United States District Court, E.D. Virginia, Alexandria Division
PROPOSED FINDINGS OF FACT AND
F. ANDERSON, Magistrate Judge.
matter is before the court on plaintiffs' motion for
default judgment (Docket no. 12) against defendants Moses
Housein ("Housein") and Moses Construction Company,
LLC ("Moses Construction") (collectively the
"defendants"). Pursuant to 28 U.S.C. §
636(b)(1)(C), the undersigned magistrate judge is filing with
the court his proposed findings of fact and recommendations,
a copy of which will be provided to all interested parties.
February 5, 2015, plaintiffs Guillermo Alexander Ulloa
("Ulloa"), Carlos Palacios ("Palacios"),
Ruben Alexis Rivera ("Rivera"), Enrique Alvarenga
("Alvarenga"), and Hill Antonio Castillo
("Castillo") (collectively the
"plaintiffs") filed this complaint alleging that
during their employment by defendants, defendants adhered to
payroll practices that failed to compensate plaintiffs as
required by the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201 et seq. (Docket no. 1)
("Compl."). Specifically, plaintiffs allege that
defendants failed to apply an adjusted rate to
plaintiffs' overtime hours (Compl. ¶ 32) and failed to
compensate plaintiffs for work performed during their last
three weeks of employment (Compl. ¶ 33). The complaint seeks
recovery of unpaid wages and overtime wages, liquidated
damages in an amount equal to twice the amount of unpaid
wages and overtime wages, pre- and post-judgment interest,
and attorney's fees and costs. (Docket no. 1 at 7).
February 6, 2015, summonses were issued for service on
Housein as the registered agent for defendant Moses
Construction and on Housein in his personal capacity at 3101
South Manchester St., #707, Falls Church, Virginia 22044.
(Docket no. 2). On February 27, 2015, Housein was personally
served with a copy of the summons and complaint. (Docket no.
3). As discussed more fully below, service of process was
proper as to both defendants. In accordance with Fed.R.Civ.P.
12(a), a responsive pleading was due from Housein and Moses
Construction on March 20, 2015, twenty-one days after the
effective date of service. Neither defendant has filed an
answer or other responsive pleading and the time for doing so
August 12, 2015, plaintiffs requested an entry of default
against Moses Construction and Housein (Docket no. 4) and
again against Housein (Docket no. 6). On August 13, 2015,
plaintiffs again requested an entry of default against
Housein. (Docket no. 8). Also on August 13, 2015, plaintiffs
filed an affidavit from Virginia Diamond in support of their
request for entry of default. (Docket no. 9). The Clerk of
the Court entered default against defendants on August 13,
2015. (Docket no. 10).
December 14, 2015, the District Judge entered an order
directing plaintiffs to file a motion for default judgment
and an accompanying memorandum and to set a hearing on the
motion for default judgment for Friday, January 15, 2016.
(Docket no. 11). A copy of that Order was also sent to
defendants at their last known mailing address.
January 8, 2016, plaintiffs filed a motion for default
judgment against defendants with an incorporated memorandum
in support (Docket no. 12), a declaration from Ulloa (Docket
no. 12-2 at 1-2) ("Ulloa Decl."), a declaration
from Palacios (Docket no. 12-2 at 3-4) ("Palacios
Decl."), a declaration from Rivera (Docket no. 12-2 at
5-6) ("Rivera Decl."), a declaration from Alvarenga
(Docket no. 12-2 at 7-8) ("Alvarenga Decl."), a
declaration from Castillo (Docket no. 12-2 at 9-10)
("Castillo Decl."), declarations from Virginia
Diamond (Docket nos. 12-3, 12-4), an exhibit detailing the
attorney's fees and costs in this matter (Docket no.
12-5), and a notice of hearing for January 15, 2016 (Docket
no. 12-1). Defendants were served with copies of the motion
for default judgment, declarations in support, exhibit, and
notice of hearing by first-class mail on January 8, 2016.
(Docket no. 12 at 11; Docket no. 12-1 at 2). On January 15,
2016 counsel for the plaintiffs appeared before the
undersigned and no one appeared on behalf of defendants.
following facts are established by the complaint filed on
February 5, 2015 (Compl.) and the motion for default judgment
and declarations in support filed on January 8, 2016. (Docket
Moses Construction is a Virginia limited-liability company
with its principal place of business at 3101 S. Manchester
St., #707, Falls Church, Virginia 22044. (Compl. ¶ 4).
Defendant Housein is an adult resident of Virginia and an
owner, agent, and/or principal of Moses Construction, and
during all times relevant to this action, had the authority
to set wage and hour practices for employees of Moses
Construction. (Compl. ¶ 6). During the relevant time period,
Moses Construction performed construction work on a
multi-family residential property in Richmond, Virginia
("the Richmond project") and was an enterprise
engaged in interstate commerce within the meaning of the
FLSA. (Compl. ¶¶ 5, 9, 11).
are adult residents of Virginia. (Compl. ¶ 3). Plaintiffs
worked for the defendants on the Richmond project from around
June 9, 2014 through about September 9, 2014 and again from
around September 21, 2014 until around October 31, 2014-a
total of 19 weeks. (Compl. ¶ 9). While employed by
defendants, plaintiffs' job duties primarily included
framing, tool operation, and other construction-related
tasks. (Compl. ¶ 10). At all times relevant to this action,
defendants were plaintiffs' employers for purposes of the
FLSA. (Compl. ¶¶ 12, 28-30).
plaintiffs all worked approximately 48 hours per week during
each week they were employed by defendants. (Compl. ¶ 13).
For the time period of June 9, 2014 through September 9, 2014
and September 21, 2014 through October 12, 2014, plaintiffs
were paid a flat hourly wage for all hours worked, including
those worked in excess of forty. (Compl. ¶¶ 13, 14). During
this time period, Ulloa was paid a flat hourly wage of $25.00
an hour (Compl. ¶ 16; Ulloa Decl. ¶¶ 2, 4, 5); Palacios was
paid a flat hourly wage of $20.00 an hour (Compl. ¶ 17;
Palacios Decl. ¶¶ 2, 4, 5); Rivera was paid a flat hourly
wage of $15.00 an hour (Compl. ¶ 18; Rivera Decl. ¶¶ 2, 4,
5); Alvarenga was paid a flat hourly wage of $10.00 an hour
(Compl. ¶ 19; Alvarenga Decl. ¶¶ 2, 4, 5); and Castillo was
paid a flat hourly wage of $20.00 an hour (Compl. ¶ 20;
Castillo Decl. ¶¶ 2, 4, 5). From October 13, 2014 through
October 31, 2014, plaintiffs were not paid by defendants for
their work. (Compl. ¶ 15). Based on the hours plaintiffs
worked and plaintiffs' flat rate of pay, defendants never
paid the plaintiffs at the rate of one and one-half times
their regular rate of pay for overtime hours worked in excess
of forty. (Compl. ¶¶ 13, 32). Additionally, defendants never
compensated the plaintiffs for their regular and overtime
hours for the three-week time period of October 13, 2014
through October 31, 2014. (Compl. ¶ 15). Further,
plaintiffs' work for defendants did not meet the
definition of exempt work under the FLSA. (Compl. ¶ 29).
these allegations are pled as being done willfully,
plaintiffs are entitled to liquidated damages in an amount
equal to those unpaid wages. (Compl. ¶¶ 34, 37).
Findings and Recommendations
of the Federal Rules of Civil Procedure provides for the
entry of a default judgment when "a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend." Based on defendants' failure
to file a responsive pleading in a timely manner, the Clerk
of Court has entered default against the defendants. (Docket
defendant in default admits the factual allegations in the
complaint. See Fed.R.Civ.P. 8(b)(6) ("An
allegation-other than one relating to the amount of
damages-is admitted if a responsive pleading is required and
the allegation is not denied."); see also
GlobalSantaFe Corp. v. Globalsantafe.com, 250
F.Supp.2d 610, 612 n.3 (E.D. Va. 2003) ("Upon default,
facts alleged in the complaint are deemed admitted and the
appropriate inquiry is whether the facts as alleged state a
claim."). Rule 55(b)(2) of the Federal Rules of Civil
Procedure also provides that a court may conduct a hearing to
determine the amount of damages, establish the truth of any
allegation by evidence, or investigate any other matter.
must have both subject matter and personal jurisdiction over
a defaulting party before it can render a default judgment.
28 U.S.C. § 1331 provides that "district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States." Similarly, 28 U.S.C. § 1337(a) provides that
"district courts shall have original jurisdiction of any
civil action or proceeding arising under any Act of Congress
regulating commerce or protecting trade and commerce against
restraints and monopolies." The FLSA itself also states
that any action to recover unpaid minimum or overtime wages
may be maintained "in any Federal or State court of
competent jurisdiction." 29 U.S.C. § 216(b). Since this
action arises from a law of the United States, the FLSA, and
further arises from an Act of Congress regulating commerce,
this court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. §§ 1331 and 1337.
court also has personal jurisdiction over the defendants. As
stated in the complaint, defendant Moses Construction is a
Virginia limited-liability company with its principal place
of business in Falls Church, Virginia, and defendant Housein
is an adult resident of Falls Church, Virginia. (Compl. ¶¶ 4,
6). Venue is also proper in this court pursuant to 28 U.S.C.
§ 1391(b) because a substantial part of the events or
omissions giving rise to plaintiffs' claims occurred in
this district. (Compl. ¶ 9).
these reasons, the undersigned magistrate judge recommends a
finding that this court has subject matter jurisdiction over
this action, that this court has personal jurisdiction ...