Villanueva et al v. D&JJ Inc. et al

Filing 130

MEMORANDUM OPINION AND ORDER granting in part and denying in part 126 Plaintiff's Motion for Default Judgment; DEFAULT JUDGMENT in favor of Plaintiffs against Domingo E. Constanza Rodriguez and D&JJ Inc.; directing Plaintiff's counsel to provide an explanation and calculation regarding attorney's fees. Signed by Judge Paul W. Grimm on 9/19/2022. (jf3s, Deputy Clerk) CM to Def on 9/19/2022 (jf3s, Deputy Clerk).

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
WALTER VILLANUEVA, et al.,
Plaintiff,

*

D&JJ, Inc., et al.,

*

Case No.: 20-cv-556

*

Defendants.
*

*
*

v.

*

*

*

*
*
*
*
*
*
*
MEMORANDUM OPINION AND ORDER

*

*

*

*

On February 28, 2020, Plaintiffs Walter Villanueva, Jose Fidel Moreno, Jose Joaquin
Moreno, Ricardo Villalobos, Alcides Alvarenga, Oscar Castro, Emerson Fernando Garcia, Gerson
Amaya, Hugo Rodriguez, Juan Antonio Constanza, Norwin Soza, Samuel Edenilson Angulo, and
Samuel V. Angul (“Plaintiffs”), on behalf of themselves and similarly situated persons, filed
collective suit against Defendants D&JJ Inc. (“D&JJ”), CR Calderon Construction Inc., Costello
Construction of Maryland, Inc., and Costello Construction, Inc. for violations of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq.; the Maryland Wage and Hour Law
(“MWHL”), Md. Code Lab. & Empl. Art. § 3-415, et seq.; the Maryland Wage Payment and
Collection Law (“MWPCL”), Md. Code Lab. & Empl. Art., § 3-501, et seq.; and the Maryland
Prevailing Wage Statute (“MPWS”), Md. Code State Fin. & Proc. § 17-219, et seq. 1 Compl., ECF

Plaintiffs’ original complaint included claims raised under the Maryland Workplace Fraud
Act, Md. Code Lab. & Empl. Art. § 3-901, et seq, for worker misclassification. Because the
damages associated with this claim overlap with Defendants’ failure to pay an overtime premium,
Plaintiffs are not moving separately for judgment on this claim. In the interest of efficiency and
expediency Plaintiffs now seek to dismiss claims raised under the Maryland Workplace Fraud Act.
Pls.’ Mem. re Mot. for Default J., ECF No. 127, n. 1.
1

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 2 of 11

No. 1. On November 13, 2020, the Complaint was amended to include additional defendants
Ricardo Javier Melendez Guzman and Domingo E. Constanza Rodriguez. See Am. Compl., ECF
No. 58. Defendants D&JJ and Constanza Rodriguez (“Defendants”) did not answer the Complaint
or otherwise defend against the suit. Plaintiffs subsequently filed a Motion for Clerk’s Entry of
Default, ECF No. 41, which was granted, ECF Nos. 71, 121, and a Motion for Default Judgment,
ECF No. 126. Neither D&JJ nor Mr. Constanza Rodriguez responded to the Entry of Default or to
the Motion for Default Judgment, and the time for doing so has long passed. See Loc. R. 105.2(a)
(D. Md. 2021). l have reviewed the filings and find a hearing unnecessary. See Loc. R. 105.6 (D.
Md. 2021). For the following reasons, The Plaintiffs’ motion shall be GRANTED in part and
DENIED in part.
BACKGROUND
Plaintiffs are construction laborers who performed drywall work for Defendants on the
Catonsville Courthouse Project (“the Project”) in Maryland at varying times between 2018 and
2019. A majority of the individual Plaintiffs are residents of the state of Maryland. Am. Compl.
¶ 5-19. Defendant D&JJ is a Maryland corporation with its principal place of business in Silver
Spring, Maryland, Id. ¶ 21, and Defendant Constanza Rodriguez is a co-owner and director of
D&JJ, Id. ¶ 23. The Courthouse was constructed pursuant to public works project # BC-230-080001 with the state of Maryland. ECF No. 127-15 (“Project Prevailing Wages”). D&JJ was a thirdtier subcontractor, meaning it contracted with another subcontractor to complete construction work
on the Project. Am. Compl. ¶ 26.
Plaintiffs allege that, at all times during their work on the Project, they were legally
presumed to be employees of Defendants under Maryland law, Lab. & Empl. Art. § 3-903(c). Am.
Compl. ¶ 40. Plaintiffs further allege that an employer-employee relationship actually existed

2

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 3 of 11

because Defendants directly controlled the Plaintiffs’ work by assigning tasks, setting hours, and
supervising their work. Id. ¶ 36. Defendants also retained the power to terminate Plaintiffs’
employment. Id. ¶ 35. Plaintiffs were never engaged in an independent business, Id. ¶ 37, and all
work activities performed were within the usual course of the Defendants’ business. Id. ¶ 38.
Accordingly, Plaintiffs allege, Defendants are covered employers under FLSA and MWHL, Id.
¶¶ 67, 75, and Plaintiffs are the Defendants’ employees under the same, Id. ¶¶ 66, 74.
Plaintiffs allege that, during their course of employment with the Defendants, they were
each paid an hourly rate ranging from $12 per hour to $20 per hour with no hourly benefit
contribution. Pls.’ Decls., ECF Nos. 127-1–13. Plaintiffs allege that Defendants failed to pay the
Project’s higher stipulated minimum wage of $26.21 per hour for drywall laborers plus $12.95 per
hour in fringe benefit payments. Am. Compl. ¶ 86. Plaintiffs further allege they each regularly
worked in excess of 40 hours in a single work week without ever being paid at the required
overtime rate of 1.5 times their hourly rate. Id. ¶¶ 70, 78. Plaintiffs thus seek to recover underpaid
regular and overtime wages plus statutory damages, reasonable attorney’s fees and costs. Id. ¶¶ 72,
80, 94.
D&JJ was served on September 22, 2020, and Mr. Constanza Rodriguez was served on
January 15, 2020. See Executed Summons, ECF Nos. 46 & 92. The Defendants failed to respond
to the Complaint, and the Clerk entered an Order of Default as to D&JJ on December 14, 2020,
and as to Mr. Constanza Rodriguez on August 5, 2021. See Clerk’s Entry of Default, ECF Nos. 71
& 121. The Plaintiffs now ask this Court to enter default judgment in their favor totaling
$1,564,952.52. Mot. For Default J., ECF No. 126. Plaintiffs specifically seek $521,650.84 in
unpaid wages and $1,043,301.68 in statutory damages. Id.

3

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 4 of 11

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.” Default judgment, however, is not
automatic, and is left to the discretion of the court. Choice Hotels Int’l., Inc. v. Jai Shree Navdurga,
LLC, Civil Action No. DKC 11-2893, 2012 WL 5995248, at *1 (D. Md. 2012). Although the
Fourth Circuit has a “strong policy” that “cases be decided on their merits,” Dow v. Jones, 232 F.
Supp. 2d 491, 494 (D. Md. 2002) (citing United States v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th
Cir. 1993)), default judgment may be appropriate where a party is unresponsive, see S.E.C. v.
Lawbaugh, 359 F. Supp. 2d 418, 421 (D. Md. 2005) (citing Jackson v. Beech, 636 F.2d 831, 836
(D.C. Cir. 1980)).
In determining whether to grant a motion for default judgment, the Court takes as true the
well-pleaded factual allegations in the complaint, other than those pertaining to damages. Ryan v.
Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). If the Court finds that “liability is
established, [it] must then determine the appropriate amount of damages.” Agora Fin., LLC v.
Samler, 725 F. Supp. 2d 491, 494 (D. Md. 2010) (citing Ryan, 253 F.3d at 780–81). In order to do
so, “the court may conduct an evidentiary hearing, or may dispense with a hearing if there is an
adequate evidentiary basis in the record from which to calculate an award.” Mata v. G.O.
Contractors Grp., No. TDC-14-3287, 2015 WL 6674650, at *3 (D. Md. Oct. 29, 2015); see
also Fed. R. Civ. P. 55(b).

4

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 5 of 11

DISCUSSION
A.

Liability

Plaintiffs seeks default judgment with respect to claims for undercompensated regular and
overtime wages under the FLSA, MWHL, MWPCL, and MPWS. Employers must pay their
employees overtime wages of one-and-one-half times the employee’s regular hourly wage for
every hour worked over 40 hours under the FLSA , MWHL, and MPWS. 29 U.S.C. § 207(a)(1);
Md. Code, Lab. & Empl. Art., §§ 3-415(a), 3-420(a); Md. Code, State Fin. & Proc., § 17-214(b)(2).
Under the MWPCL, employers must pay employees all wages owed for work performed prior to
termination, where “wages” includes overtime payments. MWPCL §§ 3-501(c), 3-505(a). Under
the MPWS, contractors and subcontractors to a Maryland public works contract must pay each
employee no less than the prevailing wage rate determined by the Commissioner. MPWS § 17215. Taking the allegations in the well-pleaded Complaint as true, Defendants were Plaintiffs’
employers within the meaning of the FLSA, MWHL, and MWPCL. Am. Compl. ¶¶ 67, 75, 83.
Further, Defendants were subcontractors on a public works contract subject to MPWS. 2 Id. ¶ 91.
An employee bears “the burden of establishing the hours he claims to have worked.”
McLaughlin v. Murphy, 436 F. Supp. 2d 732, 737 (D. Md. 2005). However, if the defendant
employer does not produce time sheets, the employee may prove hours worked by “‘produc[ing]
sufficient evidence to show the amount and extent of that work as a matter of just and reasonable

The plain language of the MPWS specifies that its provisions apply to subcontractors. § 17215(a). The Maryland Court of Special Appeals was asked in Brown v. J & M Sweeping, LLC to
decide whether the act’s provisions also apply to third-tier subcontractors (also called subsubcontractors) but declined to reach this issue, deciding the case on other grounds instead. Brown
v. J & M Sweeping, LLC, No. 762, Sept. Term, 2017, 2019 WL 1504357, at *9 (Md. Ct. Spec.
App. Apr. 5, 2019). Because the prevailing wage statement issued by the Maryland Department of
Labor for the Project states the wage rates apply to “the successful bidder and any subcontractor
under him,” Project Prevailing Wages at 1, I conclude the provisions of the MPWS apply to subsubcontractors as well.
2

5

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 6 of 11

inference.’” Butler v. DirectSAT USA, LLC, 47 F. Supp. 3d 300, 309 (D. Md. 2014) (quoting
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687–88 (1946), superseded by statute on
other grounds as stated in Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 516–17 (2014)).
Thus, “‘[a] prima facie case can be made through an employee’s testimony giving his recollection
of hours worked . . . .’” Hurd v. NDL, Inc., No. CCB-11-1944, 2012 WL 642425, at *4 (D. Md.
Feb. 27, 2012) (quoting Donovan v. Kentwood Dev. Co., Inc., 549 F. Supp. 480, 485 (D. Md.
1982)).
Plaintiffs submitted with this Motion individual Declarations stating that they each worked
on average around 48 hours per week during their employment with the Defendants. Pls.’ Decls.
¶ 6. Plaintiffs declare they were never paid overtime at the rate of one and one-half times their
regular rate for any hours in excess of forty worked in a single one-week period. Id. ¶ 7. They also
contend they were never paid in accordance with the appropriate prevailing wage rate for the
Project. Id. ¶ 8. See also Am. Compl. ¶ 92. Consistent with these Declarations, Plaintiffs have filed
as Exhibits to this Motion Excel spreadsheets documenting by week their estimated hours worked,
the actual wages paid, and the wages owed. See Pls.’ Decls.
I conclude that, through their Complaint and Declarations, Plaintiffs have established
Defendants’ liability for violating the FLSA, MWHL, MWPCL, and MPWS.
B.

Damages

The FLSA, MWPCL, and the MPWS all provide that a prevailing plaintiff may recover
unpaid wages, including unpaid overtime, plus an additional amount in damages. 29 U.S.C.
§ 216(b); MWPCL § 3-507(b)(1); MPWS § 17-224(e). The MPWS also allows a plaintiff to
recover unpaid fringe benefit contributions. MPWS § 17-224(e)(2). Under the FLSA, a plaintiff
may recover his unpaid wages, plus “an additional equal amount as liquidated damages.” 29 U.S.C.

6

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 7 of 11

§ 216(b). Under both the MWPCL and the MPWS, he may recover up to three times the amount
of his unpaid wages, inclusive of damages. MWPCL § 3-507(b)(1); MPWS § 17-224(e). Because
Plaintiffs may not recover twice for the same harm, I assess this claim for statutory damages under
the statute that offers the greatest potential recovery. Mata, 2015 WL 6674650 at *4.
The MPWS allows a plaintiff to recover double or treble damages only “if the court finds
that the employer withheld wages or fringe benefits willfully and knowingly or with deliberate
ignorance or reckless disregard of the employer's obligations . . . .” MPWS § 17-224(e)(3). While
the amended complaint contains conclusory statements that Defendants willfully and intentionally
failed to pay Plaintiffs in accordance with the MPWS, Am. Compl. ¶ 96, it contains no wellpleaded factual allegations to that effect. Plaintiffs therefore have not demonstrated entitlement to
enhanced damages under the MPWS and the MWPCL offers a higher recovery.
A plaintiff may recover “an amount not exceeding 3 times the [unpaid] wage[s]” only if
the wages were not withheld as the result of a “bona fide dispute.” MWPCL § 3-507(b)(1). A
“bona fide dispute” is “‘a legitimate dispute over the validity of the claim or the amount that is
owing [ ]’ where the employer has a good faith basis for refusing an employee’s claim for unpaid
wages.” Peters v. Early Healthcare Giver, Inc., 97 A.3d 621, 627 (Md. 2014) (quoting Admiral
Mortg., Inc. v. Cooper, 745 A.2d 1026, 1031 (Md. 2000)). The court is “required to make a
predicate finding as to whether the wages were withheld pursuant to a bona fide dispute . . . . before
proceeding to the question of enhanced damages.” Peters, 97 A.3d at 626. However, the “burden
of production with respect to showing a bona fide dispute” falls on the employer. Id. at 627–28.
See also Monge v. Portofino Ristorante, 751 F. Supp. 2d 789, 796 (D. Md. 2010) (quoting Md.
Code, Lab. & Empl. § 3–507.2(b)). 3 Here, because the Defendants failed to produce evidence that

3

The Monge Court quotes from § 3–507.2(b) but cited § 3–507.1(b) in the opinion.
7

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 8 of 11

wages were withheld as a result of a bona fide dispute, I will consider whether to award enhanced
damages.
In all, Plaintiffs seek payment for 18,680 underpaid hours of straight-time work, 3,736
hours of underpaid overtime, and 22,416 in unpaid fringe benefit hours. Pls.’ Decls. For
undercompensated regular time and fringe benefit pay under the MPWS, “the court shall award
the affected employee the difference between the wage actually paid and the prevailing wage at
the time that the services were rendered.” State Fin. & Proc. § 17-224. For undercompensated
overtime, “the Court takes the undercompensated hours and multiplies that figure by one-half the
employee’s base hourly rate, the difference between the mandated overtime rate and the
employee’s regular rate.” Mata, 2015 WL 6674650 at *5. The table below confirms that Plaintiffs’
calculations of wages owed by Defendants is correct:
Plaintiff

Regular Correct

OT

Correct

Correct

Total

Actual

Wages

Hours

Hours

OT Pay

Fringe

Correct

Pay

Owed

Pay

Pay

Received

Regular
Pay

A. Alvarenga

2,920

76,533.20

584

22,959.96

45,376.80

144,869.96

70,080.00

74,789.96

E. Hernandez

1,080

28,306.80

216

8,492.04

16,783.20

53,582.04

18,144.00

35,438.04

G. Amaya

880

23,064.80

176

6,919.44

13,675.20

43,659.44

20,064.00

23,595.44

H. Rodriguez

1,480

38,790.80

296

11,637.24

22,999.20

73,427.24

33,744.00

39,683.24

J. Moreno

160

4,193.60

32

1,258.08

2,486.40

7,938.08

2,304.00

5,634.08

J.F. Moreno

2,200

57,662.00

440

17,298.60

34,188.00

109,148.60

47,520.00

61,628.60

J. Constanza

2,240

58,710.40

448

17,613.12

34,809.60

111,133.12

48,384.00

62,749.12

N. Soza

2,160

56,613.60

432

16,984.08

33,566.40

107,164.08

51,840.00

55,324.08

O. Castro

2,040

53,468.40

408

16,040.52

31,701.60

101,210.52

44,064.00

57,146.52

8

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 9 of 11

R. Villalobos

1,160

30,403.60

232

9,121.08

18,026.40

57,551.08

25,056.00

32,495.08

S. Angulo

880

23,064.80

176

6,919.44

13,675.20

43,659.44

19,008.00

24,651.44

S. Hernandez

880

23,064.80

176

6,919.44

13,675.20

43,659.44

12,672.00

30,987.44

W. Villanueva

600

15,726.00

120

4,717.80

9,324.00

29,767.80

12,240.00

17,527.80

TOTAL

18,680

489,602.80 3,736

926,770.84

405,120.00

521,650.84

146,880.84 290,287.20

I consider next whether to award Plaintiffs enhanced damages under the MWPCL. The
MWPCL authorizes a maximum total award of three times the amount of wages owed. MWPCL
§ 3-507(b)(1). “[A]n employee is not presumptively entitled to enhanced damages,” and the Court
“has the discretion to decline any award of enhanced damages, notwithstanding a finding that there
was no bona fide dispute.” See Peters v. Early Healthcare Giver, Inc., 97 A.3d 621, 630 (Md.
2014) (discussing the trier of fact’s discretion). In determining whether to award enhanced
damages, the Court may consider “‘significant consequences’ of being underpaid, such as ‘being
unable to meet . . . weekly or monthly obligations, ranging from embarrassment, to late charges,
to repossessions, [and] eviction.’” Mata, 2015 WL 6674650 at *5 (quoting Admiral Mortg. Inc. v.
Cooper, 745 A.2d 1026, 1034 (Md. 2000)).
Plaintiffs have not provided any evidence of consequential damages a result of the
Defendants’ violations. This Court has previously found that wages should be doubled, rather than
tripled, in default judgment cases where the plaintiffs proffered no evidence of consequential
damages. See Monge, 751 F. Supp. 2d at 799–800; Lopez v. Lawns ‘R’ Us, No. DKC 07-2979,
2008 WL 2227353, at *4 (D. Md. May 23, 2008). I likewise find it appropriate to double the
Plaintiffs’ unpaid wages of $521,650.84 rather than triple them. I therefore award Plaintiffs

9

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 10 of 11

$521,650.84 in unpaid wages, plus an additional $521,650.84 in enhanced damages under the
MWPCL.
C.

Attorney’s Fees and Costs

Plaintiffs seek reasonable attorney’s fees and other associated costs as part of this action.
Am. Compl. at 17. The MWPCL provides that a prevailing plaintiff may be awarded “reasonable
counsel fees and other costs” when wages were not withheld as a result of a bona fide dispute. Md.
Code, Lab. & Empl. § 3-507.2(b). Because the defendants have put forth no evidence or claim that
a bona fide dispute existed, Plaintiffs may be awarded reasonable attorney’s fees and costs
associated with enforcing this judgment. Pursuant to Fed. R. Civ. P. 54(d)(2)(B), Plaintiffs’
counsel is directed to provide supplemental briefing which explains and calculates attorney’s fees
and associated costs sought by Plaintiffs within 14 days of this Memorandum and Order.
CONCLUSION
For the reasons identified in the foregoing Memorandum Opinion, Plaintiff’s motion for
default judgment is GRANTED IN PART and DENIED IN PART.
ORDER
For the foregoing reasons, it is, this 19th day of September 2022, ORDERED:
1. Plaintiff’s Motion for Default Judgment, ECF No. 126, is GRANTED IN PART
and DENIED IN PART.
a. Plaintiffs’ request for enhanced damages in the amount of $1,564,952.52
is DENIED;
b. Plaintiffs will instead be awarded enhanced damages in the amount of
$521,650.84;
c. The balance of Plaintiffs’ Motion is GRANTED.
2. Pursuant to Federal Rule of Civil Procedure 58, Judgment by default is hereby
ENTERED in favor of Plaintiffs Walter Villanueva, Jose Fidel Moreno, Jose
Joaquin Moreno, Ricardo Villalobos, Alcides Alvarenga, Oscar Castro, Emerson
Fernando Garcia, Gerson Amaya, Hugo Rodriguez, Juan Antonio Constanza,
10

Case 8:20-cv-00556-PWG Document 130 Filed 09/19/22 Page 11 of 11

Norwin Soza, Samuel Edenilson Angulo, and Samuel V. Angul and against
Defendants D&JJ, Inc., and Domingo E. Constanza Rodriguez, jointly and
severally, as follows:
a. Plaintiffs are awarded $521,650.84 in unpaid wages;
b. Plaintiffs are awarded $521,650.84 in enhanced damages;
3. Plaintiffs’ counsel is ordered to provide, within fourteen (14) days of this
Memorandum and Order, a complete explanation and calculation of the
reasonable attorney’s fees and associated costs that Plaintiffs are seeking.

Date: September 19, 2022

______/S/_____________________
Paul W. Grimm
United States District Judge

11