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Jesus Velez, et al v. Enterprise Protective Services

August 8, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiffs Jesus Velez*fn1 and Sergio Roque (collectively "Plaintiffs") filed a motion for entry 19 of default judgment on May 20, 2011 after the Clerk of the Court entered default as to Defendant 20 Enterprise Protective Services, Armand Aranda and Does 1-10 ("Defendants"). Pursuant to Civil 21 Local Rule 7-1(b), the Court deems this matter appropriate for resolution without oral argument, 22 and vacates the August 11, 2011 motion hearing and case management conference. Based on 23 inconsistencies in the damages calculations and supporting documentation submitted by Plaintiffs 24 as detailed below, the Court DENIES Plaintiffs' motion without prejudice. Plaintiffs shall submit a renewed motion for default judgment, curing the deficiencies identified below, within 30 days of 2 this Order.

Plaintiffs were employed providing security for local businesses through Enterprise Protective 7 ¶ 5 ("Roque Decl."). These businesses included Mi Pueblo Food Store and an unnamed nightclub. 9


Plaintiffs are two residents of Santa Clara County that worked for Enterprise Protective Services, a corporation with a principal place of business in Gilroy, CA. Compl. ¶¶ 2-3. Both 6 Services for approximately 18 months. Velez Decl. at 19, ¶ 7 ("Velez Decl."); Roque Decl. at 18, 8 Id. During the course of their employment, Plaintiffs allege that they regularly worked in excess of 10 eight hours per day and more than forty hours per week. Compl. ¶¶ 10-11. Each Plaintiff was paid on an hourly basis and received bi-weekly pay checks. Plaintiffs have submitted check stubs for certain periods as documentation of their employment. See Velez Decl., Exh. 1; Roque Decl., Exh 13

1. Plaintiffs also allege that they wrote the number of hours worked on time sheets that were 14 submitted to management. Mot. for Entry of Default Judgment ("Motion") at 3-4. However, 15 Plaintiff Velez claims he was paid $9.00 per hour for the first 39 weeks of employment 17 covering February 2008 to November 2008. Plaintiff Velez alleges he was given a raise to $9.50 18 per hour for the second half of his employment covering November 2008 to December 2009. See 19 id. at 3. Plaintiff Velez claims to have worked twelve hours per day for three days each week. 20 Plaintiff Velez also alleges he worked one extended week per month, consisting of his normal 21 week plus an additional six-hour shift on a "fourth day."

Plaintiffs were not provided with copies of the time sheets. Id.

Plaintiff Roque worked for Enterprise from May 2008 until December 2009 and was paid $10.00 per hour for the majority of his employment, except for his first six weeks where he was 24 paid $9.50 per hour. Plaintiff Roque claims the same work schedule as Plaintiff Velez, working 25 twelve hours per day for three days a week, with an occasional "fourth day" where he worked a six 26 hour shift. See Roque Decl. ¶ 10. However, Plaintiff Roque claims that he worked this extra day 27 every other week, or approximately once per pay period. In addition, Plaintiff Roque worked for Defendants providing security at a night club once a week for a 6 hour shift. He worked this job for two months (approximately July through August 2008) and was paid by a separate check, 2 entitled "BONUS." 3 eight hours per day every day he worked, and more than 40 hours per week every fourth week.

Plaintiff Roque acknowledges that he was occasionally paid overtime, but only when his work 6 exceeded 80 regular-time hours in a two week period. See Motion at 7. However, Plaintiff Roque 7 was never paid daily overtime for his twelve hour days, and was not paid overtime for the weeks he 8 worked more than 40 hours in one week but less than 80 hours in two weeks. Id. In August of Plaintiff Velez states he was never paid any overtime, even though he worked more than 2009, both Plaintiffs' hours were reduced to six hours per day. Plaintiffs do not allege that they 10 were working overtime after August 2009. Id.

Alleging various federal and state causes of action for failure to pay overtime, Plaintiffs filed a Complaint on November 8, 2010. Plaintiffs claim that Defendants are liable for overtime 13 pay under both the California Labor Code and the Federal Labor Standards Act ("FLSA").

Plaintiffs' motion for entry of default judgment.

R. Civ. P. 55(a), the Court may enter a default judgment against the party. See Fed. R. Civ. P. 20 55(b)(2). "A failure to make a timely answer to a properly served complaint will justify the entry 21 of a default judgment." Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986). "The general rule of 22 law is that upon default the factual allegations of the complaint, except those relating to the amount 23 of damages, will be taken as true." TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th 24 Cir. 1987)) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)) (quotation 25 marks omitted). "However, necessary facts not contained in the pleadings, and claims which are 26 legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 27 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).

Defendants have not submitted a response or appeared in this action. ...

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