Wendt v. Trifecta Sols.

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CODY WENDT, Plaintiff, v. TRIFECTA SOLUTIONS LLC and FRANK D. ALIOTO, Defendants.

No. 23-CV-1415-JPS

United States District Court, E.D. Wisconsin

June 27, 2024

ORDER

J.P Stadtmueller U.S. District Judge

1. PROCEDURAL BACKGROUND

Plaintiff Cody Wendt (“Plaintiff”) sues Defendants Trifecta Solutions LLC (“Trifecta”) and Frank D. Alioto (“Alioto” and with Trifecta, “Defendants”), alleging claims for unpaid minimum wages and overtime wages, as well as failure to pay agreed-upon wages, under the Fair Labor Standards Act (the “FLSA”) and Wisconsin, Illinois, and Indiana law. ECF No. 1.

Plaintiff unsuccessfully attempted to personally serve Defendants at least 16 times and at five different addresses. ECF No. 16 at 1-2; ECF No. 22 at 1. Plaintiff then mailed waiver of service forms to Defendants at their last three known addresses, but all three were returned as undeliverable. ECF No. 16 at 2. Plaintiff's counsel also contacted Alioto's counsel of record in an unrelated state case to locate Alioto but did not receive a response. ECF No. 22 at 2. Accordingly, pursuant to Federal Rule of Civil Procedure 4(e)(1) and Wis.Stat. § 801.11, Defendants pursued service by publication. ECF No. 16 at 5; ECF No. 22 at 2; see also Feb. 5, 2024 Text Only Order. In accordance with Wis.Stat. §§ 801.11 and 985.02, Plaintiff published the publication summons in three newspapers covering Defendants' last five known addresses. ECF No. 22 at 2 (citing ECF Nos. 19, 20). Plaintiff's counsel also mailed the complaint and summonses to each of these five last known addresses. Id. (citing Wis.Stat. § 801.11(1)(c)). Forty days after the first publication was April 1, 2024, which, under Wis.Stat. § 801.09(2)(b), was the date Defendants' answer or other response was due. Id. On April 4, 2024, having received no response to the complaint from Defendants, Plaintiff requested entry of default. Id. The Clerk of Court entered default on April 5, 2024.

Now before the Court is Plaintiff's motion for default judgment, together with a supporting brief and declaration. ECF Nos. 23, 24, 25. Plaintiff served the motion and all related papers on Defendants by mail, presumably at one of the last known addresses, ECF No. 26, but Defendants have not filed any response to the motion in the time allotted under the Local Rules, nor have they otherwise appeared to defend against this action. Civ. L.R. 7(b); Fed.R.Civ.P. 5(b) (explaining proper forms of service). The Court therefore treats the motion as unopposed. See Civ. L.R. 7(b), (d).

For the reasons set forth herein, the motion will be granted. Plaintiff has established Defendants' liability on all of his claims under the FLSA, Wisconsin law, and Illinois law.^[1] Plaintiff has also demonstrated his entitlement to damages because the amount of his damages is either liquidated or ascertainable with certainty from his filings, including his declarations. ECF No. 25. However, as noted supra note 1 and at Plaintiff's request, to prevent a double recovery, the Court will award Plaintiff damages under the statutory scheme that results in the highest recovery: here, Illinois law. ECF No. 24 at 14-15 (citing Triblett v. Arora, 23-CV-993-JPS, ECF No. 23 at 18-19 (E.D. Wis. Feb. 29, 2024); Jones v. Bos-Star Inc., No. 1:19-CV-271-HAB, 2020 U.S. Dist. LEXIS 8354 (N.D. Ind. Jan. 17, 2020); and Villanueva v. Falcon Constr. Co., No. 2:09-CV-107-PPS-PRC, 2010 WL 1577277, at *5 (N.D. Ind. Apr. 14, 2010)). Therefore, judgment by default will be entered in favor of Plaintiff and against Defendants, jointly and severally, in the amount of Plaintiff's maximum recovery under Illinois law. The Court also finds that Plaintiff is entitled to recover attorneys' fees and costs; he shall file his application for attorneys' fees and costs within twenty-one (21) days of the entry of this Order and the default judgment. Id. at 15 (requesting twenty-one days from entry of Order to file fee application).

2. LEGAL STANDARD

Upon entry of default, “the well-pleaded allegations of a complaint relating to liability are taken as true.” VLM Food Trading Int'l., Inc. v. Ill. Trading Co., 811 F.3d 247, 255 (7th Cir. 2016) (quoting Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323 (7th Cir. 1983)). “Accepting those facts as true, a court must determine whether those facts establish that the plaintiff is entitled to the relief it seeks.” Cree, Inc. v. BHP Energy Mex. S. de R.L. de C.V., 335 F.Supp.3d 1105, 1111 (E.D. Wis. 2018) (citing VLM Food, 811 F.3d at 255). If they do, the Court may, in its discretion, grant default judgment to the movant. See Domanus v. Lewicki, 742 F.3d 290, 301 (7th Cir. 2014) (citing Dundee Cement, 722 F.2d at 1322).

Even if default judgment is granted, the movant nevertheless bears the responsibility to prove up its damages under Rule 55(b)(2) of the Federal Rules of Civil Procedure. Indeed, “even when a default judgment is warranted based on a party's failure to defend, the allegations in the complaint with respect to the amount of the damages are not deemed true,” and the Court must conduct an inquiry “to ascertain the amount of damages with reasonable certainty.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 602 (7th Cir. 2007) (quoting In re Catt, 368 F.3d 789, 793 (7th Cir. 2004) (internal bracketing omitted)). Judgment by default may not be entered without a hearing on damages unless “the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits.” Id. (quoting Dundee Cement, 722 F.2d at 1323).

3. FACTS IN THE COMPLAINT^[2]

Plaintiff is an adult resident of Wisconsin. Alioto is also an adult resident of Wisconsin and the owner and registered agent of Trifecta, a limited liability company organized under the laws of Wisconsin. Trifecta operates a landscaping company doing business in Wisconsin, Illinois, and Indiana. Alioto has and continues to have control over the day-to-day operations of Trifecta, including the human resources and compensation aspects of Trifecta as they relate to Plaintiff. Alioto determined the rates and methods of compensation for Plaintiff, including that Plaintiff would not be paid overtime premium compensation when Plaintiff worked more than 40 hours in a workweek.

Defendants employed Plaintiff from June 28, 2023 through August 21, 2023. Defendants agreed to pay Plaintiff an hourly rate of $30.00 per hour for landscaping duties performed for Defendants' customers in Wisconsin, Illinois, and Indiana. Plaintiff pleads that he was an employee and Defendants were employers as defined in the FLSA and under, as pertinent to this motion, Wisconsin and Illinois law. For multiple workweeks, Defendants failed to pay Plaintiff minimum wages, overtime wages, or agreed-upon wages as follows:

• During the workweek ending on July 2, 2023, Plaintiff worked 39.5 hours, earning $1,185.00 in wages. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $1,185.00 during this workweek.

• During the workweek ending on July 9, 2023, Plaintiff worked 37.75 hours, earning $1,132.50 in wages. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $1,132.50 during this workweek.

• During the workweek ending on July 16, 2023, Plaintiff worked 74.25 hours, 34.25 of which were overtime hours, earning $2,227.50 in wages, and an additional $513.75 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $2,741.25 during this workweek.

• During the workweek ending on July 23, 2023, Plaintiff worked 71.50 hours, 31.50 of which were overtime hours, earning $2,145.00 in wages, and an additional $472.50 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $2,617.50 during this workweek.

• During the workweek ending on July 30, 2023, Plaintiff worked 84.00 hours, 44.00 of which were overtime hours, earning $2,520.00 in wages, and an additional $660.00 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $1,000.00. Defendants failed to pay Plaintiff $2,180.00 during this workweek.

• During the workweek ending on August 6, 2023, Plaintiff worked 81.50 hours, 41.50 of which were overtime hours, earning $2,445.00 in wages, and an additional $622.50 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $3,067.50 during this workweek.

• During the workweek ending on August 13, 2023, Plaintiff worked 63.75 hours, 23.75 of which were overtime hours, earning $1,912.50 in wages, and an additional $356.25 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $2,268.75 during this workweek.

• During the workweek ending on August 20, 2023, Plaintiff worked 48.50 hours, 8.50 of which were overtime hours, earning $1,455.00 in wages, and an additional $127.50 in overtime premium compensation. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $1,582.50 during this workweek.

• During the workweek ending on August 27, 2023, Plaintiff worked 4.00 hours, earning $120.00 in wages. During this workweek, Defendants paid Plaintiff $0.00. Defendants failed to pay Plaintiff $120.00 during this workweek. ECF No. 25 at 1-2.

As the above summary indicates, Defendants paid Plaintiff only once in the total amount of $1,000.00, during his fifth workweek. See also ECF No. 25 at 2. Of the 41 days that Plaintiff did landscaping work for Defendants during the above-summarized nine workweeks, 34 of those days involved duties performed in...