Martinez et al v. Young & Son Remodeling, LLC et al

Filing 67

RULING granting 41 MOTION for Prejudgment Remedy by Concepcion Garcia, Jose Hernandez, Jorge Lopez, Rigoberto Martinez, Andres Perez in the amount of $15,000.00. Signed by Judge Holly B. Fitzsimmons on 4/2/13. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RIGOBERTO MARTINEZ,
ANDRES PEREZ, JORGE LOPEZ,
CONCEPCION GARCIA and
JOSE HERNANDEZ

v.
YOUNG & SON REMODELING, LLC,
and DOUGLAS YOUNG

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CIV. NO. 3:12CV1090 (WWE)

RULING ON PLAINTIFF'S APPLICATION
FOR PREJUDGMENT REMEDY
Rigoberto Martinez, Andres Perez, Jorge Lopez, Concepcion
Garcia, and Jose Hernandez (collectively “plaintiffs”), a group
of five laborers, bring this action to recover unpaid wages and
damages for violations of the minimum wage and overtime wage
provisions of the federal Fair Labor Standards Act, (“FLSA”) 29
U.S.C. §203 et seq., and of Connecticut’s minimum wage and
overtime wage provisions, Conn. Gen. Stat. §31-58 et seq.

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[Doc.

#1; Doc. #41 at 1]. Defendants are Young & Son Remodeling, LLC,
and Douglas Young, managing member of Young & Son Remodeling,
LLC (collectively “defendants”). [Doc. #1]. Plaintiffs seek
double their unpaid wages pursuant to the FLSA and Conn. Gen.
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By complaint dated July 26, 2012, plaintiffs allege at Count
One: FLSA minimum wage violation, 28 U.S.C. §206; Count Two:
Connecticut minimum wage violations, Conn. Gen. Stat. §31-68;
Count Three: FLSA overtime violations, 28 U.S.C. §207; Count
Four: Connecticut Overtime Violations, Conn. Gen. Stat. §31-76c;
Count Five: Conn. Gen. Stat. §31-72 Claim for Unpaid Wages.
[Doc. #1].
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Stat. §31-72, and their reasonable attorney’s fees and costs
pursuant to both the federal and state laws.
Plaintiffs move for a prejudgment remedy (“PJR”) and
request that the Court issue an order attaching the property and
assets of the defendants in the amount of fifteen thousand
dollars ($15,000.00). [Doc. #41].

The parties agreed that the

application could be decided on the papers and waived a hearing
and oral argument. [Doc. #61]. The Court entered an order on
February 25, 2013, prohibiting defendants from selling,
encumbering or transferring any real property without prior
notice to the Court. Defendants were given leave to expend
company funds in the ordinary course of business. See Doc. #60.
In support of their application, plaintiffs filed the
Affidavits of Rigoberto Martinez, Andres Perez, Jorge Lopez,
Concepcion Garcia, and Jose Hernandez. [Doc. #41]. In response,
defendants provided the Affidavit of Douglas Young. [Doc. #631].

PROBABLE CAUSE STANDARD
To grant a prejudgment remedy ("PJR") of attachment, the
court must make a finding of "probable cause." Connecticut
General Statutes § 52-278c(a)(2) requires that the application
include:
An affidavit sworn to by the plaintiff or
any competent affiant setting forth a
statement of facts sufficient to show that
there is probable cause that a judgment in
the amount of the prejudgment remedy sought,
or in an amount greater than the amount of
the prejudgment remedy sought, taking into
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account any known defenses, counterclaims or
set-offs, will be rendered in the matter in
favor of the plaintiff.
Connecticut General Statute §52-278d provides that a PJR hearing
is limited to a determination of "whether or not there is
probable cause that a judgment in the amount of the prejudgment
remedy sought, taking into account any defenses, counterclaims
or set-offs, will be rendered in the matter in favor of the
plaintiff."
"Probable cause," in the context of a prejudgment remedy,
has been defined by Connecticut courts as "a bona fide belief in
the existence of the facts essential under the law for the
action and such as would warrant a man of ordinary caution,
prudence and judgment, under the circumstances, in entertaining
it."

Three S. Dev. Co. v. Santore, 193 Conn. 174, 175 (1984)

(quotation marks and citation omitted).
In other words, in addressing PJR applications, the "trial
court's function is to determine whether there is probable cause
to believe that a judgment will be rendered in favor of the
plaintiff in a trial on the merits." Calfee v. Usman, 224 Conn.
29, 36-37 (1992) (citation omitted).

A probable cause hearing

for the issuance of a prejudgment remedy "is not contemplated to
be a full scale trial on the merits of the plaintiff's claim."
Id. at 37.

The plaintiff need only establish that "there is

probable cause to sustain the validity of the claim." Id.
Probable cause "is a flexible common sense standard.

It does

not demand that a belief be correct or more likely true than

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false." New England Land Co. v. DeMarkey, 213 Conn. 612, 620
(1990) (citation omitted).
After a hearing, the Court considers “not only the validity
of the plaintiff’s claim but also the amount that is being
sought.” Calfee, 224 Conn. at 38.

The Court will make a

determination of how much of the defendant’s property may
properly be attached in order to safeguard the collectibility of
a potential future judgment in favor of the plaintiff.” Calfee,
224 Conn. at 39. "[D]amages need not be established with
precision but only on the basis of evidence yielding a fair and
reasonable estimate." Burkert v. Petrol Plus of Naugatuck, Inc.,
5 Conn. App. 296, 301 (1985) (citation omitted).
"[T]he Court must evaluate not only the plaintiff's claim
but also any defenses raised by the defendant."

Haxhi v. Moss,

25 Conn. App. 16, 20 (1991) (citation omitted).

FINDINGS
Based on the affidavits, the undisputed facts are as
follows.
Plaintiffs aver that defendants employed them and agreed to
pay them at the rate of $12.00 an hour to perform work,
including roofing work, at various times from March 2009 through
December 2011. The defendants agreed to pay each of the
plaintiffs at the rate of $12.00 per hour for his work. The
plaintiffs were each and all non-exempt employees within the
meaning of the FLSA and Connecticut law, and as such were
entitled to be paid one and one-half times their regular hourly
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rate of pay for each hour worked in excess of forty hours in a
one week period. [Doc. 41-2-41-6].
In the final two (2) weeks of their employment by the
defendants in December 2011, plaintiffs worked the following
hours. [Doc. 41-2-41-6].
Rigoberto Martinez

81.8 hours

Andres Perez

101.6 hours

Jorge Lopez

94.5 hours

Concepcion Garcia

88.6 hours

Jose Hernandez

101.6 hours

In the final two weeks of their employment by the
defendants, the plaintiffs earned the following amounts in
wages.

[Doc. 41-2-41-6].

Rigoberto Martinez

$

992.40

Andres Perez

$1,348.80

Jorge Lopez

$1,221.00

Concepcion Garcia

$1,042.80

Jose Hernandez

$1,348.80

TOTAL UNPAID WAGES

$5,953.80

It is uncontested that plaintiffs worked these hours and
that defendants have not paid plaintiffs the wages due them.
Defendants offered no employment records or set-off calculation
regarding unpaid wages. Defendants did not challenge plaintiffs’
PJR request for attorneys’ fees of $10,000.

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Defendant Douglas Young
Defendants offer two arguments in opposition to plaintiffs’
PJR application. First, they argue that because defendant Young
is a member of a limited liability company, he is not a proper
party in this litigation and plaintiffs have not met the legal
standard for piercing the corporate veil of the LLC.

In his

affidavit, Douglas Young avers that although he is a member of
Young & Son Remodeling, LLC, the LLC was solely responsible for
the contracting, hiring, and employment for all construction
projects. Young avers that he did not personally contract, hire
or employ any of the named plaintiffs in his case.

Finally,

Young avers that the LLC contracted with plaintiffs as
independent contractors for construction projects. [Doc. 63-1
¶¶3-7].

Douglas Young argues that plaintiffs cannot meet either

of the two exceptions for disregarding the corporate shield and
thus, the PJR cannot attach to the individual defendant Young.
[Doc. #63 at 6].
The Court finds that under both the FLSA and Connecticut
wage laws, Douglas Young is proper party to this litigation.
It is well established that a corporate officer may be held
individually liable under the FLSA as an “employer.”

Under the

FLSA, the term “employer” is defined as “any person acting
directly or indirectly in the interest of an employer in
relation to an employee . . . .”

29 U.S.C. §203(d).

“The

overwhelming weight of authority is that a corporate officer
with operational control of a corporation’s covered enterprise
is an employer along with the corporation, jointly and severally
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liable under the FLSA for unpaid wages. Personal liability has
been found even against a corporate officer who lacks an
ownership interest in the corporation, or has a minimal
ownership interest.”

Donovan v Agnew, 712 F.2d 1509, 1511 (1st

Cir. 1983) (citations omitted). See, Dole v. Lombardi
Enterprises, Inc., 761 F. Supp. 233, 237 (D. Conn. 1991)
(“individuals who control or operate a business and act directly
upon employees are employers under the Act.”) (citing Donovan,
712 F.2d at 1510-14 and Schultz v. Mack Farland & Sons Roofing,
413 F.2d 1296, 1299-1301 (5th Cir. 1969).
The Connecticut wage laws define “employer” in a similarly
broad fashion.
“Employer” means any owner or any person, partnership,
corporation, limited liability company or association
of persons acting directly as, or in behalf of, or in
the interest of the employer. . . .
Conn. Gen. Stat. §31-58(e).
“Employer” includes any individual, partnership,
association, joint stock company, trust,
corporation, the administrator or executor of the
estate of a deceased person, the conservator of
the estate of an incompetent, or the receiver,
trustee, successor or assignee of any of the
same, employing any person, including the state
and any political subdivision thereof;
Conn. Gen. Stat. §31-71(a).

The Court agrees.

Interpreting these statutory definitions of the term
“employer,” the Connecticut Supreme Court stated that “an
individual personally can be liable as an employer pursuant
to §31-72, notwithstanding the fact that a corporation is
also an employer of the claimant, if the individual is the
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ultimate responsible authority to set the hours of
employment and to pay wages and is the specific cause of
the wage violation.”

Butler ex rel Skidomre v. Hartford

Technical Institute, Inc., 243 Conn 454, 463-64 (1997).
Here, Young is the sole principal in the LLC. Although
Young avers that he did not “personally” contract, hire or
employ any of the plaintiff, he has not identified any
other agent of the LLC who held any position of
responsibility for these or any other managerial functions.
[Doc. #63-1, Young Aff. ¶6]. Nevertheless, Young asserted
in the affidavit that he had knowledge regarding the nature
of the employment relationship between the LLC and the
plaintiffs and that they were engaged as independent
contractors.

[Doc. #63-1, Young Aff. ¶7].

Plaintiffs

provided affidavits in which they each aver that both Young
& Son Remodeling, LLC, and Douglas Young hired them and
offered to pay them wages at hourly rates. [Doc. #41, Ex.
1-5].
Plaintiffs assert that defendants mistakenly believe
that Douglas Young is being sued in his capacity as a
member of Young & Son Remodeling, LLC. Rather, plaintiff is
alleging that Young is an “employer” as that term is
defined under the FLSA, 29 U.S.C. §203(d), and Conn. Gen.
Stat. §§31-58€ and 31-71(a). On the current record, Douglas
Young is the sole member of the LLC and, as the only
individual who has been identified as possessing any

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authority to make any decisions regarding the retention of
the plaintiffs to perform work, Young is an “”employer.
Applying the appropriate standard for a PJR, plaintiffs
have established probable cause that Young meets the
definition of “employer” for purposes of the FLSA and the
Connecticut wage laws.

Defendant Young & Son Remodeling, LLC
Second, defendants argue that the plaintiffs were
independent contractors and were therefore not employees of
Young & Son Remodeling, LLC, so that they are therefore not able
to claim relief for violations of their rights under federal and
state wage and hour laws.
The FLSA defines an “employee” to include “any individual
employed by an employer,” it defines the verb “employ”
expansively to mean “suffer or permit to work.”

Nationwide Mut.

Ins. Co. v. Darden, 503 U.S. 318, 326 (1992) (citing 29 U.S.C.
§§203(e)(g)). The United Supreme Court has stated that these
broad definitions are “comprehensive enough to require its
application to many persons and working relationships, which
prior to [the FLSA], were not deemed to fall within an employeremployee category.”

Walling v. Portland Terminal Co., 330 U.S.

148, 150-51 (1947).
Recognizing the expansive nature of the FLSA’s
definitional scope and the remedial purpose underlying
the legislation, courts construing this statute have
adopted the ‘economic realities’ test under which
individuals are considered employees if as a matter of

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economic reality they are dependent upon the business
to which they render service.
Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir. 1993) (quoting
in part, Bartels v. Birminham, 332 U.S. 126, 130 (1947)
(quotation marks omitted).
The Second Circuit has identified five factors in
determining whether individuals are “employees” or “independent
contractors” for purposes of the FLSA. These factors, derived
from United States v. Silk, 331 U.S. 704 (1947), and known as
the “economic reality test,” include,
1. The degree of control exercised by the employer over the
workers,
2. The workers’ opportunity for profit or loss and their
investment in the business,
3. The degree of skill and independent initiative required
to perform the work,
4. The permanence of duration of the working relationship,
and
5. The extent to which the work is an integral part of the
employer’s business.
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir.
1988) (citations omitted).

“No one of these factors is

dispositive; rather, the test is based on a totality of the
circumstances. The ultimate concern is whether, as a matter of
economic reality, the workers depend upon someone else's
business for the opportunity to render service or are in
business for themselves” Id.
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The record before the Court on the PJR application is
limited. In support of their PJR application, plaintiffs aver
that they were hired on an hourly basis at an hourly rate of
$12.00 per hour. [Doc. #41, Ex 1-5]. Defendants have not denied
these facts. Rather, Douglas Young avers that the plaintiffs
were hired as “independent contractors” while maintaining that
he did not “personally contract, hire or employ any of the named
plaintiffs” and defendants raise this contention as a special
defense. [Young Aff. ¶6; Doc. #45].

Defendants have offered no

case law in support of their argument.
The rule that exemptions to coverage by the FLSA are
narrowly construed, with the burden placed on the employer to
show that employees are exempt from such coverage, supports the
conclusion that, on the PJR application, plaintiffs have met the
probable cause standard that they were employees of the LLC for
purposes of the FLSA. See Arnold v. Ben Kanowsky, Inc., 361 U.S.
388, 392 (1960) (Exemptions to coverage by the FLSA “are to be
narrowly construed against the employers seeking to assert
them.”).
Under Connecticut law, the ABC test is used to determine
whether a person is an independent contractor or an employee.
Under the ABC test any service provided by an
individual is considered employment, unless and until
the recipient of the services provided has sustained
the burden of showing to the satisfaction of the
administrator that (I) such individual has been and
will continue to be free from control and direction in
connection with the performance of such service, both
under his contract for the performance of service and
in fact; and (II) such service is performed either
outside the usual course of the business for which the
service is performed or is performed outside of all
the places of business of the enterprise for which the
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service is performed; and (III) such individual is
customarily engaged in an independently established
trade occupation, profession or business of the same
nature as that involved in the service performed . . .
.
Latimer v. Administrator, 216 Conn. 237, 247 (1990). (Internal
quotation marks omitted.) The ABC test is conjunctive; all parts
must be satisfied to exclude an employer under the Act. Id.
(citation omitted).
In opposition to the PJR, defendants have not cited the ABC
test, nor have they met their burden. Accordingly, on this
record, plaintiffs have made the probable cause showing that
they are employees under Connecticut wage laws.

AMOUNT OF THE PJR ATTACHMENT
Plaintiffs seek damages in the amount of unpaid regular and
overtime wages, double damages as provided by law, and the
payment of reasonable attorneys’ fees and costs. [Doc. 41-2-416]. For purposes of the PJR, plaintiffs are seeking $15,000
representing unpaid wages, and estimated attorneys’ fees in the
amount of $10,000. [Doc. #41 at 6]. Defendants did not challenge
this estimate.
Based on the evidence presented, the Court finds
probable cause to believe that a judgment in the amount of at
least $15,000.00 will be rendered in favor of plaintiffs in a
trial on the merits. Calfee v. Usman, 224 Conn. 29, 36-37
(1992); see Conn. Gen. Stat. §52-278c(a)(2).

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Rigoberto Martinez

$

992.40

Andres Perez

$1,348.80

Jorge Lopez

$1,221.00

Concepcion Garcia

$1,042.80

Jose Hernandez

$1,348.80

TOTAL UNPAID WAGES

$ 5,953.80

ESTIMATED ATTORNEYS’ FEES

$10,000.00

TOTAL PJR SOUGHT

$15,000.00

CONCLUSION
Based on the foregoing, plaintiff‛s Application for a
Prejudgment Remedy [Doc. #41] is GRANTED in the amount of
$15,000.00 against defendants Young & Son Remodeling, LLC, and
Douglas Young.
This is not a recommended ruling.

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This is a ruling on an

Application for Prejudgment Remedy which is reviewable pursuant
to the “clearly erroneous” statutory standard of review. 28
U.S.C. §636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L.
Civ. R. 72.2. As such, it is an order of the Court unless

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See Aetna Life Ins. Co. v. Toothsavers Dental Serv., No. 96 CV
570 (GLG), 1997 WL 102453 (D. Conn. Feb. 4, 1997) (finding
referral to Magistrate Judge "for the purpose of a hearing on
prejudgment remedy" was a request for a determination of the
prejudgment remedy pursuant to 28 U.S.C. §636(b)(1)(A) and was
not a recommended ruling effective only upon a District Court
Judge’s review and adoption, pursuant to 28 U.S.C.
§636(b)(1)(B)).
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reversed or modified by the district judge upon motion timely
made.
Dated at Bridgeport this 2nd day of April 2013.

______/s/___________________
HOLLY B. FITZSIMMONS

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