ANDRADE ROMERO et al v. RBS CONSTRUCTION CORPORATION, INC. et al

Filing 53

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 2/22/2022. (lcegs1)

Case 1:18-cv-00179-EGS Document 53 Filed 02/22/22 Page 1 of 54

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSE ARMANDO ANDRADE
ROMERO, et al.
Plaintiffs,

Civ. Action No. 18-00179 (EGS)

v.
RBS CONSTRUCTION CORP., et
al.,
Defendants.
MEMORANDUM OPINION
I.

Introduction
Plaintiffs Jose Armando Andrade Romero and Victorino

Marroquin (collectively “Plaintiffs”) bring this case against
Defendants RBS Construction Corp., RBS Group Inc., RBS Group
Investments LLC, Albertino Silveira, and Ellen Lima
(collectively “Defendants”), alleging that Defendants failed to
properly compensate them for hours worked and for overtime
earned. See generally Compl., ECF No. 1. The case arises under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201; the
District of Columbia Payment and Collection of Wages Law
(“DCPCWL”), D.C. Code § 32-1301; and the District of Columbia
Minimum Wage Revision Act (“DCMWRA”), D.C. Code § 32-1001.
Defendants have filed a motion seeking summary judgment, see
Defs.’ Mem. of P. & A. in Supp. of Mot. for Summ. J. (“Defs.’

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MSJ”), ECF No. 38; in response to which Plaintiffs have filed a
cross-motion for partial summary Judgment, see Pls.’ Cross-Mot.
for Partial Summ. J. (“Pls.’ XMSJ”), ECF No. 42. In addition,
Defendants move to strike exhibits filed by Plaintiffs in their
reply in support of their cross-motion. See Defs.’ Mot. to
Strike, ECF No. 48.
Upon consideration of the motions, responses, and the
replies thereto, the applicable law and regulations, the entire
record and the materials cited therein, the Court GRANTS IN PART
and DENIES IN PART the Defendants’ Motion for Summary Judgment,
ECF No. 38; GRANTS IN PART and DENIES IN PART Plaintiffs’ CrossMotion for Summary Judgment, ECF No. 42; and GRANTS IN PART and
DENIES IN PART the Motion to Strike, ECF No. 48.
II.

Factual and Procedural Background

This case arises out of Defendants’ alleged failure to
properly compensate Plaintiffs for hours worked and for overtime
earned under the FLSA, DCPCWL, and DCMWRA. See generally Compl.
ECF No. 1. Defendant RBS provides remodeling and general
construction services to residential homeowners in Maryland and
the District of Columbia (“D.C.”). See id. ¶ 4; Defs.’ Counter
Stmt. Of Material Facts (“DSMF”), ECF No. 44-1 ¶ 10. Plaintiffs
allege that Defendants Mr. Silveira and Ms. Lima are Officers,
Directors, and owners or RBS, and use RBS to perform
construction and remodeling services at properties in D.C. and
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Maryland which they purchase, renovate and resell. See Compl.,
ECF No. 1 ¶¶ 4-5; DSMF, ECF No. 44-1 ¶¶ 6-12. Defendants admit
that Ms. Lima is listed as an owner and director of RBS Group
and RBS Construction Corp., and that she is officially the Vice
President of RBS Group, see id. ¶¶ 1, 3, 11; however, they state
that Ms. Lima, the spouse of Defendant Silveira, is a full-time
real estate agent, and is not involved in Mr. Silveira’s
business, “except for occasionally writing a check for Defendant
Silveira or receiving work hours from workers.” Defs.’ MSJ, ECF
No. 38 at 7. 1
Plaintiffs allege that RBS, which in incorporated in
Maryland, meets the definition of “Enterprise Engaged in
Commerce” under 29 U.S.C. § 203 (s)(1), because: (1) it either
has employees engaged in commerce or the production of goods for
commerce or it has employees handling, selling, or otherwise
working on goods or materials that have been moved in or
produced for commerce; and (2) it has a gross volume of sales
made or business done of not less than $500,000.00 (exclusive or
excise taxes at the retail level that are separately stated).
Compl., ECF No. 1 ¶ 4. Defendants counter that the gross annual

When citing to electronic filings throughout this Memorandum
Opinion, the Court generally cites to the ECF header page
number, not the original page number of the filed document. The
exception is deposition testimony, for which the citations are
to the page of the deposition transcript.
1

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revenue of RBS Group Corporation was $204,736.02 in 2016 and
$252,775.05 in 2017, excepting funds received from returned
checks and the sale of Defendants’ home. See Exhibit 1, Silveira
Decl., ECF No. 38-2 ¶ 5. Defendants state that they have never
had more than $500,000 per year in gross sales. Id. ¶ 6.
Plaintiff Andrade, a resident of D.C., and Plaintiff
Marroquin, a resident of Maryland, were both employed by
Defendants as laborers/carpenters. Compl., ECF No. 1 ¶¶ 7-8;
DSMF, ECF No. 44-1 ¶ 44. Plaintiffs allege they performed home
remodeling services for the Defendants including drywall and
simple carpentry, pouring concrete, and removing debris and old
drywall from properties. Id. Plaintiffs state that Mr. Andrade
was employed full-time from approximately June 2016 to January
2017, and part-time until December 2017, see DSMF, ECF No. 44-1
¶ 14; while Mr. Marroquin was employed from approximately July
2016 to October 2016, id. ¶ 12. Defendants, however, contend
that as per Mr. Andrade’s own Answers to Interrogatories, he
worked from June 2016 to about January 1, 2017, and then between
October 2017 and December 2017. See DSMF, ECF No. 44-1 ¶ 14. As
to Mr. Marroquin, Defendants assert that he testified he did not
recall the exact date he began working between July 20, 2016 and

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July 27, 2016. See Transcript of Victorino C. Marroquin
(“Marroquin Dep.”), ECF No. 44-3 at 47-48. 2
Mr. Andrade states he was paid an hourly rate of $13 for
his first two months of work, and then $14 per hour. See Exhibit
H, Pl. Jose Armando Andrade’s Answers and Amended Objections to
Defendant RBS Construction Corp.’s First Set of Interrogatories
(“Andrade Interrogatories”), ECF No. 42-9 at 15-16. However,
Defendant Silveira testified that Plaintiff Andrade started at
$12 per hour and then received a raise to $13 per hour.
Deposition of Albertino Assis Silveira (“Silveira Dep.”), ECF
No. 44-6 at 70; 187. Mr. Marroquin’s wage is similarly disputed,
with Plaintiffs arguing he was paid $14 per hour, see DSMF, ECF
No. 44-1 ¶ 106; and Defendants countering that he was paid $13
per hour. See Defs.’ Opp’n, ECF No. 44 at 28.
Plaintiffs allege that they spent more than half their time
working for the Defendants at sites located in D.C., and
consistently worked more than forty hours per week. Compl., ECF
No. 1 ¶¶ 7-8. They state that they worked between five and six
days per week, and twelve to fifteen hours per day, see DSMF,
ECF No. 44-1 ¶ 108; although Defendants dispute the evidence
Plaintiffs provide, see id. Plaintiffs also assert that
Defendants would inform them each day about the location of the
This argument is splitting hairs, since July 24, 2016, the date
used by Plaintiffs, is midway between July 20 and July 27.
2

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day’s job site, provide them with a schedule of hours, and
instruct them on their specific duties. Compl., ECF No. 1 ¶ 10.
They state that Defendants provided them with the construction
materials needed or instructed them to pick up the materials and
transport them to the work site. Id. ¶ 11; see also DSMF, ECF
No. 44-1 ¶ 69. They add that Defendants would inspect the job
sites daily or ask Plaintiffs to send photos of the completed
work. See Compl., ECF No. 1 ¶ 11. They also state that
Defendants did not keep track of the hours that Plaintiffs
worked each day, which Defendants admit. Id. ¶ 12; DSMF, ECF No.
1 ¶ 48. The Defendants, however, refute Ms. Lima’s involvement
in managing or overseeing any of the work. See Defs.’ MSJ, ECF
No. 38 at 7.
Plaintiffs allege they were not paid on any fixed schedule,
nor paid in relation to the hourly work wage they were promised.
Compl., ECF No. 1 ¶ 13. Instead, Plaintiffs state they were paid
sporadically in cash and usually after having complained about
not being compensated for hours worked. Id. Defendants do not
dispute the cash payments. See Defs.’ MSJ, ECF No. 38 at 8;
DSMF, ECF No. 41-1 ¶¶ 56, 73. Plaintiffs allege that, based on
records Mr. Andrade kept in his notebook, he was paid
approximately $8,300 during the time period which is the subject
of this Complaint. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No.
41-1 ¶ 59. Plaintiffs claim that Mr. Marroquin was paid
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approximately $2,500, although they provide no written records
in support. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No. 41-1 ¶
60. Defendants challenge the amount Plaintiffs state they were
paid, arguing that Plaintiffs do not present a valid basis for
their calculations. See DSMF, ECF No. 44-1 ¶ 59-60, 93. However,
defendants do not have any records of their own as to the
amounts paid. See generally id.
Plaintiffs allege that Defendants: (1) failed to compensate
them for all the regular hours they worked; (2) failed to pay
them at the promised rate for all hours worked; (3) failed to
pay any compensation at all for the hours worked in excess of 40
hours each work week; and (4) failed to comply with the
statutory record-keeping and notice requirements of the DCPCLW
and the DCMWRA. Compl., ECF No. 1 ¶ 8. Specifically, they allege
that Plaintiff Andrade worked approximately 550 hours of
straight time and 438 hours of overtime for which he was never
paid, and Plaintiff Marroquin worked approximately 340 hours of
regular hours and 283 hours of overtime for which he was never
paid. Id. ¶ 16-17; see also Exhibit T, Wage Calculation
Victorino Marroquin (“Marroquin Wage Calculation”), ECF No. 4221; Exhibit U, Jose Andrade Romero Wage Calculation (“Romero
Wage Calculation”), ECF No. 42-22. 3 Defendants, however, argue
The documents provided by Plaintiffs include their respective
handwritten records of the hours and days worked for the
3

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that Plaintiffs can only guess as to what their damages are and
what they were paid. See Defs.’ MSJ, ECF No. 38 at 8-11.
Plaintiffs brought suit in this Court on January 26, 2018.
Defendants subsequently filed a motion for summary judgment, see
Defs.’ MSJ, ECF No. 38; in response to which Plaintiffs filed a
cross-motion for partial summary judgment, see Pls.’ XMSJ, ECF
No. 42. Plaintiff also filed a brief opposing the Defendants’
motion. See Pls.’ Mem. of P. & A. in Opp’n to Defs.’ Mot. for
Partial Summ. J. and in Supp. of Pls.’ Cross-Mot. for Partial
Summ. J. (“Pls.’ Opp’n”), ECF No. 43. 4 Defendants then filed a
consolidated opposition and reply. See Defs.’ Consolidated Reply
to Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Defs.’ Opp’n to
Pls.’ Cross-Mot. for Partial Summ. J. (“Defs.’ Opp’n”), ECF No.
44. After Plaintiffs filed their own reply, see Pls.’ Reply in
Supp. of Cross-Mot. for Partial Summ. J. (“Pls.’ Reply”), ECF
No. 46; Defendants motioned to strike the exhibits submitted in
Plaintiff’s reply, see Defs.’ Mot. to Strike, ECF No. 48.
Plaintiffs opposed, see Pls.’ Opp’n to Mot. to Strike (“Pls.’

Defendants. See Marroquin Wage Calculation, ECF No. 42-21 at 611; Andrade Wage Calculation, ECF No. 42-22 at 11-20. Mr. Romero
also recorded the payments he received. See Exhibit U, ECF No.
42-22 at 20. Mr. Marroquin, however, provides no basis for the
hours for which he was allegedly paid, other than his testimony.
See DSMF, ECF No. 44-1 ¶ 60.
This brief is identical to the Plaintiffs’ cross motion for
summary judgment, ECF No. 42.
4

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Opp’n to MTS”), ECF No. 50; and Defendants replied, see Defs.’
Reply to Pls.’ Opp’n to Defs.’ Mot. to Strike (“Defs.’ Reply to
MTS”), ECF No. 51. The motions are ripe and ready for
adjudication.
III. Standard of Review
A. Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary
judgment motions must be granted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party
bears the initial burden “of informing the district court of the
basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be
discharged by ‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325.
In evaluating a summary judgment motion, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255
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(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59
(1970)). Summary judgment turns on “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Id. at 251-52. “[I]f the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party”–and thus a “genuine” dispute over a material fact exists–
then summary judgment is not available. Id. at 248.
For purposes of summary judgment, materiality is determined
by the substantive law of the action. Id. Accordingly, the
substantive law identifies “which facts are critical and which
facts are irrelevant,” and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.” Id.
Similarly, the applicable substantive evidentiary standards of
the action guide “whether a given factual dispute requires
submission to a jury.” Id. at 255. The Court’s role at the
summary judgment stage “is not . . . to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Id. at 249.
1. Determining Employer Status Under the FLSA
Courts in this District use a four-part test to determine
whether an individual is an employer under the FLSA: does the
putative employer “1) have hiring and firing authority, 2)

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supervise and schedule employee work hours or conditions of
employment, 3) determine the rate and method of payment, and 4)
maintain employment records?” Saint-Jean v. District of Columbia
Public Schools Div. of Transp., 815 F. Supp. 2d 1, 4 (D.D.C.
2011) (citing Morrison v. Int'l Programs Consortium, Inc., 253
F.3d 5, 11 (D.C. Cir. 2001)). “No one factor standing alone is
dispositive and courts are directed to look at the totality of
the circumstances and consider any relevant evidence.” Morrison,
253 F.3d at 11. Corporate officers and owners are individually
liable under the FLSA (and therefore D.C. wage laws) when they
engage in a certain level of operational control. See Wilson v.
Hunam Inn, Inc., 126 F. Supp. 3d 1, 6 (D.D.C. 2015) (“Corporate
officers are liable as employers under the FLSA as long as the
officer acts, or has the power to act, on behalf of the
corporation vis-à-vis its employees.”). “To determine whether a
corporate officer has operational control, the [c]ourt looks at
the factors [of the economic reality test] plus the ownership
interest of the corporate officer.” Orellana v. NBSB Inc., 332
F. Supp. 3d 252, 263 (D.D.C. 2018). “A Defendant’s ownership
interest in an employer corporation, while not dispositive of
employer status under FLSA, certainly raises a plausible
inference that the individual possessed the requisite
“operational control” over the covered entity.” Wilson, 126 F.
Supp. 3d at 7-8. Courts in other circuits have emphasized that
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financial control over a corporation is a significant factor in
determining whether an individual meets the statutory definition
of an employer. See, e.g., Donovan v. Grim Hotel, 747 F.2d 966,
972 (5th Cir. 1984)(imposing liability on a majority shareholder
who “held [corporations'] purse strings and guided their
policies”); Dole v. Elliott Travel, 942 F.2d 962, 966 (6th Cir.
1991) (finding that the majority owner “controlled the purse
strings”); Manning v. Boston Medical Center Corp., 725 F.3d 34,
48 (1st Cir. 2013)(internal citation and quotation marks
omitted)(“[T]he case law's emphasis on ownership and financial
control is sensible because these factors suggest a strong
degree of authority over the corporation's finances and, as a
corollary, the ability to caus[e] the corporation to
undercompensate employees and to prefer the payment of other
obligations and/or the retention of profits.”).
2. Determining Coverage Under the FLSA
To claim relief under the FLSA, an employee must first
establish that that his employment relationship is subject to
coverage under the FLSA. Benton v. Laborers' Joint Training
Fund, 121 F. Supp. 3d 41, 49 (D.D.C. 2015). Coverage can be
either: (1) enterprise coverage; or (2) individual coverage.
Tony & Susan Alamo Found., 471 U.S. at 295 n. 8 (1985). A given
employee may have coverage under either or both theories.
Benton, 121 F. Supp. 3d at 49. Plaintiffs bear the burden of

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establishing FLSA coverage. See D.A. Schulte, Inc., v. Gangi,
328 U.S. 108, 120 (1946) (“The burden of proof that rests upon
employees to establish that they are engaged in the production
of goods for commerce must be met by evidence in the record.”).
For individual coverage to apply under the FLSA, the
Plaintiffs must provide evidence that they were: (1) engaged in
commerce; or (2) engaged in the production of goods for
commerce. Benton, 210 F. Supp. 3d at 106 (citing 29 U.S.C. §
207(a)(1)). 5 A plaintiff may show they are “engaged in commerce”
by showing that they are employed in industries that “serve as
the actual instrumentalities and channels of interstate and
foreign commerce,” such as the telephone, transportation, or
shipping industries. Id. Alternately, a plaintiff may show that
are employed in a type of business that “regularly utilize[s]
the channels of interstate and foreign commerce in the course of
their operations,” such as the banking, insurance, or publishing
industries; or by showing that she directly participates in the
actual movement of people or goods in interstate commerce.” Id.
(citing 29 C.F.R. § 776.10). “The fact that all of [an

Since Plaintiffs claim individual coverage under the first
prong, i.e., they allege that they were engaged in commerce,
that is where the Court directs its attention. See Pls.’ XMSJ,
ECF No. 42 at 31.
5

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employer’s] business is not shown to have an interstate
character is not important. The applicability of the [FLSA] is
dependent on the character of the employees' work.” Walling v.
Jacksonville Paper Co., 317 U.S. 564, 571-72 (1943) (citations
omitted). “The test under [the FLSA], to determine whether an
employee is engaged in commerce, is not whether the employee's
activities affect or indirectly relate to interstate commerce
but whether they are actually in or so closely related to the
movement of the commerce as to be a part of it.” McLeod v.
Threlkeld, 319 U.S. 491, 497 (1943). U.S. Department of Labor
regulations address the issue of employees who travel across
state lines for work as follows:
If the employee transports material or
equipment or other persons across State lines
or within a particular State as a part of an
interstate movement, it is clear of course,
that he is engaging in commerce. And as a
general rule, employees who are regularly
engaged in traveling across State lines in the
performance of their duties (as distinguished
from merely going to and from their homes or
lodgings in commuting to a work place) are
engaged in commerce and covered by the Act. On
the other hand, it is equally plain that
an employee who,
in
isolated
or
sporadic
instances, happens to cross a State line in the
course of his employment, which is otherwise
intrastate in character, is not, for that sole
reason, covered by the Act.
29 C.F.R. § 776.12 (footnotes omitted).

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3. Calculating Damages Under the FLSA
The employee has the burden of proving damages under FLSA.
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946),
superseded by statute on other grounds, Portal-to-Portal Act of
1947. “When the employer has kept proper and accurate records
the employee may easily discharge his burden by securing the
production of those records.” Id. However, “where the employer's
records are inaccurate or inadequate and the employee cannot
offer convincing substitutes,” a burden-shifting scheme applies.
Id. Under this scheme, an employee carries his burden to prove
damages and makes out a prima facie case if: (a) “he proves that
he has in fact performed work for which he was improperly
compensated”; and (b) “he produces sufficient evidence to show
the amount and extent of that work as a matter of just and
reasonable inference.” Id. The burden then shifts to the
employer to produce “evidence of the precise amount of work
performed” or to negate “the reasonableness of the inference to
be drawn from the employee's evidence.” Id. at 687-688. “If the
employer fails to produce such evidence, the court may then
award damages to the employee, even though the result be only
approximate.” Id. at 688. A defendant employer is not entitled
to summary judgment on the issue of damages because they
challenge the sufficiency or reasonableness of a plaintiff’s
evidence; rather, such situations present a dispute of material

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fact which require credibility determinations to resolve. See
Escamilla v. Nuyen, 200 F. Supp. 3d 114, 123 (D.D.C. 2016)
(denying summary judgment where defendants presented evidence to
contest reasonableness of plaintiffs estimate of hours worked
per week.); Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 53
(D.D.C. 2006) (holding that summary judgment is not the proper
vehicle to challenge the reasonableness of the employee’s
evidence about hours worked, because such disputes require
credibility determinations and are reserved for the trier of
fact); Zirintusa v. Whitaker, 674 F. Supp. 2d 1, 6 (D.D.C. 2009)
(denying summary judgment where plaintiff produced evidence of
hours worked in the form of her affidavit testimony and a chart
of her estimated hours worked); Batres Guevara v. Ischia, Inc.,
47 F. Supp. 3d 23, 27–28 (D.D.C. 2014) (denying summary judgment
where plaintiffs offered three depositions in support of their
overtime claim and defendant offered five affidavits against
it).
B. Motion to Strike
It is well-established that new issues, arguments, and
evidence “may not be raised for the first time in a reply
brief.” Rollins Envtl. Servs. V. EPA, 937 F.2d 649, 652 n. 2
(D.C. Cir. 1991); see also McBride v. Merrell Dow and
Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C. Cir. 1986) (“We
generally will not entertain arguments omitted from an
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appellant’s opening brief and raised initially in his reply
brief.”); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)
(“[W]here new evidence is presented in a reply to a motion for
summary judgment, the district court should not consider the new
evidence without giving the non-movant an opportunity to
respond.”) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116
(7th Cir. 1990)); BMW of N. Am., LLC v. WIN.IT Am., Inc., No.
CV178826PSGMRWX, 2019 WL 926326, at *7 (C.D. Cal. Jan. 25, 2019)
(declining to consider certified translations of an agreement
produced with a reply brief without giving the opposing party an
opportunity to object or respond). If a court accepts a Reply
containing new evidence and the opposing party has no
opportunity to respond, that court cannot rely on the new
material in deciding a motion for summary judgment. See Beaird
v. Seagate Technology, Inc., 145 F.3d 1159, 1164 (10th Cir.
1998) (“Having accepted the reply brief, the district court in
fact had two permissible courses of action. It could either have
permitted a surreply or, in granting summary judgment for the
movant, it could have refrained from relying on any new material
contained in the reply brief.”).
IV.

Analysis

Defendants make a number of arguments in their motion for
summary judgment. First, they argue that Plaintiffs neither work
for a covered enterprise nor are individually covered under the
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FLSA. See Defs.’ MSJ, ECF No. 38 at 13. Next, they argue that
Ms. Lima is not an employer under the FLSA. Id. at 17. Third,
they contend that Plaintiffs cannot establish their damages by a
just and reasonable inference. Id. at 20. Finally, they argue
that the Court should decline supplemental jurisdiction over any
remaining DC law claims. Id. at 25.
In their cross-motion for summary judgment, Plaintiffs
raise similar issues. First, they argue that Ms. Lima and Mr.
Silveira are individually liable as Plaintiff’s employers under
the FLSA and DC’s own wage laws. Pls.’ XMSJ, ECF No. 42 at 10.
Second, they argue that they have established their damages as a
matter of just and reasonable inference and defendants have no
evidence to dispute their inference. Id. at 23. Finally, they
argue that even if no FLSA claim survives, the Court should
exercise supplemental jurisdiction over the state law claims in
the interest of fairness and judicial economy. Id. at 37. In
their Motion to Strike, Defendants object to the affidavits
submitted by the respective Plaintiffs in their cross-motion for
summary judgment and their reply. See generally Defs.’ MTS, ECF
No. 48. Defendants seek to strike Plaintiffs’ entire Reply to
Defendants’ Counter-Statement of Material Facts (“RSMF”), ECF
No. 47; the Plaintiffs’ respective affidavits, ECF No. 46-1; and
the translator’s declaration as to the affidavits, ECF No. 46-2.
See Defs.’ MTS, ECF NO. 48 at 6. Given the overlapping nature of
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the arguments in Defendants’ motion for summary judgment, and
Plaintiffs’ cross-motion, the Court considers the arguments
together, by each issue raised. First, however, the Court
considers evidentiary challenges posed by the defendants,
including their motion to strike.
A. Admissible Evidence
In their cross-motion for summary judgment, Plaintiffs file
affidavits for Mr. Andrade and Mr. Marroquin respectively, see
ECF Nos. 42-19, 42-20; which defendants oppose as inadmissible
hearsay. See Defs.’ Opp’n, ECF No. 44 at 22. Defendants argue
that the declarations are unreliable because they are in
English, a language Plaintiffs do not speak, and lack an oath
from an interpreter as to the affidavits being translated for
Plaintiffs. Id. at 22-23. Defendants also argue that even if the
affidavits could be properly authenticated and translated, they
are inadmissible because they contradict prior sworn testimony.
Id. at 26. In response, Plaintiffs provide Spanish language
versions of the affidavits, and an affidavit from Ms. Aguilar,
an employee of Plaintiff’s counsel who speaks Spanish and
affirms she read the affidavits to Plaintiffs. See Exhibit A,
ECF No. 46-1; Exhibit B, Affidavit of Maria Aguilar (“Aguilar
Affidavit”), ECF No. 46-2. Plaintiffs also assert that the
affidavits are admissible even if they are hearsay because they
are based on Plaintiffs’ own testimony and are consistent with
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prior testimony. Pls.’ XMSJ, ECF No. 42 at 15-16. Plaintiffs
also put forth a Reply to the Defendants’ Counter-Statement of
Material Facts, see RSMF, ECF No. 47, which contains alternate
citations to testimony in the record (in addition to the
affidavits), and argue that the Court should use the alternate
citations in the reply if it rejects the affidavits. Id. at 16.
Defendants move to strike Plaintiffs entire Reply to the
Defendants’ Counter-Statement of Material Facts, ECF No. 47; the
Plaintiffs’ respective affidavits, ECF No. 46-1; and Ms.
Aguilar’s declaration regarding translation, ECF No. 46-2. See
Defs.’ MTS, ECF No. 48 at 6. Defendants further challenge the
admissibility of Plaintiffs’ handwritten time records, and of
Plaintiffs’ reliance on their own answers to interrogatories to
support factual assertions. ECF No. 44-1 ¶ 2. The Court
considers each of the evidentiary challenges Defendants have
posed in turn.
1. Plaintiff’s Affidavits Are Admissible
In their Motion to Strike, Defendants ask that the Court
strike Plaintiffs’ Spanish affidavits, Ms. Aguilar’s
declaration, and Plaintiffs’ Reply to Defendants’ Counter
Statement of Material Facts in Dispute. See Defs.’ MTS, ECF No.
48 at 5. Defendants challenge the affidavits in a variety of
ways. Defendants contend that because Plaintiffs’ declarations
appear for the first time in a Reply, they have had “no

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opportunity to challenge the accuracy of the translations or the
qualifications of the translator.” Defs.’ MTS, ECF No. 48 at 4.
Plaintiffs also challenge Ms. Aguilar’s competence as a
translator, and thereby her declaration and the Plaintiffs’
declarations. Id. at 6.

Defendants also directly challenge the

contents of the affidavit, arguing that they are inadmissible
because they implicate the sham-affidavit rule and conflict with
prior testimony. See Defs.’ Opp’n, ECF No. 44 at 25. 6 The Court
addresses each of these three objections in turn.
a. Defendants Have Had an Opportunity to
Challenge the New Affidavits
Defendants argue that because the Declarations appear for
the first time in a Reply, they have had no opportunity to
challenge either the accuracy of the translations or the
qualifications of the translator. See Defs.’ MTS, ECF No. 48 at
4. They add that “where Plaintiffs made factual assertions that
cited to the declarations in their statement of facts,
Defendants responded based only on the information on hand at
the time, which did not include these new declarations.” Id.
Defendants assert they have a right to respond to the new

Defendants had previously objected to the affidavits based on a
violation of Federal Rule of Evidence 604, arguing that they are
inadmissible hearsay translations. See Defs.’ Opp’n, ECF No. 44
at 23. However, Plaintiffs then submitted Spanish language
translation along with a translator’s declaration, and
defendants did not renew this argument. See generally Defs.’
MTS, ECF No. 48. The Court therefore finds this argument moot.
6

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declarations and to supplement their Counter-Statement of Facts
to account for the evidence and new citations proffered by the
Plaintiffs. Id. at 5. They add that Plaintiffs have provided no
reason this new evidence was not produced with the initial
motion, and there is little reason to incorporate the new
evidence. Id. Plaintiffs respond that Defendants have failed to
articulate any prejudice they would suffer if the citations are
considered by the Court. See Pls.’ Opp’n to Defs.’ MTS, ECF No.
50 at 3. They state that the Spanish affidavits contain no new
information or facts from the English affidavits submitted in
the Plaintiffs’ cross-motion. Id. They add that the RSMF does
not include any “new evidence” that was not included in the
Plaintiffs’ Counter Statement of Disputed Facts, see ECF No. 48
at 3-4; and that Defendants do not identify any new evidence or
the prejudice it would lead to. The Court is persuaded by
Plaintiffs’ argument.
Where a party has an opportunity to respond to evidence
that may otherwise be objectionable, or does in fact respond,
there is no prejudice to that party and striking such evidence
is not proper. See Phillips v. Mabus, 319 F.R.D. 36, 38 (D.D.C.
2016) (declining to exercise authority to strike late filed
summary judgment motions because there was no prejudice to the
Defendants because they would have an opportunity to respond to
respond to late filed briefs); Campbell v. Natl. R.R. Passenger
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Corp., 311 F. Supp. 3d 281, 318 (D.D.C. 2018) (denying motion to
strike part of reply brief where new arguments were sufficiently
addressed in the motion to strike itself); Parker v. D.C., Civ.
Act. No. 05-0188(RWR), 2006 WL 1442383, at *2 (D.D.C. May 22,
2006) (denying motion to strike untimely reply brief because
there was no prejudice to other party). In the present case,
Defendants have had an opportunity to respond, and indeed, have
responded, in both their joint reply and opposition brief, see
ECF No. 44; and their motion to strike, see ECF No. 48. It is
disingenuous for the Defendants to argue that they have had “no
opportunity to challenge the accuracy of the translations or the
qualifications of the translator,” while proceeding to do
exactly that in their motion to strike. Defendants’ challenges
to the translator, and to the mode of translation, have been
sufficiently addressed in the motion to strike itself. See
infra; cf. Campbell, 311 F. Supp. 3d at 318. Defendants have
also challenged the contents of the new affidavits. See Defs.’
Opp’n, ECF No. 44 at 25.
Nor does the Court see a need for Defendants to either
strike Plaintiffs’ RSMF or to permit Defendants to supplement
their Counter-Statement of Facts for purposes of summary
judgment. The Defendants have already included citations to the
affidavits in their Counter-Statement. See DSMF, ECF No. 44-1 ¶
38. Defendants do not suggest that there are any new details
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presented in the Spanish language versions of the affidavits,
attached to Plaintiff’s reply, see ECF No. 46-1; that would
require additional citations. As to Plaintiffs’ new citations in
their Reply to Defendants’ Counter-Statement, see ECF No. 47;
these citations are not to new evidence but to the existing
summary judgment record in case the Court rejected the
affidavits. The Plaintiffs had included citations for the
affidavits in their Statement of Material Facts Not in Dispute,
see ECF No. 44-28; which pre-dated the reply, see ECF No. 47.
Plaintiffs Reply to Defendants’ Counter-Statement, see ECF No.
47; supplements the affidavit citations with the existing record
in case the affidavits are rejected. As Plaintiffs point out,
the Defendants’ position on this point is particularly strange
given that Defendants do the same thing they accuse the
Plaintiffs of doing in their own reply. See ECF No. 44-2 at ¶¶
8, 10, 12, 17, 22-29, 33, 36, 56, 63, 69, 75 (including new
citations that were not in their original Statement of Material
Facts not in Dispute). The Court concludes that Defendants had
an opportunity to, and indeed did, challenge the affidavits, and
that there is no need to strike the Plaintiffs’ Reply to
Defendants’ Counter-Statement of Material Facts, ECF No. 47; on
the basis of its additional citations.

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b. Ms. Aguilar’s Declaration is Admissible
Defendants argue that the Court lacks sufficient evidence
to conclude that Ms. Aguilar is a “competent translator,” and
therefore should not rely on her declarations or accept the
Plaintiffs’ affidavits. Defs.’ MTS, ECF No. 48 at 6. The
Defendants add that Ms. Aguilar did not act as a translator in
the traditional sense because Google Translate was used to
provide the translation while Ms. Aguilar merely interpreted the
language for Plaintiffs. Id. Plaintiffs respond that Defendants
fail to point to any inaccuracies or inconsistencies in the two
translations and are free to submit them to the scrutiny of
their own interpreter. See Pls.’ Opp’n to Defs.’ MTS, ECF No. 50
at 9. Plaintiffs also state that the affidavits are not clearly
inconsistent with prior testimony. See Pls.’ XMSJ, ECF No. 42 at
16. The Court concludes that Ms. Aguilar’s declaration is
admissible.
Persuasive authority holds that “[i]f the declarant himself
does not speak and read English the party relying on his
English-language declaration must also submit documents
sufficient to establish that he understood what he was signing.”
Sicom S.P.A. v. TRS Inc., 168 F. Supp. 698, 709 (S.D.N.Y. 2016).
Moreover, Federal Rule of Evidence 604 requires that “[a]n
interpreter must be qualified and must give an oath or
affirmation to make a true translation.” Jack v. Trans World

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Airlines, Inc., 854 F.Supp. 654, 659 n.4 (N.D. Cal. 1994)
(striking affidavits from a summary judgment briefing and
holding that “[w]itness testimony translated from a foreign
language must be properly authenticated and any interpretation
must be shown to be an accurate translation done by a competent
translator.” (citing Fed. R. Evid. 604 and 901)). Here, Ms.
Aguilar is a native Spanish speaker, and has stated in her
affidavit that she regularly interprets during client meetings
at Plaintiffs’ counsel’s Firm, even though she is not a
certified translator. See Exhibit B, Aguilar Affidavit, ECF No.
46-2. Plaintiffs have therefore shown she is qualified and have
submitted her affirmation of translation. See Trans World
Airlines, 854 F.Supp. at 659 n.4. The Defendants provide no
legal authority suggesting that the Court needs to be aware of
her education, and have more specifics of her background, to
find her a “competent translator.” Defs.’ MTS, ECF No. 48 at 6.
Nor do Defendants present any case law from within this District
that would prevent Ms. Aguilar’s affidavit from satisfying
Federal Rule of Evidence 604. See generally id.
It is true that other courts have been hesitant of the
reliability of Google Translate. See, e.g., Novelty Textile,
Inc. v. Windsor Fashions, Inc., 2013 WL 1164065 at *3 (C.D.
Cal., Mar. 20, 2013) (“The court notes, first, that a
translation by Google Translate is not sufficiently reliable to
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make it admissible.”). However, those cases are not applicable
here since Ms. Aguilar affirms that she reviewed the English and
Spanish versions of the affidavits to make sure the Google
translation was accurate and read the Spanish affidavits to
Plaintiffs before they were signed. See Exhibit B, Aff. Of Ms.
Aguilar, ECF No. 46-2. The Court therefore concludes that Ms.
Aguilar’s affidavit should not be struck from the record. The
Court cannot find that Plaintiffs’ affidavits are inadmissible
simply by virtue of being interpreted by Ms. Aguilar.
c. The Affidavits Do Not Violate the Sham
Affidavit Rule
The Court turns next to Defendants’ direct objections to
Plaintiffs’ affidavits. The Court addresses each of the alleged
inconsistencies between the affidavits and prior testimony,
which the defendants argue violate the sham affidavit rule. This
rule states that a deponent cannot file a “contradictory postdeposition affidavit in an attempt to fabricate a material issue
of fact and thus preclude the granting of summary judgment.”
Jackson v. Teamsters Local Union, 922, 310 F.R.D. 179, 181
(D.D.C. 2015) (citing Pyramid Securities Ltd. v. IB Resolution,
Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991) (“Where a party
emphatically and wittingly swears to a fact, it bears a heavy
burden–even in the summary judgment context–when it seeks to
jettison its sworn statement.”)). For the doctrine to apply,
“the affidavit must clearly contradict prior sworn testimony,
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rather than clarify confusing or ambiguous testimony, and the
contradiction must lack credible explanation, such as new
evidence.” St. Paul Mercury Ins. Co. v. Capitol Sprinkler
Inspection, Inc., 573 F. Supp. 2d 152, 160-61 (D.D.C. 2008)
(quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch., 814 A.2d
926, 930 (D.C. 2003)). It is insufficient that a subsequent
affidavit elucidates on some “forgotten” fact; the contradiction
must be direct and clear. See Barrett v. Chreky, 634 F. Supp. 2d
33, 37 (D.D.C. 2009).
Defendants first claim that Plaintiff Andrade’s affidavit
testimony about his hourly rate being $13, which he states was
later raised to $14, contradicts his deposition testimony that
the rate was $13 throughout. Defs.’ Opp’n, ECF No. 44 at 26-27.
However, as Plaintiffs point out, in deposition, Defendants
questioned Mr. Andrade about his meeting with Mr. Silveira when
he was first hired and asked if he was promised any specific
amount of money at this meeting, to which Mr. Andrade testified
to $13 per hour. See Transcript of Jose A. Andrade Romero
(“Andrade Dep.”), ECF No. 44-4 at 22-23. This is entirely
consistent with Mr. Andrade’s former testimony as to his
starting wage. Defendants counsel never asked Mr. Andrade if his
hourly rate changed from $13.00. See id. Therefore, the sham
affidavit rule is not implicated. See St. Paul, 573 F. Supp. 2d
at 160-61; see also Barrett, 634 F. Supp. 2d at 37 (finding no
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violation of the sham-affidavit rule because the plaintiff did
not “directly contradict herself” in her supplemental
affidavit). Defendants next argue that Mr. Andrade’s deposition
testimony that he received “about five” payments from Mr.
Silviera contradicts his hand-written notes that he received
only two payments: one of $2,100 from Mr. Zapata and one of
$6,200 from Mr. Cornego, for a total of $8,300. Defs.’ Opp’n,
ECF No. 44 at 27. The question for the Court, however, is not
whether Mr. Andrade’s deposition testimony contradicts his handwritten notes, but instead whether his affidavit contradicts his
prior deposition testimony. Mr. Andrade’s deposition testimony
was that he was paid a total of $8,300, and that he received
individual payments on five separate occasions but could not
recall the precise dates or amount of each payment. ECF No. 4210 at 33-36, 56-60. Mr. Andrade’s affidavit similarly states
that he was paid $ 8,300. See Andrade Affidavit, ECF No. 42-19
¶ 2. There is thus no inconsistency between Mr. Andrade’s
affidavit and his deposition testimony as to the payments he
received. 7

As to the alleged discrepancy between the deposition testimony
and the notebook, the Court is cognizant that Mr. Andrade never
testified that he was paid on just two occasions. See Andrade
Dep., ECF No. 44-4 at 58. Admittedly, Mr. Andrade’s notation in
his handbook suggests he used two inputs to arrive at the total
amount he was paid, i.e., $8,300, see ECF No. 42-22 at 20; and
the Court agrees with Defendants that it is unclear how these
7

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Next, Defendants turn to Mr. Marroquin, and claim that his
“damage calculations are in direct conflict with his testimony,”
because he “repeatedly changed the amount he believed he was
owed, originally stating that he was owed just $8,000, but later
changing it to $10,000.” Defs.’ Opp’n, ECF No. 44 at 28.
Defendants do not explain whether they mean the damage
calculations in Mr. Marroquon’s affidavit, or refer to the
affidavit at all, but the Court gives them the benefit of the
doubt and assumes they mean the $10,355.50 in unpaid wages Mr.
Marroquin references in his affidavit. See Marroquin Affidavit,
ECF No. 42-20 ¶ 4. By Defendant’s own admission, Mr. Marroquin
stated he was owed $10,000 in his deposition. Other than
providing a more precise figure, the Court is unable to see how
the $10,355.50 mentioned in the affidavit is at all inconsistent
with the $10,000 in the deposition. The Court concludes there is
no “direct and clear” contradiction. See Barrett, 634 F. Supp.
2d at 37. 8
two numbers align with the five payments Mr. Andrade states he
received, and whose amounts he cannot recall. See Andrade Dep.,
ECF No. 44-4 at 57-60. However, the Court cannot assume that
this handbook notation means those two inputs represent just two
payments instead of an amalgamation of payments for specific job
sites, for instance. The Court also observes that, contrary to
Defendants’ assertion, see Defs.’ Opp’n, ECF No. 44 at 27; the
notebook does not establish that Mr. Andrade was paid the listed
amounts by Mr. Zapata and Mr. Cornego. See ECF No. 42-22 at 20.
Defendants further argue that Mr. Marroquin contradicted
himself when he testified about his damages in deposition
8

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Defendants also point to an inconsistency between the $14
hourly rate used in the affidavit and mentioned in Mr.
Marroquin’s deposition, in contrast to the $13 hourly rate
mentioned in Plaintiffs' statement of undisputed facts. Compare
Marroquin Dep., ECF No. 44-3 at 28 with Plaintiffs’ Statement of
Material Facts (“PSMF”), ECF No. 42-28, ¶ 45. Plaintiffs explain
this inconsistency as reflecting an error in the Plaintiff’s
Statement of Undisputed Facts, with the correct number being $14
per hour. See Pls.’ XMSJ, ECF No. 42 at 18. As defendants point
out, this in turn creates a conflict with Mr. Silveira’s
testimony that Mr. Marroquin’s hourly rate was $13. See Defs.’
Opp’n, ECF No. 44 at 28. Relevant here, regardless of the error,
there is no inconsistency between the affidavit and the
deposition that would lead to the affidavit being inadmissible.
Finally, defendants take issue with Mr. Marroquin’s damage
calculations, which they argue are inadmissible hearsay because
they rely exclusively on his own declaration and hand-written
notes to support his number of hours worked. See Defs.’ Opp’n,
because he could not provide details about how his damages were
calculated, nor provide a “clear basis” for how he calculated
how much he was paid by defendants. This argument has nothing to
do with a contradiction between the affidavit and deposition
testimony and is therefore not addressed here. The Court is
cognizant, however, that the Mt. Clemens burden shifting
standard applies, as discussed infra, since the employers did
not record employee hours or payments.

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ECF No. 44 at 29. Again, defendants provide no citation, but the
Court assumes they mean the damage calculations referred to in
Mr. Marroquin’s affidavit, see Marroquin Affidavit, ECF No. 4220 ¶ 4; and attached to the Plaintiff’s Cross-Motion, see id. at
3-7. The Court has already addressed the issue of whether these
documents are inadmissible hearsay because they are improperly
translated and authenticated. See supra. The Court focuses here
on the narrower allegation that Mr. Marroquin is using his
declaration to “correct” his previous testimony by providing new
details changing the amount he claimed he was paid. See Defs.’
Opp’n, ECF No. 44 at 29. Confusingly, no citation is provided as
to the new details, and Defendants then state that the handwritten notes referred to in the declaration lack sufficient
detail because they do not list any actual times worked and only
include the total hours worked each day rounded to whole
numbers. Id. The Court’s best interpretation of Defendants’
argument on the narrow issue under consideration is that
Defendants contend Plaintiffs cannot introduce new details as to
the amount paid through the declaration. As the Court has
discussed already, Mr. Marroquin testified he was owed $10,000,
and his declaration states he is owed $10,355.50, a remarkably
similar number. See Marroquin Affidavit, ECF No. 42-20 ¶ 4;
Marroquin Dep., ECF No. 44-3 at 122. Both the calculations used
in Mr. Marroquin’s affidavit and Mr. Marroquin’s deposition
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testimony establish a $14 hourly wage. See Marroquin Affidavit,
ECF No. 42-20 ¶ 4; Marroquin Dep., ECF No. 44-3 at 28. The only
correction Mr. Marroquin makes in his declaration is when he
states he was “mistaken when [he] testified in [his] deposition
that [he] wrote down how much [he] was paid in [his] notebook.”
Marroquin Affidavit, ECF No. 42-20 ¶ 9. This is undoubtedly a
reversal of his testimony that he noted down “the hours and how
much money” he was paid. Marroquin Dep., ECF No. 44-3 at 58-59.
The only explanation offered by the Plaintiffs is that Mr.
Marroquin was “mistaken” and “only wrote down the hours and days
[he] worked for the Defendants.” Marroquin Aff., ECF No. 42-20 ¶
9. The Court does not find this to be a credible explanation.
See St. Paul, 573 F. Supp. 2d at 160-61.
Since Defendants have identified no contradictions in Mr.
Andrade’s affidavit, or in the remainder of Mr. Marroquin’s, the
Court finds the two affidavits to be admissible, and orders
Plaintiffs to file an amended affidavit for Mr. Marroquin
excluding the one paragraph correcting his testimony. The Court
accordingly does not reach Plaintiffs’ argument that it should
consider equivalent testimony or evidence already in the record
in place of the affidavits. See Pls.’ XMSJ, ECF No. 42 at 16.

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2. The Admissibility of Mr. Marroquin’s HandWritten Notes is a Question for Trial
Defendants argue that Mr. Marroquin’s hand-written notes,
which he relies on in his damage calculations, lack sufficient
detail and are inadmissible hearsay. See Defs.’ Opp’n, ECF No.
44 at 29. Defendants take issue with the fact that Mr.
Marroquin’s notes do not list actual times worked and only
include the total hours worked each day. Id. Defendants also
object to the hours being rounded to whole numbers instead of
fractions, and state that Plaintiffs provide no explanation for
this pattern. Id. The Plaintiffs respond by providing several
theories under which the notes could be admitted at trial. See
Pls.’ Reply, ECF No. 46 at 19. At the outset, the Court notes
that because RBS, as the employer, failed to keep proper records
of employees’ hours worked, a burden shifting scheme applies and
the fact that the Mr. Marroquin’s evidence is merely an
approximation is not a bar to recovery. See Mt. Clemens, 382
U.S. at 687, 66 S.Ct 1187. Consequently, it is not significant
that Mr. Marroquin’s records do not list actual times worked
and are rounded instead of in fractions. The Court is also
cognizant that Mr. Marroquin’s damages are not exclusively
based on the hand-written records. As Mr. Marroquin states in
his affidavit, the damages are also based on his deposition
testimony. see Marroquin Affidavit, ECF No. 42-20 ¶ 4. The

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notes therefore do not impact the damage calculations or Mr.
Marroquin’s affidavit, and the Court need not reach the
question of whether the notes are hearsay at summary judgment.
3. Defendants Have Not Presented a Valid Challenge
to the Admissibility of Plaintiffs’
Interrogatory Answers
Defendants also challenge Plaintiffs’ repeated reliance and
citation to their own answers to interrogatories to support
their response to Defendants’ factual assertions. See DSMF, ECF
No. 44-1 at 1-2. Plaintiffs respond that although the answers
are hearsay, they are admissible hearsay. Pls.’ Reply, ECF No.
46 at 20. The Court finds that it need not reach this issue
because Defendants have not presented a valid argument. Federal
Rule 56(e) enumerates “answers to interrogatories” as one of the
forms of evidence that a party may rely on to supports its
position on summary judgment. See Fed. R. Civ. P. 56(e). A party
may offer its own answers to interrogatories in opposition to a
motion for summary judgment if: (1) the answers are based on
personal knowledge of the person supplying the answers; (2) set
forth facts that would be admissible in evidence; and (3)
demonstrate that the person supplying the answers is competent.
Brand v. Westall, CIV. A. 94-0312 DAR, 1995 WL 235579, at *4
(D.D.C. 1995) (declining to consider interrogatory answers
because they were “nothing more than a recitation of theories
and conclusions” and not based on personal knowledge).
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Defendants, citing to cases from other districts, state
that “[a]nswers to interrogatories cannot be relied upon to
support factual positions on summary judgment, as Courts have
held that a party’s own answers to interrogatories are
inadmissible hearsay.” DSMF, ECF No. 44-1 at 2. However,
Defendants then go on to acknowledge that in this District,
courts have held that a party’s own answers to interrogatories
are admissible so long as they “conform to the strict
requirements of Rule 56(c)(4) applied to affidavits and
declarations in support of a motion.” Id. (citing Houston v.
Sectek, Inc., No. CIV.A.04-2218, 2008 WL 2599832, at *1 (D.D.C.
June 30, 2008)). As Plaintiffs emphasize, Defendants fail to
state which of the three foregoing requirements to admissibility
the Plaintiffs’ sworn answers violate. Nor do Defendants offer
any legal authority within this district for their assertion
that Plaintiffs need to identify a hearsay exception. See
generally DSMF, ECF No. 44-1 at 2. The Court therefore finds
that Defendants have failed to pose a valid challenge to
Plaintiffs’ citation of their interrogatory answers. 9

The Court also recognizes that Defendants’ interrogatory
answers are based on their personal knowledge and contain no
qualifier suggesting a lack of knowledge that would make them
inadmissible. See Houston, 2008 WL 2599832, at *1.
9

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Having resolved all the evidentiary challenges posed by
Defendants, the Court turns to Defendants’ other arguments in
favor of their motion for summary judgment.
B. Ms. Lima is Plaintiffs’ Employer
Defendants argue that Ms. Lima is not an employer under the
FLSA, since she did not hire Plaintiffs, direct their work, or
pay them for it. See Defs.’ MSJ, ECF No. 38 at 19. They suggest
that Plaintiffs are “hung up on [Ms.] Lima’s position and title,
focusing on her status as an officer, owner, incorporator and
director instead of what she was actually doing.” Defs.’ Opp’n,
ECF No. 44 at 17. They contend that Ms. Lima was “essentially
[Mr.] Silveira’s assistant on the occasion when he required her
assistance,” and would “perform tasks as instructed by Silveira,
including writing checks, typing up documents, and sending out
bills and invoices.” Id. at 18. Plaintiffs respond that Ms. Lima
is an employer under the FLSA because she “helped form RBS
Corporation, serves as an Officer (the Vice President), and is
an owner, incorporator and director of RBS Construction
Corporation, Inc.” Pls.’ XMSJ, ECF No. 42 at 36; see also DSMF,
ECF No. 44-1 ¶¶ 1-2. They add that Ms. Lima was involved in the
day-to-day affairs of RBS and controlled corporate funds,
because she: (1) communicated with Plaintiffs’ foremen about
Plaintiffs’ hours, see Silveira Dep., ECF No. 42-2 at 73-75;
Marroquin Dep., ECF No. 44-3 at 148, 163; (2) prepared and gave
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Plaintiff Andrade a 1099 Form for 2016, see Andrade Dep., ECF
No. 44-4 at 72-75; (3) on at least one occasion, instructed
Plaintiff Andrade in the performance of his work on a job site,
see id. at 111; (4) spent corporate funds and used them to pay
personal expenses that she did not reimburse the corporation
for, see Silveira Dep., ECF No. 42-2 at 206-13;

Exhibit L, ECF

No. 42-13; Exhibit O, ECF No. 42-16; (5) wrote checks used to
pay Plaintiffs and other workers of RBS Construction Corp., see
Exhibit L, ECF No. 42-13 at 5, 12, 22; Exhibit N, ECF No. 42-15;
and (6) was aware that at least one Plaintiff (Mr. Andrade) was
owed money for work he had done, see Andrade Dep., ECF No. 44-4
at 108-09. Based on the record herein, the Court finds that Ms.
Lima is an employer.
This District uses a four-part test to determine whether an
individual is an employer under the FLSA, asking whether the
putative employer: (1) has hiring and firing authority; (2)
supervises and schedules employee work hours or conditions of
employment; (3) determines the rate and method of payment; and
(4) maintains employment records.” Saint-Jean, 815 F. Supp. 2d
at 4 (citing Morrison, 253 F.3d at 11). “No one factor standing
alone is dispositive.” Morrison, 253 F.3d at 11. Corporate
officers and owners are individually liable when they engage in
a certain level of operational control. See Wilson, 126 F. Supp.
3d at 6. “To determine whether a corporate officer has
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operational control, the [c]ourt looks at the factors [of the
economic reality test] plus the ownership interest of the
corporate officer.” Orellana, 332 F. Supp. 3d at 263. In other
districts, financial control over a corporation has also been
deemed a significant factor in determining whether an individual
meets the statutory definition of an employer. See, e.g.,
Manning, 725 F.3d at 48.
Here, applying the economic reality test, the record
reflects that Ms. Lima supervised employee work hours,
determined the method of payment, and maintained employment
records. See Orellana, 332 F. Supp. 3d at 263. As Plaintiffs
point out, Ms. Lima was involved in the day-to-day affairs of
RBS Construction Corp. and RBS Group Inc. Defendants themselves
concede she communicated with Plaintiff Marroquin’s supervisor
about the hours he worked, DSMF, ECF No. 44-1 ¶ 35; sent out
bills, id. ¶ 39; paid vendors and employees, id. ¶ 24; and on
one occasion showed up on a job site and instructed Plaintiff
Andrade in the performance of his work, id. ¶ 42. The “economic
reality” cannot be reconciled with Defendants’ contention that
Ms. Lima’s role was “marginal, at best.” Defs.’ Opp’n, ECF No.
44 at 18.
Defendants assert that Ms. Lima’s involvement is explained
by her acting on Mr. Silveira’s direction on every occasion, and
as his “transcriber and assistant.” Defs.’ Opp’n, ECF No. 44 at
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18. This argument would be more persuasive if Ms. Lima was not
herself an owner of RBS Construction Corp. and RBS Group, with
the official title of Vice President. See DSMF, ECF No. 44-1 ¶¶
1-12.

Defendants essentially argue that because Ms. Lima

allegedly wrote checks and performed tasks at her husband’s
direction, the Court should overlook her status as owner, her
access to and use of corporate funds for personal and business
reasons, and her involvement with the business. This argument is
unsustainable. Ms. Lima’s “ownership interest in [RBS], while
not dispositive of employer status under FLSA, certainly raises
a plausible inference that [she] possessed the requisite
operational control over the covered entity.” Wilson, 126 F.
Supp. 3d at 7-8 (internal quotation marks omitted). Combined
with her day-to-day involvement and use of corporate funds, the
record establishes her status as an employer. It is possible Ms.
Lima performed tasks at her husband’s direction, but that does
not change her status vis-à-vis the employees of RBS.
Defendants cite to several cases regarding whether spouses
of business owners are employers for purposes of FLSA. However,
these cases are easily distinguished. In Morataya, the spouse
was hired by her husband’s company as an administrative
assistant and did not have an ownership interest in the
business, unlike the present case. See Morataya v. Nancy's
Kitchen of Silver Spring, Inc., No. GJH-I3-0I888, 2015 WL
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165305, at *2 (D. Md. Jan. 12, 2015). Similarly, in Marroquin,
the spouse in question had no ownership interest, had never been
to any of the company’s work sites, and had done nothing other
than write paychecks and wire money to her husband and son while
they were elsewhere. Marroquin v. Canales, 505 F. Supp. 2d 283,
298 (D. Md. 2007). The Court concludes that Ms. Lima is an
employer for purposes of the FLSA.
C. Mr. Andrade Is Covered Under FLSA, While Mr.
Marroquin’s Coverage Is a Question for The Jury
1. Enterprise Coverage
The FLSA defines “an enterprise engaged in commerce or in
the production of goods for commerce” as one that “has employees
engaged in commerce” and “whose annual gross volume of sales
made or business done is not less than $500,000.” 29 U.S.C. §
203(s)(1)(A)(i)-(ii). Defendants argue that “[b]ecause the
Plaintiffs cannot demonstrate that a genuine dispute of material
fact exists with respect to Defendants’ having gross sales of
$500,000.00 or more in 2016 and 2017, Plaintiffs cannot
establish an element of their overtime claim against Defendants
and summary judgment may be properly granted.” Defs.’ MSJ, ECF
No. 38 at 17.
Plaintiffs concede that they “cannot prove at this time
that Defendants exceeded the $500,000.00 threshold, given
Defendants’ shoddy and fraudulent bookkeeping practices as well

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as their failure to file tax returns during the years in
question.” Pls.’ XMSJ, ECF No. 42 at 30. The Court therefore
grants summary judgment in favor of the Defendants. See Hopkins
v. Women’s Div., Gen. Bd. Of Global Ministries, 284 F. Supp. 2d
15, 25 (D.D.C. 2003) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.”).
2. Individual Coverage
a. The Court Cannot Grant Summary Judgment on
Whether Plaintiff Marroquin is Individually
Covered Under the FLSA
For individual coverage to apply under the FLSA, the
Plaintiffs must provide evidence that they were “(1) engaged in
commerce or (2) engaged in the production of goods for
commerce.” Thorne v. All Restoration Services, Inc., et al., 448
F.3d 1264, 1266 (11th Cir. 2006). “[F]or an employee to be
‘engaged in commerce’ under the FLSA, he must be directly
participating in the actual movement of persons or things in
interstate commerce by (i) working for an instrumentality of
interstate commerce, e.g., transportation or communication
industry employees, or (ii) by regularly using the
instrumentalities of interstate commerce in his work, e.g.,

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regular and recurrent use of interstate telephone, telegraph,
mails or travel.” Id. 10
The FLSA’s implementing regulations recognize that regular
travel across state lines by an employee establishes individual
commerce coverage under the FLSA. See 29 C.F.R. § 776.12. An
employee working on a “traveling construction crew[]” may be
subject to individual coverage by virtue of his interstate
movement. Id. There is no bright-line rule for what amount of
interstate travel is sufficient to trigger the FLSA’s individual
coverage. Employees who are “regularly engaged in traveling
across State lines in the performance of their duties (as
distinguished from merely going to and from their homes or
lodgings in commuting to a work place) are engaged in commerce
and covered” but those who do so on “isolated or sporadic
instances” are not covered. Id. “Doubtful questions arising in
the area between the two extremes must be resolved on the basis
of the facts in each individual case.” Id.
Plaintiffs argue that Mr. Marroquin is covered by the FLSA
because “at least three times a week, (with the exception of his
final week of work when he worked in Maryland) [Mr.] Marroquin

Plaintiffs raise only one ground for concluding that they are
covered by the FLSA: they allege that they were “engaged in
commerce” while working for Defendants because they regularly
engaged in interstate travel. See Pls.’ XMSJ, ECF No. 42 at 32,
34.
10

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started his work day in Maryland and then crossed state lines
into Washington D.C. to continue working.” Pls.’ XMSJ, ECF No.
42 at 33. Specifically, Plaintiffs emphasize Mr. Marroquin’s
testimony that he would go with his foreman to pick up
construction materials “just about daily,” and “about three
times a week they would specifically do so from the Home Depot
in Hyattsville, Maryland” before driving to a construction site
in D.C. Id.; Marroquin Dep., ECF No. 44-3 at 37-43.
Defendants respond that Mr. Marroquin “cannot establish
that this activity represented a substantial part of his work,
and accordingly, [Mr.] Marroquin cannot establish that he was
“engaged in commerce.” Defs.’ Opp’n, ECF No. 44 at 7. First,
Defendants state that regardless of whether Mr. Marroquin’s time
in Home Depot was compensable, he has not shown that the
purchases placed him in the “channels of commerce.” See id. at
8-9. Second, they assert that Mr. Marroquin has not produced any
evidence that he actually went to Home Depot in Hyattsville
three times a week, and that the record only establishes he went
twice over the course of his employment. The Court finds that a
genuine issue of material fact exists on this issue and declines
to grant summary judgment to Defendants.
As a threshold matter, Plaintiffs are not required to show
that their work was “an essential part of the stream of
interstate commerce,” or how, without their work, interstate
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commerce would be “impeded, impaired, or abated.” Defs.’ MSJ,
ECF No. 38 at 8-9. The relevant Regulations plainly state that
the FLSA’s individual coverage “applies to employees [working in
construction] who regularly travel across state lines in the
performance of their duties, even though the construction
project itself is not covered.” 29 C.F.R. § 776.24. Plaintiffs
therefore need only show that they regularly traveled across
state lines for work.
Because how often Mr. Marroquin went to Maryland to pick up
material is a disputed material fact, the Court is unable to
establish whether he “regularly engaged in commerce” across
state lines and is covered by the FLSA. 29 C.F.R. § 776.12.
Plaintiffs contend that Mr. Marroquin, per his own testimony,
picked up materials with his foreman Luis “just about daily” and
that three times a week they went to Home Depot in Hyattsville,
Maryland. Pls.’ Reply, ECF No. 46 at 6; Marroquin Dep., ECF No.
44-3 at 37-43. Although such testimony, standing alone, may be
considered a self-serving statement which does not give rise to
a triable issue of fact, see Toomer v. Mattis, 266 F. Supp. 2d
184, 200 (D.D.C. 2017); Plaintiffs also offer support in the
form of Defendants’ bank account records to show the regularity
with which Defendants purchased material at the Home Depot in
Maryland. See Pls.’ XMSJ, ECF No. 42 at 32-33; Exhibit Q, ECF
No. 42-18.
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Admittedly, as Defendants point out, “[f]rom late July 2016
to mid-October 2016, the bank statements reveal that Defendants
purchased goods from the Home Depot located in Hyattsville, MD
on a total of two dates during the time that [Mr.] Marroquin
worked for the Defendants.” Defs.’ Opp’n, ECF No. 44 at 44. But
the bank statements are just one piece of evidence that
Plaintiffs use to support Mr. Marroquin’s testimony; Plaintiffs
also emphasize Ms. Lima’s own testimony that she used her
personal card to pay for purchases at Home Depot. See Exhibit A,
ECF No. 42-2 at 62-66. Lacking access to Ms. Lima’s card
records, which she failed to keep despite using the card for
business transactions, the Plaintiffs cannot establish exactly
how many times Ms. Lima paid for purchases. 11 See id.
Nonetheless, taking Ms. Lima’s testimony alongside the bank
records and Mr. Marroquin’s testimony, the Court is persuaded
that there is a genuine dispute of fact. “Because the frequency
of travel is critical to establishing coverage, this dispute is

Ms. Lima’s deposition testimony is contradictory and vague.
She first states that she “let [Plaintiffs] use [her] credit
card, because [her] husband did not have any credit cards. See
Exhibit A, ECF No. 42-2 at 65:11-16. She adds that she used
either a Bank of America or Capital One credit card but goes on
to deny having either of those credit cards in 2016 or 2017. See
id. at 65-67. She then asserts that she actually paid with a
debit card and goes back and forth on whether it was a Bank of
America card or not, before stating that she does not remember.
See id. at 67-68. She concludes by saying that she did not keep
any records of the card charges. Id. at 68:14.
11

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material.” Benton, 210 F. Supp. 3d at 110. Moreover, whether Mr.
Marroquin can substantiate his factual claim depends on
assessing his credibility, which is within the province of the
jury. See id.
Accordingly, the Court declines to grant summary judgment
on the issue of whether Mr. Marroquin is covered by the FLSA.
b. Mr. Andrade Is Individually Covered Under
the FLSA
Plaintiffs state that Mr. Andrade’s interstate travel
involved traveling between job sites in Maryland and D.C. in a
single workday and traveling from D.C. to Maryland to pick up
equipment and then returning to D.C. to perform work. Pls.’
XMSJ, ECF No. 42 at 35. Plaintiffs contend that Mr. Andrade is
individually covered because he undertook interstate travel on
average “every 34 days,” which “at the least creates a dispute
of material fact as to whether Andrade is individually covered.”
Id. at 35-36. The Plaintiffs highlight that “[Mr.] Andrade’s
monthly crossing of state lines in the performance of his duties
is certainly more frequent than the 15 instances over the course
of 36 months (or once every 2.4 months) that the court in the
Solano case concluded would be a ‘close call’ when denying
summary judgment for the Defendant on the issue of FLSA
coverage.” Id. at 36 (citing Solano v. A Navas Party Prod.,
Inc., 728 F. Supp. 2d 1334, 1346 (S.D. Fla. 2010)).

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Defendants do not dispute the number of times Mr. Andrade
travelled inter-state but respond that Mr. Andrade’s travel was
“well shy of the bi-monthly standard articulated in Benton as
approaching the limits of the FLSA’s individual coverage reach.”
Defs.’ Opp’n, ECF No. 44 at 12 (citing Benton, 210 F. Supp. 3d
at 106-107 ([B]i-monthly travel approaches the limits of
coverage, and more infrequent travel amounting to only sporadic
trips each year are insufficient.”)). The Court concludes that
Mr. Andrade is individually covered.
As a threshold matter, the Court interprets the “bimonthly” standard articulated in Benton to mean once every two
months. Benton states that “[t]he cases that do exist suggest
that weekly or bi-weekly travel is almost certainly sufficient
to establish individual coverage, while bi-monthly travel
approaches the limits of coverage, and more infrequent travel
amounting to only sporadic trips each year are insufficient.”
Benton, 210 F. Supp. 3d at 107. The gradation in the text, from
most often (“weekly”), to least often (“sporadic trips each
year”), suggests that bi-weekly and bi-monthly are used to mean
once every two weeks and once every two months respectively,
rather than twice a week and twice a month. Moreover, the case
cited in support directly thereafter concludes that plaintiff
employees of an elderly care facility who traveled out of state
with facility residents weekly, or two to four times per month,
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established individual coverage to survive summary judgment.
See Benton, 210 F. Supp. 3d at 107 (citing Bowrin v. Catholic
Guardian Soc'y , 417 F. Supp. 2d 449, 468–71 (S.D.N.Y.2006)).
“[T]wo to four times per month” amounts to weekly to bi-weekly,
and Benton describes bi-weekly as “almost certainly sufficient
to establish individual coverage.” Id. Another case cited by
Benton and by Plaintiffs concluded that “two [interstate] trips
in thirty-six months would be ‘isolated or sporadic,’ and
Plaintiff would not qualify for individual coverage,” but it
would be a “closer call if Plaintiff can prove he traveled at
least fifteen times in connection with his employment.” Id.
(citing Solano v. A. Navas Party Prod., Inc., 728 F. Supp. 2d
1334, 1346 (S.D. Fla. 2010)). Fifteen times over thirty-six
months is almost bi-monthly in the sense of once per two months,
which Benton describes as approaching the limits of coverage.
Id.
The standard articulated in Benton, to which the defendants
themselves refer the Court, see Defs.’ Opp’n, ECF No. 44 at 12;
makes clear that bi-monthly travel is approaching the limits of
coverage, but that it does not exceed them, see Benton, 210 F.
Supp. 3d at 107 (emphasis added). Further persuasive authority
comes from Solano, which describes travel fifteen times over
thirty-six months as “a closer call.” Solano, 728 F. Supp. 2d at
1346. Fifteen times over thirty-six months is less frequent than
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bi-monthly, and far less frequent than Plaintiff Andrade’s six
trips over seven months, or average of one occasion of
interstate travel every thirty-four days. The Court concludes
that Mr. Andrade is entitled to FLSA coverage.

12

D. The Question of Whether Plaintiffs Have Provided a
Just and Reasonable Inference for Damages Is
Inappropriate for Summary Judgment
Defendants argue that Plaintiff’s testimony regarding
damages is “incomprehensible, inconsistent, and rife with
contradictions,” and offers no basis “for the Jury to enter a
judgment in their respective favor by a ‘just and reasonable’
inference.” Defs.’ MSJ, ECF No. 38 at 22. Defendants point out
that Plaintiff Marroquin cannot identify the payments he
received, but that he admits he received $200 to $300 “a lot of
times” from Defendant Silveira. Id. They add that because Mr.
Marroquin cannot testify as to what he was paid, he cannot
testify to what he is owed. Id. at 22-23. Defendants also
highlight shortcomings in Mr. Andrade's testimony, including the
fact that he admitted destroying a record of payments he
received from Mr. Silveira. See Andrade Dep., ECF No. 44-4 at
55, 58. Defendants emphasize that Mr. Andrade cannot testify to
how he added up the amount he claims he was paid, id. at 34-38;

The Court therefore need not reach Plaintiff’s arguments that
(1) it should exercise pendent jurisdiction over his D.C. law
claims; and (2) it should exercise supplemental jurisdiction
over the state law claims. See Pls.’ XMSJ, ECF No. 42 at 36-37.
12

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cannot recall the how often he was paid, id. at 55, 58; has
testified that he is owed anywhere from $2,500 to $20,000, id.
at 63, 67-69; and admits that he is guessing, id. at 68.
Plaintiffs respond that Defendants have misrepresented
Plaintiffs’ deposition testimony and have not presented any
evidence that shows the Plaintiffs did not work the hours they
claimed or were paid more than they claimed. Pls.’ XMSJ, ECF No.
42 at 26-27. Plaintiffs assert that they, in contrast, have
“presented evidence to allow a jury to determine their damages
as matter of just and reasonable inference,” including (1) their
approximate damages, see SMF, ECF No. 42-28 ¶¶ 93, 97; the hours
they worked, id. ¶¶ 106, 108; what their rates of pay were id.
¶¶ 45, 106; and how much they were paid by Defendants, id. ¶¶
59, 60. Plaintiffs add that they produced in discovery
handwritten time records which contain precise information about
their damages, see Marroquin Wage Calculation, ECF No. 42-21 at
4-9; Romero Wage Calculation, ECF No. 42-22 at 7-16; and that
they have calculated their damages using these records. See
Marroquin Wage Calculation; ECF No. 42-21 at 1-3; Romero Wage
Calculation, ECF No. 42-22 at 1-6.
As a threshold matter, the Court is cognizant that a burden
shifting scheme applies. Where, as here, an employer’s records
are incomplete or inaccurate, an employee need only “alleg[e]
that he performed work for which he was not properly
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compensated and then ‘produc[e] sufficient evidence to show the
amount and extent of that work as a matter of just and
reasonable inference’” in order to make a prima facie case for
overtime compensation. Hunter, 453 F. Supp. 2d at 52 (quoting
Mt. Clemens, 328 U.S. at 687, 66 S.Ct. 1187). The employer must
then present its own evidence as to the amount of work the
employee actually performed or rebut the reasonableness of the
inference from the employee’s evidence. Id. at 58. The fact
that the employee’s evidence is merely an approximation is not
a bar to recovery. Mt. Clemens, 382 U.S. at 688, 66 S.Ct 1187.
Resolving disputes as to the hours of work actually performed
or as to the reasonableness of the inference often “requires an
assessment of credibility,” which is beyond the scope of
summary judgment. Hunter, 453 F. Supp. 2d at 53.
Here, Plaintiffs have made a prima facie case of
compensation, since both Plaintiffs have testified to and / or
provided records of the amount of hours worked per day, the
number of days worked per week, the amount of wages paid, and
their hourly rate. See Pls.’ XMSJ, ECF No. 42 at 26-27;
Marroquin Dep., ECF No. 44-3 at 66; Andrade Dep., ECF No. 44-4
at 18, 27-28; Marroquin Wage Calculation, ECF No. 42-21 at 6-11;
Andrade Wage Calculation, ECF No. 42-22 at 11-20. The Court
agrees with Plaintiffs that Defendants present no evidence that
shows the amount of work that Plaintiffs actually performed.
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Instead, Defendants focus “on trying to negate the
reasonableness of the inference to be drawn from the employee’s
evidence.” Hunter, 453 F. Supp. 2d at 44 (internal quotation
marks omitted). Such an inference on reasonableness is
inappropriate for summary judgment, and necessarily requires an
assessment of credibility. Hunter, 453 F. Supp. 2d at 53.
The Court therefore declines to grant summary judgment on
whether a just and reasonable inference on damages can be made.

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V.

Conclusion
For the foregoing reasons, the Defendants’ Motion for

Summary Judgement, ECF No. 38; is GRANTED IN PART and DENIED IN
PART; 13 and Plaintiffs’ Cross-Motion for Summary Judgment, ECF
No. 42; is GRANTED IN PART and DENIED IN PART; 14 and Defendants’
Motion to Strike, ECF No. 48, is GRANTED IN PART and DENIED IN
PART. 15 An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed:

Emmet G. Sullivan
United States District Judge
February 22, 2022

Defendants are granted summary judgment on the lack of
enterprise coverage under the FLSA for both Plaintiffs.
13

Plaintiffs are granted summary judgment as to Ms. Lima’s
status as an employer, and as to Mr. Andrade’s coverage under
the FLSA. The Court also finds that Plaintiffs have made a prima
facie case of violations under the FLSA, but the Court refrains
from granting summary judgment on the reasonableness of
Plaintiffs’ claimed damages.
14

Defendants’ Motion to Strike, ECF No. 48, is denied except as
to the Plaintiffs being ordered to submit a new affidavit for
Mr. Marroquin that does not correct his deposition testimony.
See ECF No. 42-20 ¶ 9.
15

54