Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lopez v. Highmark Construction, LLP

United States District Court, D. Colorado

March 29, 2018

JOSE LOPEZ, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
HIGHMARK CONSTRUCTION, LLP, and GABRIEL MATTICE, Defendants.

          ORDER ENTERING DEFAULT JUDGMENT AGAINST DEFENDANTS

          CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a Motion for Default Judgment and to Strike Answer of Corporate Entity, filed by Plaintiffs Jose Lopez and Ricardo Perez (Plaintiffs, collectively) against Defendants Highmark Construction, LLP and Gabriel Mattice (Defendants, collectively). (Doc. # 37.) For the reasons discussed below, the Court enters a default judgment against Defendants.

         I. BACKGROUND

         The following well-pleaded facts are deemed admitted by Defendants and taken as true for purposes of this order. See, e.g., Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 (10th Cir. 2003) (stating that upon default, the defendant admits the plaintiff's allegations).

         Defendant Highmark Construction, LLP is a construction business in Colorado that is owned and managed by Defendant Gabriel Mattice. (Doc. # 1 at ¶¶ 1, 10-11.) Plaintiff Jose Lopez worked as a construction laborer for Defendants from September 2015 to April 2017, totaling about eighty-three weeks. (Doc. # 37-3 at ¶¶ 1, 5.) Plaintiff Perez worked as a laborer for Defendants from January 2017 to March 2017, for a total of twelve weeks. (Doc. # 37-4 at ¶¶ 1, 5.) During their employment, Defendants failed to pay Plaintiffs (1) overtime wages for hours worked beyond forty each workweek; (2) wages for travel time; and (3) wages for break periods required under Colorado law.

         Plaintiff Lopez therefore brought this lawsuit on May 1, 2017, alleging violations of the Fair Labor Standards Act (FLSA), 28 U.S.C. §§ 201 et seq., and the Colorado Wage Order (MWO). Service on Defendants was effected on May 7, 2017. (Doc. # 5.) Defendant Mattice[1] filed an answer to the Complaint on May 18, 2017. (Doc. # 10.) Plaintiff Perez joined in this lawsuit as an opt-in Plaintiff on June 13, 2017. (Doc. # 8-1.) On July 12, 2017, Defendants failed to appear at the Scheduling Conference held before Magistrate Judge Craig B. Shaffer. (Doc. # 12.) The Court then ordered (1) Defendant Highmark Construction, LLP to show cause why default judgment should not be entered against it for failure to retain an attorney and appear in this case, and (2) Defendant Mattice to show cause why default judgment should not be entered against him for failure to appear at the Scheduling Conference. (Doc. # 12.) On August 14, 2017, Defendant Mattice filed a letter with the Court indicating that he and Defendant Highmark Construction, LLP could not afford an attorney and were not aware of the missed Scheduling Conference. (Doc. # 13.) On September 21, 2017, Magistrate Judge Shaffer held a telephone status conference; Defendant Mattice appeared, but Defendant Highmark Construction did not. (Doc. # 16.)

         On November 7, 2017, Plaintiffs served Defendants written discovery requests. (Doc. # 37 at ¶ 12.) Defendants did not respond. (Id.)

         On December 7, 2017, the Court held a second Scheduling Conference. (Doc. ## 25-27.) Neither Defendant appeared at the conference. (Doc. # 27.) On December 8, 2017, the Court ordered both Defendants to show cause by January 8, 2018, why default should not be entered against them for failure to appear at the second Scheduling Conference in violation of court orders. (Doc. # 28.) To date, neither Defendant has responded to the show cause order, nor has Defendant Highmark Construction filed an answer in this case.

         On March 13, 2018, the Clerk of Court entered default as to both Defendants. (Doc. # 36.) That same day, Plaintiffs filed the instant Motion for Default Judgment, requesting damages for earned but unpaid wages and an award of attorney's fees and costs.

         II. DEFAULT JUDGMENT

         Default judgment may be entered against a party who fails to appear or otherwise defend. Fed.R.Civ.P. 55. In order to obtain a judgment by default, the moving party must follow the two-step process described in Rule 55: “first, he or she must seek an entry of default from the Clerk of the Court under Rule 55(a); second, after default has been entered by the Clerk, the party must seek default judgment according to the strictures of Rule 55(b).” Richfield Hospitality, Inc. v. Shubh Hotels Detroit, LLC, No. 10-cv-00526-PAB-MJW, 2011 WL 3799031, at *2 (D. Colo. Aug. 26, 2011).

         At step two, the decision to enter default judgment is “committed to the district court's sound discretion.” Olcott v. Delaware Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (quoting Dennis Garberg & Assocs. v. Pack-Tech Int'l Corp., 115 F.3d 767, 771 (10th Cir. 1997)). Nonetheless, “there must be a sufficient basis in the pleadings” for default judgment to be entered, since a party in default “does not admit mere conclusions of law.” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010).

         A defendant who fails to answer, plead, or otherwise defend an action is deemed to have admitted the well-pleaded factual allegations of the complaint as true. See, e.g., Olcott, 327 F.3d at 1125 (stating that upon default, the defendant admits the plaintiff's allegations); see also Personal Indus. Loan Corp. v. Forgay, 240 F.2d 18, 20 (10th Cir. 1956) (“By failing to appear and permitting a default judgment to be entered, [defendant] admitted only facts well pleaded.”). In addition, the court accepts the undisputed facts set forth in any affidavits and exhibits. Deery American Corp. v. Artco Equip. Sales, Inc., No. 06-cv-01684-EWN-CBS, 2007 WL 437762, at *3 (D.Colo. Feb. 6, 2007) (unpublished).

         Ultimately, default judgment is available “when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights. The default judgment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.