to only Responsive Defendants. Id. at

App.020.

Applying the Laffey matrix, Plaintiffs request $733 per hour for the partner’s time and

$413 per hour for the associate’s time for a total of $12,115.75. Id. at App.020. Under D.C. law,

plaintiffs are entitled to attorneys’ fees under the Laffey matrix “at the time the determination is

Page 7 of 8 made,” D.C. Code § 32-1308(b)(1), which is $777 per hour for the partner and $437 for the

associate, see Laffey Matrix, www.laffeymatrix.com/see.html (last visited Nov. 7, 2023). The

affidavit also provides for $730 in routine legal costs—$400 for the filing fee and $330 for the

process server, ECF No. 41-3 at App.018; see id. at App.022–App.023 (statements from the

process server), but in the Summary of Damages, Plaintiffs’ request only accounts for $330 in

costs. Plaintiffs are therefore entitled to the $12,115.75 in attorneys’ fees and $330 in costs that

they reasonably request, for a total of $12,445.75.

* * *

In sum, Plaintiffs are entitled to recover $12,750.80 in unpaid wages, $38,252.40 in

liquidated damages, and $12,445.75 in attorneys’ fees and costs, totaling $63,448.95. As

Plaintiffs acknowledge, ECF No. 41-1 at 18 n.6, this court must subtract the amount they

recovered from their settlement agreements with Responsive Defendants—$38,252.40—from the

total amount Plaintiffs are owed. Plaintiffs are therefore entitled to default judgment in the

amount of $25,196.55 ($63,448.95 less $38,252.40).

IV. CONCLUSION

The court will GRANT Plaintiffs’ motion for default judgment as to Defendants DayCJ

Plumbing & Mechanical Inc. and Edgar Jimenez. Plaintiffs are entitled to default judgment and

a monetary sum of $25,196.55 against these jointly and severally liable Defendants. An Order

will accompany this Opinion.

Date: November 7, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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