Garcia et al v. Conway

Filing 20

REPORT AND RECOMMENDATION: For the reasons, the undersigned Magistrate Judge RECOMMENDS that plaintiffs' motion for entry of judgment by default be GRANTED, and that judgment be entered in favor of plaintiffs and against defendant Conway in the amount of $1,947.00 in unpaid wages and overtime plus an additional equal amount of unliquidated damages pursuant to 29 U.S.C. § 216(b) for a total amount of $3,894.00 plus costs and a reasonable attorney's fee. Signed by Magistrate Judge John S. Bryant on 7/8/11. (af)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FRANCISCO GARCIA, et al.,
Plaintiffs,
v.
ISA CONWAY, d/b/a C & M
Construction
Defendant.

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NO. 3:10-1069
Judge Sharp/Bryant

TO: The Honorable Kevin H. Sharp
REPORT AND RECOMMENDATION
Plaintiffs Francisco Garcia and Gregorio Lopez have filed
their motion for entry of default judgment (Docket Entry No. 15) to
which the defendant has not responded.
referred

to

the

undersigned

Magistrate

This motion has been
Judge

for

report

and

recommendation (Docket Entry No. 4).
For the reasons stated below, the undersigned Magistrate
Judge finds that plaintiffs’ motion for entry of default judgment
should be granted, and recommends that judgment in their favor be
entered.
Procedural History
Plaintiffs Garcia and Lopez filed their complaint on
November 12, 2010, seeking unpaid wages and overtime pursuant to
the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”).

In

summary, plaintiffs allege that they were employed by defendant
Conway in his construction business, and that defendant failed to

pay them wages required by law.

Plaintiffs seek to recover their

lost wages, overtime, and liquidated damages pursuant to 29 U.S.C.
§ 216(b). The record indicates that defendant Conway was personally
served with a summons and complaint on November 18, 2010 (Docket
Entry No. 5).

After defendant Conway failed to appear or respond

to the complaint, plaintiffs filed their motion for entry of
default pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure (Docket Entry No. 7).

The Clerk entered default against

the defendant on December 27, 2010, after the defendant failed to
appear or otherwise defend this case (Docket Entry No. 10).
Plaintiffs Garcia and Lopez have now filed their motion
of entry of judgment by default (Docket Entry No. 15) supported by
their respective declarations (Docket Entry Nos. 17 and 18) and a
memorandum of law (Docket Entry No. 16).
Analysis
According to plaintiff Garcia’s declaration, he was
employed by defendant Conway and his company, C & M Construction,
as a painter.

Plaintiff Garcia states that he often worked more

than 40 hours a week but that he was never paid an overtime
premium.

In addition, plaintiff Garcia states that he worked more

than 115 hours for defendant, including 47.5 overtime hours, but
was paid for only 15 hours at straight time rates.

Plaintiff

Garcia asserts that he is entitled to recover lost wages at the
minimum wage rate of $7.25 per hour for 100 hours ($725.00) and an
additional overtime premium at the rate of $3.63 per hour for 47.5

hours ($172.00) for a total of $897.00, plus an additional, equal
amount in liquidated damages for a total amount of $1,794.00
(Docket Entry No. 17).
Plaintiff Lopez states in his declaration that he, too,
was

employed

by

defendant

Conway

Construction, as a painter.

and

his

company,

C

&

M

Plaintiff Lopez declares that he

worked over 300 hours for defendant, including at least 75 overtime
hours, but was paid for only 69 hours at straight time rates.
Plaintiff Lopez asserts that he is entitled to recover lost wages
at

the

minimum

wage

rate

of

$7.25

per

hour

for

231

hours

($1,674.75) and overtime premiums at the rate of $3.63 per hour for
75 hours ($272.25) for a total of $1,947.00, together with an
additional, equal amount in liquidated damages for a total amount
of $3,894.00 (Docket Entry No. 18).
From

the

foregoing

uncontroverted

evidence,

the

undersigned Magistrate Judge finds that plaintiffs’ motion for
entry of judgment by default should be granted, and that judgment
should be entered against defendant in favor of plaintiff Garcia
for unpaid wages and overtime in the total amount of $897.00 plus
an additional equal amount in liquidated damages pursuant to 29
U.S.C. § 216(b) for a total amount of $1,794.00 plus costs and a
reasonable attorney’s fee.
In addition, judgment by default should be entered in
favor of plaintiff Lopez against defendant in the amount of
$1,947.00 in unpaid wages and overtime plus an additional equal

amount of unliquidated damages pursuant to 29 U.S.C. § 216(b) for
a total amount of $3,894.00 plus costs and a reasonable attorney’s
fee.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that plaintiffs’ motion for entry of judgment by
default be GRANTED, and that judgment be entered in favor of
plaintiffs and against defendant Conway in the amounts stated
above.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to
said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 8th day of July 2011.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge