Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carrillo v. Borges Construction, LLC

United States District Court, D. Maryland

September 30, 2016

JUAN PABLO CARRILLO, et al., Plaintiffs,
v.
BORGES CONSTRUCTION, LLC et al., Defendants.

          Juan Pablo Carrillo, Plaintiff, represented by Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          Juan Pablo Carrillo, Plaintiff, represented by Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC.

          Julio Cesar Sanchez, Plaintiff, represented by Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC & Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC.

          Luis David Castro, Plaintiff, represented by Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC & Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          Enrique Patricio Correa, Plaintiff, represented by Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC & Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          Roger A. Ramos, Plaintiff, represented by Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC & Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          Carlos Humberto Calderon, Plaintiff, represented by Gregg Cohen Greenberg, Zipin, Amster and Greenberg, LLC & Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          Melvin Omar Lemus, Plaintiff, represented by Jason Daniel Friedman, Zipin, Amster and Greenberg, LLC.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, District Judge.

         In this action, Juan Pablo Carrillo, Julio Cesar Sanchez, Luis David Castro, Enrique Patricio Correa, Roger A. Ramos, Carlos Humberto Calderon and Melvin Omar Lemus (collectively, "Plaintiffs") allege violations of the Fair Labor Standards Act ("FLSA") 29 U.S.C. §§ 201 et seq., the Maryland Wage and Hour Laws, ("MWHL"), Md. Code Ann., Lab & Empl. §§ 3-401 el seq., and the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab & Empl. §§ 3-501 et seq., against their former employer, Borges Construction, LLC; its successor corporations, Lu-Ma Construction, LLC, Deco Inc., and LMS Contractors Inc.; and the officers of said corporations, Silvestre Borges, Maria Nicoladle, and Salomon Nicolalde in their individual capacities (collectively, "Defendants"). ECF No. 45. This Memorandum Opinion and accompanying Order address Plaintiffs' Motion for Default Judgment. ECF No. 56. A hearing is unnecessary. See Loc. R. 105.6 (D. Md.). For the reasons stated herein, Plaintiff's Motion will be granted in part, and denied, in part.

         I. BACKGROUND

         Defendant Borges Construction is a waterproofing and construction contractor and subcontractor, performing services in Maryland, Virginia and the District of Columbia. ECF No. 45 ¶ 12. It is a Maryland limited liability company with its principal place of business located in Gaithersburg, Maryland. Id. ¶ 3. During the relevant time period, Defendants Silvestre Borges, Maria Nicoladle, and Salomon Nicolalde were officers and active owners of Borges Construction. Id. ¶ 8. Plaintiffs worked for Defendants as constructions workers and laborers from 2010 through 2013.[1] See ECF Nos. 56-3 through 56-8, 60-1 ¶ 2. Plaintiffs' hours varied, working an average of 52 hours each week. ECF No. 56-1 at 9-18[2]; see also e.g. ECF No. 56-3 ¶ 4. During their employment, Plaintiffs allege that Defendants "willfully and systematically directed and forced Plaintiffs" to underreport the hours they worked each week on preliminary and postliminary work duties. ECF No. 45 ¶¶ 55-60. According to the Third Amended Complaint, each morning, Defendants required Plaintiffs to arrive at Defendants' place of businesses and load Defendants' work trucks before proceeding to the job location. Id. ¶ 56. Similarly, at the conclusion of Plaintiffs' work duties at the job site, Defendants required Plaintiffs to drive Defendants' equipment back to Defendants' place of business and return the equipment to a secure location. Id. ¶ 57. Plaintiffs allege that these work duties, including driving time, were performed by the Plaintiffs primarily for the benefit of Defendants and with Defendants' knowledge. Id. ¶¶ 58-59. Plaintiffs attest that these duties accounted for approximately seven additional unreported hours each week. ECF No. 56-1 at 10-18. Plaintiffs maintain that they were never paid overtime wages for these duties, calculated at one and one half time their regular wages. ECF No. 45 ¶ 62.

         Plaintiffs further allege that Defendants sought to shield themselves from liability by creating a series of successor corporations. Id. ¶¶ 64-67. Plaintiffs state that around the time of the commencement of this lawsuit. Defendants ceased or substantially limited their operations as Borges Construction and began operating through the entity of Defendant Lu-Ma Construction, a Maryland limited liability company with its principal place of business in Gaithersburg, Maryland. Id. ¶¶ 4, 64. Furthermore, on or about May 20, 2013, Plaintiffs' allege that Defendants ceased or substantially limited their operations as Lu-Ma Construction. LLC and began operating through the entity of Defendant Deco Inc., also a Maryland corporation with its principal place of business in Rockville, Maryland. Id. in 5, 65. Finally, in or about February 2014, in an alleged further attempt to limit their liability, Defendants ceased or substantially limited their operations as Lu-Ma Construction, LLC, Deco Inc., and Borges Construction and began operating through the entity of Defendant LMS Contractors Inc., also a Maryland corporation with its principal place of business in Rockville, Maryland. Id. ¶¶ 6, 66. Plaintiffs allege that all of the above referenced corporate defendants share a common identity of officer, director and stockholders; hold themselves out to the public as identical or near identical businesses and the entities perform the same or similar services for the same clientele. Id. ¶¶ 64-67.

         At all times during the period of Plaintiffs' employment, Plaintiffs claim that Defendants were their "employers" for the purposes of the FLSA. MWHL and MWPCL. Id. ¶ 22. Furthermore, Plaintiffs' allege that Defendants were engaged in commerce or in the production of goods within the meanings of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1). Id. ¶ 23. Finally, Plaintiffs state that they were employees who engaged in commerce or the production of good for commerce, under the FLSA, 29 U.S.C. § 207. Id. ¶ 24.

         On February 28, 2013, Plaintiffs filed a Complaint for unpaid wages, liquidated damages and reasonable attorney's fees under the FLSA, MWHL, and MWPCL, ECF No. 1, which they have subsequently amended three times. ECF Nos. 3, 19 and 45. On August 17, 2016, Plaintiffs filed a Motion for Clerk's Entry of Default, ECF No. 54, and the presently pending Motion for Default Judgment was filed the next day. ECF No. 56. An Order of Default was entered by the Clerk of the Court against Defendants on September 8, 2016. ECF Nos. 57-59.

         II. STANDARD OF REVIEW

         "A defendant's default does not automatically entitle the plaintiff to entry of a default judgment: rather, that decision is left to the discretion of the court." Choice Hotels Intern., Inc. v. Savannah Shakti Carp., No. DKC-11-0438, 2011 WL 5118328 at * 2 (D. Md. Oct. 25, 2011) (citing Dow v. Jones, 232 F.Supp.2d 491, 494 (D. Md. 2002)). Although "[t]he Fourth Circuit has a strong policy' that cases be decided on their merits, '" id. (citing United Stales v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.1993)), "default judgment may be appropriate when the adversary process has been halted because of an essentially unresponsive party[.]" Id. (citing S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 421 (D. Md. 2005)).

         "Upon default, the Well-pled allegations in a complaint as to liability are taken as true, although the allegations as to damages are not." S.E.C. v. Lawbaugh, 359 F.Supp.2d 418, 422 (D. Md. 2005). Rule 54(c) of the Federal Rules of Civil Procedure limits the type of judgment that may be entered based on a party's default: "A defaut judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." In entering default judgment, a court cannot, therefore, award additional damages "because the defendant could not reasonably have expected that his damages would exceed th[e] amount [plead in the complaint]." In re Genesys Data Techs., Inc., 204 F.3d 124, 132 (4th Cir. 2000). Where a complaint does not specify an amount, "the court is required to make an independent determination of the sum to be awarded." Adkins v. Teseo, 180 F.Supp.2d 15, 17 (D.D.C. 2001) (citing S.E.G. v. Management Dynamics Inc., 515 F.2d 1801, 814 (2nd Cir. 1975); Au Bon Pain Corp. v. Artect. Inc., 653 F.2d 61, 65 (2nd Cir. 1981)). While the Court may hold a hearing to prove damages, it is not required to do so; it may rely instead on "detailed affidavits or documentary evidence to determine the appropriate sum." Adkins, 180 F.Supp.2d at 17 (citing United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979)); see also Laborers' District Council Pension, et al. v. E.G.S. Inc., No. WDQ-09-3174, 2010 WL 1568595, at t3 (D. Md. Apr. 16, 2010) ("[O]n default judgment, the Court may only award damages without a hearing if the record supports the damages requested.").

         In considering a Motion for Default Judgment, the Court accepts as true the well-pleaded factual allegations in the Complaint as to liability, but nevertheless "must determine whether [those] allegations... support the relief sought in th[e] action." Int'l Painters & Allied Trades Indus. Pension Fund v. Capital Restoration & Painting Co., 919 F.Supp.2d 680, 685 (D. Md. 2013) (citation and internal quotation marks omitted).

         DISCUSSION

         A. Preliminary and Postliminary Activities as Compensable Work under the FLSA

         Here, Plaintiffs allege that Defendants failed to pay them overtime pay for compensable preliminary and postliminary work duties they completed, as required under the FLSA and MWHL. The FLSA requires that an employee must receive compensation "at a rate not less than one and one-half times the regular rate at which he is employed" for any hours worked in excess of forty hours per week. 29 U.S.C. § 207(a)(1). "The MWHL similarly requires that employers pay... an overtime wage of at least 1.5 times the usual hourly wage for each hour worked in excess of forty hours per week." McFeeley v. Jackson St. Entm't, LLC, 47 F.Supp. 3d 260, 275-76 (D. Md. 2014) (internal quotation marks and citations omitted). "The MWHL is the State parallel to the FLSA, and the requirements of that provision mirror those of the federal law. Thus, Plaintiffs' claim[s] under the MWHL stand[] or fall[] on the success of their claims under the FLSA.'" Brown v. White's Ferry, Inc.,280 F.R.D. 238, 242 (D. Md. 2012) (internal citation and quotations omitted). "To prove a prima facie violation of this provision, a plaintiff must show the following: (1) that the plaintiff worked overtime hours for the employer and did not receive ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.