Solis v. Supporting Hands, LLC

HILDA L. SOLIS, Secretary of Labor, United States Department of Labor, Plaintiff, v. SUPPORTING HANDS, LLC and MARK DEBOIS, Defendants.

No. CIV 11-0406 JB/KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

April 30, 2013

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Summary Judgment, filed December 13, 2012 (Doc. 20)("Summary Judgment Motion"); (ii) the Defendant Mark DuBois' Motion for Court Appointed Public Defender, filed October 17, 2012 (Doc. 17); (iii) the Plaintiff's Motion to Compel Answers to Interrogatories and Responses to Request for Production of Documents, filed October 29, 2012 (Doc. 19)("Motion to Compel"); and (iv) Plaintiff's Motion to Strike Pleadings of and Enter Default Judgment Against Defendant Supporting Hands, LLC, filed December 13, 2012 (Doc. 21)("Default Judgment Motion"). The Court held a hearing on February 5, 2013. The primary issue is whether the Court should grant summary judgment against Defendants Supporting Hands, LLC and Mark DuBois on the backpay claims of Plaintiff Hilda L. Solis, Secretary of Labor, United States Department of Labor, because the undisputed material facts show that the Defendants violated the minimum wage, overtime, and record keeping provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 ("FLSA"). The Court concludes that there is no genuine issues as to any material facts, that the Defendants violated the minimum wage, overtime, and record-keeping provisions of the FLSA, that Supporting Hands and DuBois are jointly and severally liable for back pay that they owe to their employees in the amount of $17,632.53, that they are liable for an equal amount as liquidated damages, and that the Plaintiff is entitled to judgment in the amount of $35,265.06 as a matter of law. The Court will thus deny the Motion for Court Appointed Public Defender, will grant the Summary Judgment Motion, will grant in part and deny in part the Motion to Compel, and will deny the Default Judgment Motion as moot.

FACTUAL BACKGROUND

The Defendants did not respond to the Plaintiff's Summary Judgment Motion. Because the Defendants failed to file a written opposition to the motion for summary judgment, the Defendants are deemed to have consented to the granting of the Summary Judgment Motion. See D.N.M.LR-Civ. 7.1(b)("The failure of a party to file and serve a response in opposition to a motion within the time prescribed for doing so constitutes consent to grant the motion."); D.N.M.LR-Civ. 7.6(a) ("A response must be served within fourteen (14) calendar days after service of the motion."). Furthermore, because the Defendants have not filed a timely written response contesting any of the paragraphs in the Plaintiff's statement of the undisputed facts, the Court may take the facts as the Plaintiff has stated them. D.N.M.LR-Civ. 56.1(b) states in relevant part:

A memorandum in opposition to the motion must contain a concise statement of the material facts as to which the party contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the opposing party relies, and must state the number of the movant's fact that is disputed. All material facts set forth in the statement of the movant will be deemed admitted unless specifically controverted.

D.N.M.LR-Civ. 56.1(b). Because the Defendants have not "specifically controverted" any of thePlaintiff's stated facts, the Court deems them admitted. Nevertheless, the Court has recognized that "the United States Court of Appeals for the Tenth Circuit has encouraged district courts to decide motions for summary judgment on the merits." Two Old Hippies, LLC v. Catch the Bus, LLC, 807 F. Supp. 2d 1059, 1061 (D.N.M. 2011)(Browning, J.)(citing Woods v. Roberts, No. 94-3159, 1995 WL 65457, at *2 (10th Cir. 1995)(unpublished)("[T]his circuit has expressed concern that pro se litigants not have their suits dismissed on summary judgment merely because they have failed to comply with the technical requirements involved in defending such a motion.")). Cf. Hancock v. Okla. City, 857 F.2d 1394, 1396 (10th Cir. 1988); Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir. 1985)("The rights of pro se litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in a loss of the opportunity to prosecute or defend a lawsuit on the merits.")(quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984)). Because Dubois is proceeding pro se -- and although Supporting Hands is unrepresented by counsel -- the Court will consider the Plaintiff's Summary Judgment Motion on the merits rather than defaulting the Defendants for procedural violations.¹ In the end, however, the Defendants have not contestedany of the Plaintiff's factual assertions, and there is nothing in the record before the Court that suggests that the Plaintiff's factual assertions are not sound or lack factual support. As such, the issues are not in material dispute and what remains for decision is whether the Plaintiff is entitled to judgment as a matter of law.

The United States Department of Labor, Wage and Hour Division ("Wage and Hour Division") conducted an investigation of the Defendants beginning on or about September 5, 2008 through September 3, 2010 (the "investigative period"). Declaration of James Massengale¶ 2, at 1, filed December 13, 2012 (Doc. 20-1)("Massengale Decl."); Summary Judgment Motion ¶ 1, at 2 (setting forth this fact). DuBois is Supporting Hands' only principal. See Clerk's Minutes, at 1; Deposition of Mark DuBois at 48:23-25 (taken Nov. 16, 2012), filed December 13, 2012 (Doc. 20-2)("DuBois Depo."); Summary Judgment Motion ¶ 3, at 2 (setting forth this fact). Supporting Hands' main office is located at 4909 Ellison Street, Suite B, Albuquerque, New Mexico, 87109. See Massengale Decl. ¶ 2, at 1; Summary Judgment Motion ¶ 3, at 2 (setting forth this fact).

During the period from May 2009 to September 2010, Supporting Hands operated institutions primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the institutions' premises. See DuBois Depo. at 14:15-15:18, 44:1-10; Summary Judgment Motion ¶ 4, at 3. Also during this period, Supporting Hands has been providing services with its employees engaged in commerce or handling materials that have moved in interstate commerce, and Supporting Hands' annual gross volume of sales made or business done has not been less than $500,000.00 during this time. See DuBois Depo. at 44:11-46:20. Both Defendants are covered by the FLSA and are employers as the FLSA defines that term. See DuBois Depo. at 19:1-8, 47:2-5.

Wage and Hour Division's Wage and Hour Investigator James Massengale prepared a summary of the Defendants' former and current employees' unpaid back-wages owed for the time period from May 16, 2009, to September 3, 2010. See Wage and Hour Form 56, Massengale Decl. at 6-9 (dated Nov. 27, 2012)("WH-56"). The Defendants' records substantiated that the employees listed on the WH-56 were the Defendants' employees from May 16, 2009, to September 3, 2010. See Massengale Decl. ¶ 7, at 2; Complaint at 6-7, filed May 11,2011 (Doc. 1)(listing affected employees' names); Summary Judgment Motion ¶ 2, at 2 (setting forth this fact). Except for a few alterations, the time and payroll records that the Defendants provided to Massengale accurately recorded the hours per week and the wages paid to Defendants' employees listed on the WH-56. See DuBois Depo. at 19:17-25:24; Summary Judgment Motion ¶ 5, at 3 (setting forth this fact). The Defendants' time and payroll records indicate that the Defendants did not pay their employees covered by the FLSA's overtime provisions one and one-half times their regular pay rate for the hours that the employees worked over forty hours in a week. Rather, the Defendants paid their employees working in excess of forty hours per week the employees' regular straight time rate of pay. See Massengale Decl. at ¶¶ 3 & 4, at 1; DuBois Depo. at 40:14-43:21; Summary Judgment Motion ¶ 5, at 3 (setting forth this fact). DuBois admitted at his deposition that, since he was teenager, he was aware that the law requires employees working more than forty hours in a week to be paid one and one-half times their regular pay rate for hours worked in excess of forty hours per week. See Dubois Depo. at 11:23-12:4, 20:1-5, 34:2-12; Motion for Summary Judgment ¶ 11, at 8 (setting forth this fact).

In a few instances, the Defendants changed their employees' time records to alter the employees' time worked. See DuBois Depo. at 27:6-19;² Summary Judgment Motion ¶ 6, at 3(setting forth this fact). Massengale ascertained when this happened by examining the time records and comparing them with the records of the employees' telephone calls to clock in and out. See Massengale Decl. ¶ 5, at 2; DuBois Depo. at 26:18-28:24; Summary Judgment Motion ¶ 6, at 3 (setting forth this fact). Massengale determined that an employee, on average, was deprived of 7.5 minutes of time each time that the Defendants altered an employee's time records. These altered time records were the reason that the employer did not maintain accurate time and payroll records. See Massengale Decl. ¶ 5 at 2; Summary Judgment Motion ¶ 6, at 3-4 (setting forth this fact). On at least one occasion during the relevant period, the Defendants made deductions from the pay of one employee -- Iesha Martinez -- who owed the Defendants money to pay back a loan. These deductions from Martinez' pay brought her wages below the minimum wage pay rate in multiple weeks. See Massengale Decl. ¶ 6, at 2. DuBois testified at his deposition that, occasionally, the Defendants would lend employees money and they would deduct the loan from the employee's next two or three paychecks, regardless whether the deductions brought the employee's...