Francisco et al v. Wiley

Filing 95

ORDER ENTERING DEFAULT JUDGMENT AGAINST DEFENDANTS SUSANO AND WILEY INNOVATIONS CONSTRUCTION CORP. Plaintiffs' 81 Motion for Default Judgment is granted. Defendants Alejo Susano and Wiley Innovations Construction Corp. are jointly and severally liable to Plaintiffs. The caption on all subsequent filings in this matter shall reflect the proper parties, as set forth in the caption above. By Judge Christine M. Arguello on 11/16/11.(mnfsl, ) Modified on 11/17/2011 to correct text (mnfsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-00332-CMA-MEH
JOSE JAUN FRANCISCO,
VINCIO GONZALEZ,
JOSE JUAREZ RAMIREZ, and
PEDRO GERGORIO RAFAEL,
Plaintiffs,
v.
ALEJO SUSANO,
WILEY INNOVATIONS CONSTRUCTION CORP., and
DANIEL WILEY,
Defendants.

ORDER ENTERING DEFAULT JUDGMENT AGAINST DEFENDANTS
ALFONSO SUSANO AND WILEY INNOVATIONS CONSTRUCTION CORP.

This matter is before the Court pursuant to Plaintiffs’ Motion for Default
Judgment against Defendants Alejo Susano and Wiley Innovations Construction
Corp. (collectively, “Defendants”).1 (Doc. # 81.) For the reasons discussed
below, default judgment shall be entered against Defendants.
I. BACKGROUND
Pedro Gregorio Rafael, Jose Juan Francisco, Vincio Gonzalez, and Jose
Juarez Ramirez (collectively, “Plaintiffs”) initiated this action on February 17,
2010, asserting violations by Defendants of: the Fair Labor Standards Act

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Defendants Alfonso Susano and Alejo Construction were voluntarily dismissed from
this action on June 8, 2011. (Doc. # 86.) Similarly, Defendant Michelle Wiley was
voluntarily dismissed on July 3, 2011. (Doc. # 89.) Daniel Wiley is still a party to this
action but is not included in Plaintiffs’ Motion. (Doc. # 81.)

(“FLSA”), 29 U.S.C. § 201, et seq.; the Trafficking Victims Protection
Reauthorization Act (“TVPRA”), 18 U.S.C. § 1589, et seq.; the Colorado Wage
Claim Act (“CWCA”), Colo. Rev. Stat. § 8-6-101, et seq.; the Colorado Labor
Code, Colo. Rev. Stat. § 8-2-101, et seq.; and Colorado common law. (Doc.
# 6.) The claims stem from Defendants’ purported abusive and coercive
techniques in recruiting and managing Plaintiffs during their construction work on
the Wyndam, a senior citizens center in Colorado Springs, Colorado.
Plaintiffs contend that Defendant Susano recruited them from Omaha,
Nebraska, to help construct the Wyndam. (Doc. # 82 at 5.) Purportedly,
Plaintiffs agreed to work on the project in Colorado Springs for $10 to $11 an
hour. (Id. at 5-6.) In addition to their wages, Plaintiffs assert that Defendants
promised them: free housing, free meals, and a trip back to Omaha every fifteen
days. (Id. at 6.)
According to Plaintiffs, rather than live up to this bargain, Defendants
made Plaintiffs “sleep on the floor in the living room of a two-bedroom apartment”
and “left the Plaintiffs hungry to the point that they were weak . . . .” (Id. at 7.)
Allegedly, Defendants used thirst and hunger to punish Plaintiffs while
simultaneously withholding pay. (Id. at 7-8.) According to Plaintiffs, when they
were finally paid they received less than their bargained-for wages and less than
minimum wage under the FLSA. (Id. at 11.)
The Clerk of the Court entered default against Alejo Susano on November
10, 2010 (Doc. # 65), and against Wiley Innovations Construction Corp. on

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March 8, 2011 (Doc. # 68). Plaintiffs then provided a Memorandum of Law
detailing the appropriate damage award for the default judgment. (Doc. # 82.)
Thereafter, this Court ordered supplemental briefing on the appropriate damage
award for the TVPRA violations. (Doc. # 93.) Plaintiffs provided an August 1,
2011, Supplemental Memorandum of Law discussing the appropriate damage
award under the TVPRA. (Doc. # 94.) The Court has reviewed the motion, the
exhibits and affidavits, the memoranda, and the applicable law, and is sufficiently
advised on the issues involved. Plaintiffs’ Motion for Default Judgment is
granted.
II. STANDARD OF REVIEW
Default must enter against a party who fails to appear or otherwise defend
a lawsuit. Fed. R. Civ. P. 55(a). Pursuant to Fed. R. Civ. P. 55(b)(1), default
judgment must be entered by the clerk of court if the claim is for “a sum certain”;
in all other cases, as here, “the party must apply to the court for a default
judgment.” Fed. R. Civ. P. 55(b)(2). “[D]efault judgment must normally be
viewed as available only when the adversary process has been halted because
of an essentially unresponsive party. In that instance, the diligent party must be
protected lest he be faced with interminable delay and continued uncertainty as
to his rights. The default judgment remedy serves as such a protection.” In re
Rains, 946 F.2d 731, 732-33 (10th Cir. 1991) (internal quotation marks and
citation omitted). Finally, “when a default judgment is entered on a claim for an
indefinite or uncertain amount of damages, facts alleged in the complaint are

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taken as true, except facts relating to the amount of damages, which must be
proven in a supplemental hearing or proceeding.” United States v. Craighead,
176 Fed. Appx. 922, 925 (10th Cir. 2006) (unpublished) (quoting Am. Red Cross
v. Cmty. Blood Ctr. of the Ozarks, 257 F.3d 859, 864 (8th Cir. 2001)).
III. CONCLUSION OF LAW
Taking the facts discussed above as true, Defendants violated several
state and federal laws. The Court addresses each in turn.
A.

FLSA VIOLATIONS
The FLSA provides covered workers a minimum wage and guarantee of

overtime payment for all hours worked in excess of forty in a given workweek.2
See 29 U.S.C. § 201, et seq. An employer who violates the FLSA minimum
wage provision is liable to the effected employee for the unpaid promised wage
and an additional equal amount as liquidated damages. 29 U.S.C. § 216(b); see
also Chavez v. City of Albuquerque, 630 F.3d 1300, 1304-05 (10th Cir. 2011)
(“The regular rate is the hourly rate actually paid for the normal, non-overtime
workweek.”) (internal quotation marks and citation omitted). As interpreted, this
provision allows for “both compensatory damages as well as ‘an additional equal
amount as liquidated damages,’ essentially doubling the plaintiffs’ damage
award” for regular wage claims. Mumby v. Pure Energy Servs., 636 F.3d 1266,
1272 (10th Cir. 2011) (quoting 29 U.S.C. § 216(b)).

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The amount of the Court’s award on this claim deviates from that articulated by Plaintiff
because of errors contained in Plaintiffs’ Memorandum of Law. (See Doc. # 82 at 1114.)
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In addition to compensatory damages for regular hours worked, an
employee who is required to work more than forty hours per week shall
“receive[ ] compensation for his employment in excess of the [forty hours] at
a rate not less than one and one-half times the [promised wage].” 29 U.S.C.
§ 207(a)(1). Additionally, as with regular hours, employees also receive
liquidated damages for all unpaid overtime wages. 29 U.S.C. § 216(b)
(employees shall receive “an additional equal amount as liquidated damages”
for overtime wages). Accordingly, Plaintiffs’ damages are as follows:
1. Plaintiff Rafael, who was promised a regular rate of $11 per hour, is due
$1,320 for 120 regular hours, plus liquidated damages of $1,320 as
permitted under the FLSA. 29 U.S.C. § 216(b). For his overtime claim,
Plaintiff Rafael is entitled to $676.50 in damages for working 41 hours of
overtime at one and one-half times his regular rate, plus a matching
$676.50 in liquidated damages. 29 U.S.C. § 207; 29 U.S.C. § 216(b).
Therefore, Plaintiff Rafael is entitled to $3,993 in damages for his FLSA
claims.
2. Plaintiff Francisco, who was promised a regular rate of $10 per hour, is
due $2,390 for 239 regular hours worked, plus liquidated damages of
$2,390 as permitted under the FLSA. 29 U.S.C. § 216(b). For his
overtime claim, Plaintiff Francisco is entitled to $1,605 in damages for
working 107 hours of overtime at one and one-half times the regular rate,
plus a matching $1,605 in liquidated damages. 29 U.S.C. § 207; 29

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U.S.C. § 216(b). Therefore, Plaintiff Francisco is entitled to $7,990 in
damages for his FLSA claims.
3. Plaintiff Gonzalez, who was promised a regular rate of $10 per hour, is
due $2,390 for 239 regular hours worked, plus liquidated damages of
$2,390 as permitted under the FLSA. 29 U.S.C. § 216(b). For his
overtime claim, Plaintiff Gonzalez is entitled to $1,605 in damages for
working 107 hours of overtime at one and one-half times the regular rate,
plus a matching $1,605 in liquidated damages. 29 U.S.C. § 207; 29
U.S.C. § 216(b). Therefore, Plaintiff Gonzalez is entitled to $7,990 in
damages for his FLSA claims.
4. Plaintiff Ramirez, who was promised a regular rate of $10 per hour, is due
$1,200 for 120 regular hours worked, plus liquidated damages of $1,200
as permitted under the FLSA. 29 U.S.C. § 216(b). For his overtime claim,
Plaintiff Ramirez is entitled to $442.50 in damages for working 29.5 hours
of overtime at one and one-half times the regular rate, plus a matching
$442.50 in liquidated damages. 29 U.S.C. § 207; 29 U.S.C. § 216(b).
Therefore, Plaintiff Ramirez is entitled to $3,285 in damages for his FLSA
claims.

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B.

TVPRA VIOLATIONS
The TVPRA prohibits recruiting, harboring, transporting, providing, or

obtaining by any means any person for labor or services in violations of laws
prohibiting slavery or involuntary servitude. 18 U.S.C. § 1590(a). This provision
contains a civil enforcement section which provides, in pertinent part, that victims
of the crimes articulated in the TVPRA may sue the perpetrators and “recover
damages.” 18 U.S.C. § 1595(a). The statute offers no guidance regarding the
appropriate damage award, and the precedent on this point is limited. See, e.g.,
Aguilar v. Imperial Nurseries, No. 3-07-cv-193, 2008 WL 2572250 (D. Conn. May
28, 2008) (unpublished). The court in Aguilar entered default judgment in favor
of twelve migrant workers for $3,000 per worker, per day for violations of the
TVPRA. See id. at *1-2. Notably, the Aguilar court failed to proffer a reason for
the claimed damage award. Id.
Relying primarily on the motions and briefs filed in Aguilar, Plaintiffs each
seek $3,000 per day for two distinct TVPRA claims: (1) being subjected to forced
labor; and (2) being subjected to trafficking into servitude. (Doc. # 82 at 18.)
Though the Court, accepting the facts alleged in the Complaint as true, agrees
that Defendants’ conduct was extremely reprehensible, neither Aguilar nor
Plaintiffs’ memoranda identify this Court’s authority to award the damages
requested. Moreover, Plaintiffs fail to provide evidence pursuant to which this
Court could reasonably calculate such an award. Because Plaintiffs do not
identify any authority for punitive damages and fail to provide the Court with

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a metric for actual damages, beyond those awarded under the FLSA, the Court
enters a nominal damage award of $1 to each Plaintiff for all alleged TVPRA
claims.3
C.

CWCA CLAIMS
The CWCA provides that the “compensation for labor or service earned,

vested, determinable, and unpaid” at the time of an employee’s discharge are
“due and payable immediately.” Colo. Rev. Stat. § 8-4-109. An employer’s
failure to comply with the statute allows an employee to recover the greater of:
one-hundred and twenty five percent of the employees’ wages (subject to certain
limitations) or ten days’ pay. Colo. Rev. Stat. §§ 8-4-109(3)(b)(I) & (II).
The FLSA does not preempt the CWCA. See Redmond v. Chains, Inc.,
996 P.2d 759, 764 (Colo. App. 2000). Accordingly, Plaintiffs are entitled to
“assert claims for relief under both statutes.” Id. However, Plaintiffs provide
no authority, nor is the Court aware of any, allowing recovery under both.
Therefore, the Court will not permit dual recovery but, instead, will allow recovery
under the FLSA, which provides Plaintiffs with a greater damage award.

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Plaintiffs attempt to bootstrap their TVPRA damage award to their common law tort
claims for false arrest and false imprisonment. (See Doc. # 94 at 7-8.) These claims,
however, suffer from the same deficiencies as the TVPRA claim. That is, Plaintiffs’
argument is unconvincing because it fails to articulate concrete damages based on
those claims. (Id.)
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D.

REMAINING CLAIMS
Plaintiffs’ First Amended Complaint includes additional claims under the

Colorado Labor Code,4 Colo. Rev. Stat. § 8-2-101, et seq., and common law
claims for false imprisonment and outrageous conduct. (Doc. # 54, ¶¶ 120-138.)
Plaintiffs submitted no affidavits or other appropriate evidence of damages
beyond those relating to lost wages. Unfortunately, as much as the Court would
like to award additional compensation for the intangible damages suffered by
Plaintiffs, the Court has no evidence before it pursuant to which it can do so.
See Craighead, 176 Fed. Appx. at 925 (noting that damages in the default
judgment context must be proven); Flaks v. Koegel, 504 F.2d 702, 707 (2d
Cir.1974) (“While a default judgment constitutes an admission of liability, the
quantum of damages remains to be established by proof unless the amount
is liquidated or susceptible of mathematical computation.”).
IV. CONCLUSION
Based on the preceding analysis, Defendants Alejo Susano and Wiley
Innovations Construction Corp. are jointly and severally liable to Plaintiffs.
Accordingly, it is ORDERED that:
1. Plaintiff Pedro Gregorio Rafael is entitled to $3,994 in damages from
Defendants.

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In their briefing, Plaintiffs conflate the Colorado Labor Code with the CWCA, citing
§ 8-4-109 of the CWCA but referring to it as “the Colorado Labor Code.” (Doc. # 82
at 20.)
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2. Plaintiff Jose Juan Francisco is entitled to $7,991 in damages from
Defendants.
3. Plaintiff Vincio Gonzalez is entitled to $7,991 in damages from
Defendants.
4. Plaintiff Jose Juarez Ramirez is entitled to $3,286 in damages from
Defendants.
IT IS FURTHER ORDERED that Plaintiffs are entitled to reasonable
attorneys’ fees5 and are, therefore, permitted to submit within fourteen days of
the entry of judgment a motion and supporting documentation for reasonable
attorneys’ fees. Such motion shall comply with the requirements set forth in
Fed. R. Civ. P. 54(d)(2) and D.C.COLO.LCivR 54.3.
IT IS FURTHER ORDERED that Plaintiffs shall have their costs by the
filling of a Bill of Costs with the Clerk of the Court within ten days of the entry
of judgment.
IT IS FURTHER ORDERED that the caption on all subsequent filings in
this matter shall reflect the proper parties, as set forth in the caption above.
DATED: November

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, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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An award of Attorneys’ fees is mandatory under the FLSA. See 29 U.S.C. § 216(b).
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